MASTER TERMS & CONDITIONS OF LEASE AGREEMENTS
THESE MASTER LEASE TERMS AND CONDITIONS (“MLTC”) shall apply to each lease agreement entered into between Credebt Exchange® and the User. Additional financial and other terms are contained in a lease schedule entered into pursuant to the Credebt Exchange® Master Agreement (each a “Lease Schedule” and collectively “Lease Schedules”). Each Lease Schedule together with the terms of these MLTC incorporated therein by reference shall constitute a lease (“Lease”).
Each Lease relates to Equipment (as hereinafter defined) all of which was selected by the User acting as an experienced professional in the use of this type of asset, without the intervention of the Lessor.
Subject to the conditions provided for in these MLTC and in each Lease Schedule, , the Lessor shall lease the Equipment to the User to enable the User to use Equipment.
In these MLTC each of the following terms and expressions, when beginning with a capital letter, shall be understood as having the meaning described herein below, except where the context calls for a different meaning:
“Account Bank” means the Lessor’s Bank account as defined in a Lease Schedule;
“Approved Location(s)” means Ireland;
“Assignment of Insurance Indemnities” means the assignment by way of security granted on the date hereof pursuant to Clause 11.4(a) by the User to the Lessor over the insurance Compensation it would be entitled to pursuant to the Insurance Policies taken out with the Insurance Company;
“Basic Term” has the meaning given to it in a Lease Schedule;
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in Dublin and being a TARGET Day;
“Change of Control” means a change in the identity of the person having Control of a person;
“Compensation” means any proceeds, indemnities or other financial compensation payable by the Insurance Company or the Vendor as a consequence of a damage, loss, deterioration, injury or destruction affecting any Equipment Item or accident caused by the same;
“Control” means owning or controlling more than 50% of the share capital in a company (including rights to acquire shares in a company) or a majority or the directors of the board of a company ;
“Currency” means Euro or Sterling or such other generally accepted currency as may be specified in a Lease Schedule;
“Delivery” means the simultaneous acceptance of Equipment or Equipment Items without reservations by the User as provided by these MTLC;
“End of Term [EoT] Value” means the value outstanding at the end of the Lease Schedule;
“Equipment” means, at any time, the relevant (i) Original Equipment, and (ii) Replaced Equipment, as the case may be, the subject of a Lease;
“Equipment Item” means an individual item of Equipment;
“Equipment Location” means the location of each Equipment Item;
“Equipment Maintained Condition” means the condition of Equipment on the assumption that it maintained and repaired at least as good as any other equipment or piece of equipment of a similar class owned or used by the User and in accordance with the manufacturers recommendations as to use and repair and maintenance of such Equipment;
“Euro”, “€”, and “EUR” each means the single currency of any member state of the European Communities, that adopts or has adopted such currency as its lawful currency in accordance with legislation relating to the European Monetary Union of the European Union;
“Group” means a group of companies constituted by the User and all its Subsidiaries, or parent companies from time to time;
“Insolvency Event” means the occurrence of any of the following events:
(a) the relevant person is unable or admits its inability to pay (or an intention not to pay) its debts as they fall due or is deemed to or declared to be unable to pay its debts or is insolvent under any applicable law, or suspends or threatens to suspend making payments on any of its debts (or any class of them) or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (or any class of them) with a view to rescheduling any of its indebtedness, or is over indebted;
(b) the value of the assets of the relevant person is less than its liabilities (taking into account contingent and prospective liabilities);
(c) a moratorium is declared in respect of any indebtedness of the relevant person;
(d) any corporate action, legal proceedings or other procedure or step is taken or commenced in relation to:
(i) the bankruptcy, seeking a judgment of insolvency, suspension of payments, a moratorium of any indebtedness, winding up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement, examinership or otherwise of the relevant person other than a solvent liquidation or reorganisation of the relevant person (if it is not the User);
(ii) a composition, compromise, assignment or arrangement with any creditor or class of creditors of the relevant person with a view to avoiding financial difficulties of the relevant person;
(iii) the appointment of a liquidator (other than in respect of a solvent liquidation of the relevant person if it is not the User), receiver, administrative receiver, administrator, compulsory manager, trustee in bankruptcy, judicial custodian or other similar officer in respect of the relevant person or any of its assets;
(iv) enforcement of any security over any assets of the relevant person except where such security is over assets with a market value of less than 50,000 Euro in aggregate; or
(e) any event with respect to which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (d) above; or
(f) any action in furtherance of, or indicating the relevant person’s consent to, approval of, or acquiescence in, any of the foregoing acts.
“Insurance Account” means the bank account opened in the name of the Lessor in the books of the Account Bank with IBAN number IE05BARC99021244513404;
“Insurance Confirmation Certificate” means a certificate approved by the Lessor (acting reasonably), confirming, inter alia, that the Equipment is insured and providing details of any damage to, repair of or replacement of any Equipment Item;
“Insurance Policies” has the meaning given to such term in a Lease Schedule;
“Lease Effective Date” has the meaning given to it in a Lease Schedule;
“Lease Expiry Date” means has the meaning given to it in a Lease Schedule;
“Lease Schedule” means the lease schedule entered into by the Lessor and the User, which when entered into shall be read together with the terms of these MLTC to constitute a Lease (as defined in each Lease Schedule).
“Material Adverse Effect” means any effect, event or circumstance which has or could reasonably be expected to have a material adverse effect on:
1. the assets, financial condition or business of the User; or
2. the ability of the User to perform or comply with its obligations under a Lease; or
3. the use, operation, value or profitability of the Equipment;
“Minimum Insured Amount” means the amount specified in a Lease Schedule;
“Original Equipment” means the equipment described in a Lease Schedule;
“Original Equipment Cost” means the price paid by the Lessor for the purchase of each Equipment Item, as specified in a Lease Schedule;
“Partial Loss” means any destruction, damage, loss, condemnation, confiscation, theft, seizure of or requisition of title to or use of the Equipment or an Equipment Item, in each case not constituting a Total Loss;
“Partial Termination Event(s)” means any of the events referred to in Clause 15.1;
“Purchase Arrangement” means the sale and purchase arrangement between the Lessor and the User on or about a Purchase Date specified in the relevant Lease Schedule pursuant to the terms and conditions set out in Clause 23 hereof whereby the User agrees to purchase the Equipment from the Lessor upon fulfilment of the Condition Precedent of full payment of all rents due by the User to the Lessor under the relevant Lease;
“Purchase Date” means the date specified in a Lease Schedule;
“Purchase Price” means the price to be paid by the User to the Lessor for the purchase of Equipment in accordance with the terms of Clause 23 hereof;
“Rent” has the meaning given to it in a Lease Schedule;
“Rental Account” means the Lessor’s Bank Account;
“Rent Payment Date” has the meaning given to it in a Lease Schedule;
“Rent Payment Term” means each period for which a Rent is due as specified in a Lease Schedule, under a Lease;
“Replaced Equipment” means any Equipment Item which replaces an existing Equipment Item in accordance with Clause 12.2;
“Subsidiaries” means, in relation to a company, any companies being under the Control of such company;
“Sterling”, “£”, and “GBP” each means the lawful currency of the United Kingdom;
“TARGET” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which implementation has been initiated in November 2007;
“TARGET Day” means any day on which TARGET is open for the settlement of payments in Euro;
“Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same);
“Tax Amounts” has the meaning ascribed to it in Clause 5.3 hereof;
“Termination Date” means either the date on which a Lease terminates with respect to any Equipment Item following a Partial Termination Event or the date on which the Lease terminates with respect to all the Equipment thereunder following a Termination Event and the sending of a Termination Notice;
“Terminated Equipment Item” means an Equipment Item which has been subject to a Partial Termination Event under a Lease;
“Termination Value” or “TV” means, at any given time and in relation to any Equipment Item, the amount resulting from the following formula:
TV = Total Lease Obligation Value – Rent payments received
“Termination Event(s)” means each of the events or circumstances set out in Clause 16.1;
“Termination Notice” means a notification of termination provided by the Lessor to the User pursuant to Clause 16.1;
“Total Lease Obligation Value” means the total amount of Rent payments due by the User to the Lessor under a Lease Schedule assuming the Lease continued to the end of the Basic Term;
“Total Loss” means any of the following facts, situations or events which may affect all or part of the Equipment or Equipment Items being either:
(a) the complete loss or destruction of the Equipment or Equipment Item or any loss or destruction of the Equipment or Equipment Item which the relevant insurance company agrees to deem as complete; or
(b) the fact that the Equipment or Equipment Item is affected by irreparable damage or made unfit for normal use for any reason whatsoever; or
(c) the seizure, requisition, confiscation, sequestration, exercise of a public or public-related right of pre-emption, nationalization, expropriation of the Equipment or Equipment Item (for a reason which is not attributable to the Lessor) for a period exceeding thirty (30) days; or
(d) any other event, in particular, but not limited to, the misappropriation, theft or disappearance of the Equipment or Equipment Item, having the effect of making it unavailable for a period exceeding ten (10) days;
“Transaction Documents” means any document related to the transaction entered into in relation to a Lease of Equipment and including among others these MLTC, a Lease Schedule, and a Vendor Buy Back Agreement;
“VAT” means value added tax and any other Tax, whether domestic or foreign, levied by reference to added value, sales, use or supplies and any Tax which may replace the same or be substituted therefor;
“Vendor” means each seller of any Equipment as defined in a Lease Schedule; and
“Vendor Buy-Back Agreement” means the buy-back agreement between the Lessor and the relevant Vendor in respect of any Equipment, the subject of a Lease.
Any reference in a Transaction Document or any other agreement is a reference to that document or that agreement as amended or novated, supplemented, extended or restated.
1. PURPOSE AND DURATION OF THESE MASTER LEASE TERMS AND CONDITIONS
1.1 With a view to the use of Equipment by the User, and subject to the terms and conditions provided for in each Lease Schedule and these MTLC, the Lessor shall provide the Equipment to the User by way of lease for a duration starting on each Lease Effective Date until each Lease Expiry Date.
1.2 Each Lease Schedule combined with these MTLC shall govern the lease of Equipment therein referenced from the relevant Lease Effective Date until the relevant Lease Expiry Date (which, for the avoidance of doubt, shall be the same for the Original Equipment and the Replaced Equipment).
2. CHOICE, TRANSFER OF PROPERTY AND ACCEPTANCE OF THE EQUIPMENT
2.1 The User hereby expressly declares and acknowledges that it has personally chosen the Vendor or, as the case may be, the manufacturers of the Equipment, the Equipment, and their technical specifications, without the Lessor’s assistance, on the basis of its own technical and professional experience and according to its own operating requirements and hereby expressly acknowledges and agrees that the Lessor shall not be deemed to have made or given any representation or warranty, express or implied arising by law or otherwise with respect to the Equipment. Consequently, the Lessor shall not have any liability whatsoever to or towards the User or any other person (the User expressly waiving any right to any claim on any ground whatsoever) with respect to the Equipment, in particular with respect to its design, use, reliability, condition, operation, efficiency, profitability and any defective functioning or non-compliance with the specifications of any agreement for purchase of the Equipment or any concealed defects which might affect the same, its use or harm which it might cause to property or persons.
Moreover, should the User be the Vendor, it expressly declares that it is already in possession of and uses the Equipment and the Equipment Items, and has full knowledge thereof.
2.2 The User acknowledges that, as at the date of each Lease, the relevant Original Equipment is located as recorded in each Lease Schedule and that such location will only be changed in accordance with and to the extent authorised pursuant to the terms of these MLTC. The User hereby confirms to the Lessor that (i) all of the Original Equipment is insured in accordance with the requirements of each Lease, (ii) the technical experts duly authorised by the User have examined and verified, with due care, all of the Original Equipment in order to ensure their compliance with the User’s requirements, all of the Original Equipment complies with the provisions of each Lease and is satisfactory for all purposes, (iii) all of the Original Equipment is fully operational and functioning at least to the performance levels determined by the Vendor or, as the case may be, the manufacturers of the Equipment and (iv) all of the Original Equipment is in production mode (or capable of prompt commencement of production mode), in total conformity with all health and safety regulations relating to operator safety and any environmental legislation in force (relating in particular, but not exclusively, to pollution, hygiene and security). The User will be deemed to make the same acknowledgements and confirmations as are set out in this Clause 2.2 regarding Original Equipment in respect of Replaced Equipment as at the date the Replaced Equipment becomes subject to the lease in accordance with the terms of these MLTC.
2.3 Subject to the provisions of Clause 12 (Damage – Loss of the Equipment) and to the extent that no Termination Event has occurred, the Lessor agrees that the User may use the Compensation for the repairs or replacements of any Equipment Items which have been the subject of a Partial Loss or a Total Loss.
If the User fails to preserve or safeguard the Equipment, the Lessor is entitled to take any action it considers necessary for the preservation or safeguarding of the Equipment at the User’s cost.
3.1 Rent Payment
(a) Subject to Clause 3.2, the User shall pay Rent to the Lessor as set out in each Lease Schedule.
(b) All payments of Rent will be in the Currency specified in each Lease Schedule.
(c) Except as provided for herein, each of the Rent Payment Terms shall be for the Period specified in each Lease Schedule.
3.2 Rent Adjustment
(a) Partial Termination Event
(i) If a Partial Termination Event occurs and the User has paid the Termination Value (and any other sums referred to in Clause 4.3) in respect of the Terminated Equipment Item to the Lessor, the Rent will reduce in accordance with paragraph (a)(iii) below with effect from the Rent Payment Term immediately following the Rent Payment Term in which such Termination Value (and any other sums referred to in Clause 4.3) is paid.
(ii) So long as the Termination Value is not paid, the Rent shall continue to be paid as if the Partial Termination Event had not occurred.
(iii) Following the payment of the Termination Value referred to in paragraph (a)(i) above (and any other sums referred to in Clause 4.3) in full, the Rent payable on all subsequent Rent Payment Dates shall be reduced by the amount of Rent attributable to the relevant Equipment Item, and the Lease Schedule, at paragraph C thereof shall be amended accordingly by the Lessor, as contemplated by Clause 19 (Updating Appendices).
(iv) The Lease will continue in respect of all remaining Equipment, and the adjusted Rent shall continue to be due and payable in accordance with the Lease in respect of the remaining Equipment.
(b) Replaced Equipment
For the avoidance of doubt, if an Equipment Item is replaced in accordance with Clause 12.2 the amount of the Rent which is attributable to the Replaced Equipment shall be equal to the amount of the Rent previously attributable to the Equipment Item it replaced.
4.1 Payments shall be made by automated bank transfer, direct debit, credit or debit card, or such other payment mechanism as may be agreed. The User hereby authorises the Lessor to conduct test payments on any new payment method, pursuant to which the Lessor may take a payment of up to EUR 1.00. Unless otherwise provided, all sums payable by the User pursuant to a Lease must be received in clear funds on the Rental Account by no later than midday (Dublin time) on the due date. Save as specifically set out in 4.2 below, only payments made by or on behalf of the User into the Rental Account, shall be credited as paid hereunder.
4.2 The User may select to pay the Rent and other amounts due to the Lessor under a Lease to the Vendor, strictly on the basis that the Vendor shall in turn pay such amounts to the Lessor on behalf of the User PROVIDED HOWEVER that in the event that the User selects such payment method and the Lessor does not receive any or all of the amounts due to it under a Lease, the User shall remain fully liable to pay and discharge such sums to the Lessor, and the Lessor shall be entitled to forthwith collect such unpaid sums from the User.
4.3 No unavailability of any Equipment Item, nor any dispute or claim of any nature whatsoever shall affect or suspend the User’s duty to make, on the due date, any of the payments provided for by a Lease. The User acknowledges and agrees that its obligations to pay all amounts of Rent due and owing under the terms of a Lease for so long as such lease is continuing shall be absolute and unconditional and shall not be affected by any circumstance whatsoever.
4.4 Where the User is required to pay any Termination Value, such amount shall be paid by the User, together with (i) all reasonable costs, reasonable expenses, Taxes, duties and other charges or expenditures borne or due by the Lessor in connection with or as a result of the payment of such amount or the event triggering the payment of such Termination Value and (ii) (in the case of the payment of any Termination Value in respect of all the Equipment) all other sums then owing by the User to the Lessor under such Lease.
4.5 All sums payable by the User under the Lease shall be paid free and clear of all deductions or withholdings and without set-off or counterclaim (including those for or on account of Tax) unless a deduction or withholding is required by law, in which event, or in the event that the Lessor incurs any liability to Tax on any such sums, the amount of the payment due from the User shall be increased so as to ensure that the net amount received and retained by the Lessor (after Tax) equals the amount which would have been received and retained by the Lessor had no such deduction or withholding been required or liability to Tax been incurred.
5. TAXES, DUTIES AND EXPENSES
5.1 All sums payable by the User under a Lease are expressed exclusive of any VAT which may be chargeable thereon and the User shall pay to the Lessor in addition to any other sums due the amount of any VAT for which the Lessor is liable to account to any Tax authority in respect of any sums payable by (or any others supplies to) the User under a Lease. In the event of the reverse charge mechanism applying, the User shall pay the relevant amount of VAT direct to the relevant taxation authority and the Lessor shall provide the User with a valid VAT invoice in this respect.
5.2 The User shall be liable for and bear the cost of any Tax, duty, withholding, or charge payable or any other expense, of any nature whatsoever (and whether assessable against the Lessor or the User), which are related to the Equipment or Equipment Items, or to the Delivery, holding, ownership, possession, exploitation, use, lease or control of the same. In particular, but without any limitation, any duties or fees or other taxes due on the receipt, Delivery, lease, use, or repair of the Equipment or of Equipment Items and all customs duties, shall be borne by the User which shall proceed with the regular payment, on the due date, of all sums thus due.
5.3 Any tax, duty, withholding, charge or any other expense, of any nature whatsoever, whether Irish or foreign, which is not applicable on the date hereof but which shall become due after the execution of the Lease by the User or the Lessor (other than corporation tax owed in Ireland by the Lessor in respect of the Rent) as a result of or in relation to a Lease which is related to the Equipment or Equipment Items, or to the holding, Delivery, ownership, possession, exploitation, use, lease or control of the same by the User, in particular any duties or fees or other taxes due on the receipt, Delivery, lease, use, or repair of the Equipment or the Equipment Items and all customs duties (the “Tax Amounts”), shall be borne and paid by the User as and when they fall due.
5.4 In the event the User fails to comply with the duties falling to it for payment of any Tax Amount, the Lessor may comply with said duties on its behalf and the User shall immediately reimburse the Lessor for the entirety of such Tax Amounts incurred in this respect on its first demand.
5.5 If the User becomes liable for any Tax Amounts specified in Clause 5.3 above, the Lessor and the User shall enter into negotiations (for a period of no more than thirty calendar days) with a view to finding a mutually acceptable solution regarding payment of such Tax Amounts, and:
(a) If, at the end of the thirty calendar day period, the parties have not been able to reach an agreement on the payment of the Tax Amounts, the User shall have the option to either (i) pay the Tax Amounts, or (ii) terminate the lease and pay the Termination Value (and any other sums referred to in Clause 4.3) for the entirety of the Equipment.
(b) If, in compliance with the provisions of Clause (a) above, the User decides to pay and does pay the Termination Value (and any other sums referred to in Clause 4.3) for the entirety of the Equipment in full, the User will be deemed to have paid all sums due under the Lease and the Lease shall terminate.
6. USE, CLEANING, MAINTENANCE AND CONTROL OF THE EQUIPMENT
6.1 The User hereby undertakes to comply and to procure that it is complied with all applicable domestic and, where relevant, international laws, regulations and any instructions which are in force and applicable governing the Equipment or Equipment Items (including notably its use, storage, repair and maintenance), and to use, store, repair and maintain the Equipment in accordance with their intended use, storage, repair and maintenance and the manufacturers’ recommendations. In addition, the User hereby undertakes to comply and to procure that it is in compliance with the applicable technical requirements and instructions which may be given by any competent authority in this respect. The User will use the Equipment, in accordance with all applicable laws, regulations and mandatory rules on safety, pollution (atmospheric, ground or noise), hygiene and transport in force.
6.2 The User hereby undertakes to obtain from the competent authorities all authorisations or renewal of authorisations necessary for the use and operation of the Equipment and shall provide substantiation thereof at the request of the Lessor.
6.3 All costs required for the installation, use, storage, repair, maintenance and good working condition of the Equipment shall be borne by the User. The User shall constantly take and will constantly take all steps necessary in order to preserve, keep in good working condition and maintain the Equipment in the Equipment Maintained Condition. Documentary evidence of all maintenance and repairs will be retained by the User and made available to the Lessor at the annual inspections, or upon written request. In the latter case, the User shall provide the requested information within 15 calendar days (or immediately upon request following a Termination Event) following such written request.
6.4 The User shall take responsibility for general and technical maintenance of the Equipment in compliance with the manufacturers’ recommendations and the Equipment Maintained Condition.
6.5 The User must, at all times, ensure that the Equipment comprises all spare parts and accessories as are required by laws, regulations, safety instructions, manufacturers’ recommendations and provisions of a Lease. The spare parts, Equipment Items and accessories of any nature whatsoever which will be incorporated in the Equipment in the course of performance of the Lease for the replacement of other spare parts, Equipment Items and accessories shall immediately, fully and automatically form an integral part of the Equipment and as such the Lessor shall have the ownership of the fully repaired or Replaced Equipment without any indemnification or payment by the Lessor to the User unless otherwise agreed in writing by the Lessor and the User.
6.6 In the event of malfunction of the Equipment or an Equipment Item, or in the event that the User is unable to use or operate the Equipment or Equipment Items for any reason and for any length of time whatsoever, in particular in the event of deterioration, damage, theft, strike or stoppage required for cleaning or repair, even in the event of force majeure, no action may be brought against the Lessor in order to obtain the termination or rescission of the Lease, to defer its entry into effect or to formulate any claim for damages, reduction in Rent or any other claim.
6.7 The User hereby undertakes to submit the Equipment, at its own cost, to any inspection as required by the legislation or regulations in force as may apply to the Equipment, and to comply immediately with any injunction or order from the authorities.
6.8 The User undertakes to permit the Lessor or any third party designated by it to have access to and inspect the Equipment upon giving reasonable notice and requesting access at reasonable times (except if a Termination Event occurs in which case the Lessor may require immediate access from the User). The Lessor or any person designated by it may proceed with an inspection of the Equipment or selected Equipment Items and/or verify the location, conditions of maintenance, repair and use of the Equipment or selected Equipment Items. The User shall demonstrate that it will procure to the Lessor’s satisfaction that the Equipment is at least in the same operating condition as when originally commissioned into service. The User accepts that such inspections may cause the Equipment or selected Equipment Items to be stopped for short periods of time. The User shall provide all assistance that the Lessor may reasonably require. The User undertakes neither to defer nor to interrupt payment of the Rent during this period.
6.9 The User may not proceed with any works which involve a modification of the components or structure of the Equipment insofar as said works would be such as to alter the type or category of the Equipment with respect to any regulations applicable to the Equipment (including any regulation applying to any security over the Equipment), without the Lessor’s prior consent in writing. Any work permitted under this Clause 6.9 shall not change the Equipment in a way which would be detrimental to the value of the Equipment or its intended use.
7. IDENTIFICATION OF THE EQUIPMENT
The User must comply with all statutory or regulatory provisions and any customs and practices related to the identification of the Equipment. It must perform any duty related thereto, for which the Lessor shall provide, where necessary, its assistance. The User must produce in particular, all compulsory documents upon requisition by the competent authorities.
8. PROPERTY OF THE EQUIPMENT
8.1 The User acknowledges that the Equipment shall remain the exclusive property of the Lessor during the entire duration of the Lease.
8.2 For so long as any Equipment is leased under the Lease, the User shall ensure that the Equipment is situated at the Approved Locations in accordance with the provisions of Clause 10 (Equipment Location) hereof.
8.3 The User must respect the Lessor’s property rights to the Equipment in all circumstances, by all means and at its own cost. In the event of an attempt to seize, attach, requisition or confiscate the Equipment or Equipment Items, the User shall immediately inform the Lessor and, upon request by the Lessor (except in the event of attempt to seize, attach, requisition or confiscate for grounds attributable to the Lessor), shall take charge of all claims and adopt all measures in order to have the Lessor’s right of ownership recognised and obtain, at the expense of the User, any release of seizure or attachment, or as applicable, any decision ending measures of requisition or confiscation of the Equipment or Equipment Items, within a period of ten (10) days as of the date of the seizure, attachment, requisition or confiscation. The User shall bear all costs of such proceedings save that the Lessor shall reimburse such costs to the User but only to the extent that such proceedings and the costs associated therewith were caused by the Lessor’s default under any of its legal or contractual obligations.
8.4 In the event judicial proceedings should be necessary for the Lessor in order to regain possession of the Equipment or Equipment Items seized, attached or provided to a third party, the User shall bear all costs arising therefrom of whatsoever nature.
8.5 Provided that no Termination Event has occurred (or with the passage of time, has not been cured, if able to be cured), the Lessor undertakes to provide the User with quiet enjoyment of the Equipment and warrants that neither the Lessor nor any person acting through the Lessor shall take any action contrary to the User’s rights under a Lease or otherwise interfere during a Lease in relation to any Equipment Item with the use, possession and quiet enjoyment of such Equipment Item by the User. The Lessor agrees not to sell the Equipment and the Lessor undertakes not to assign any of its rights under the Lease nor voluntarily create any lien (and if so, it shall promptly take such action as may be necessary to duly discharge any such lien) in respect of the Equipment except (i) under or in connection with or as permitted by the Lease, (ii) unless compelled by any Applicable Law or (iii) unless such sale or assignment is subject to the terms of the Lease or upon a termination of the Lease pursuant to Clause 15 or Clause16.
8.6 The User shall ensure that the Equipment is not placed at the disposal of a third party, sublet or otherwise used. Furthermore, the User shall not and shall not permit any other person to pledge or otherwise grant any security interest or assign or transfer any of its rights in the Lease or in any Equipment Item except with the prior written consent of the Lessor.
9. SUB-LEASING OF THE EQUIPMENT
The User shall not be entitled to sub-lease all or part of the Equipment except with the prior written consent of the Lessor.
10. EQUIPMENT LOCATION
The User shall not be entitled to relocate any Equipment Item except with the prior written consent of the Lessor.
11. LIABILITY AND INSURANCE POLICIES
For the entire duration of the Lease, the User shall be exclusively liable towards the Lessor and to third parties for any loss, damage, cost and expense directly or indirectly caused by the Equipment, or on the occasion of its use, storage, maintenance and repair, to persons or property, including its own property, even where such loss, damage, cost and expense arises from a manufacturing defect, whether apparent or hidden, assembly defect (without prejudice however to the claims made by the User pursuant to Clause 2.3 above), or a case of force majeure or otherwise, and the User may not seek the Lessor’s liability directly or through its introduction as third party in this respect.
Without prejudice to the other provisions of the Lease, during the entire duration of the Lease, the User undertakes to keep in place, at its own expense, the Insurance Policies, covering its civil liability and that of the Lessor and its officers with respect to the Equipment and covering material damage. The Insurance Policies shall insure the Equipment to at least the Minimum Insured Amount. The Insurance Policies must cover all risks of damage or loss whatever their cause, including but not limited to environmental risks (except customary exclusions in this type of insurance policy), wherever the Equipment may be situated.
For the avoidance of doubt, the User shall ensure that all Equipment Items shall be covered by the Insurance Policies from the date on which the ownership of the relevant Equipment Item is transferred to the Lessor.
11.3 Changing Insurance Company or Insurance Policy
If the User decides to change the Insurance Company or any of its Insurance Policies, it must give the Lessor at least ten Business Days’ prior written notice of such change and ensure that the cover for the risks mentioned above shall be continuously covered and shall not be less than those in existence at the date hereof. The new insurance company must be chosen amongst reputable insurance companies with international cover. The User shall provide the Lessor, as soon as it obtains them, the brokers’ confirmation of the implementation and adequacy of the replacement insurance policy.
11.4 Insurance Terms and Conditions
(a) Assignment of Insurance Indemnities
In order to secure the full and punctual payment of the Rents, upon the entry into each Lease, by the combination of each Lease Schedule and these MLTC, the User hereby assigns by way of security its rights to payment of any insurance Compensation payable by the Insurance Company (up to the amount of the insurance Compensation but excluding the amounts to be paid directly to the repairer of the Equipment, the seller of Replaced Equipment or any injured third party) to the Lessor, up to the amount of such Rents. The Insurance Company shall irrevocably accept all the obligations resulting from the above assignment in the Insurance Adequacy Letter.
(b) The Insurance Policies taken out with the Insurance Company must provide that the Lessor is named as loss payee for all Compensation payable by the Insurance Company (other than Compensation payable directly to the repairer or the seller of a Replaced Equipment or to an injured third party) and that the Lessor is deemed to be an additional insured party.
(c) The User shall procure that under the relevant Insurance Policy, the Insurance Company shall have no right of subrogation or any right of recourse against the Lessor concerning the Equipment.
(d) The User shall pay, on the due date, all premiums and all costs and taxes related to the Insurance Policies taken out and shall provide evidence thereof without delay to the Lessor. The same applies to any renewal of the Insurance Policies.
(e) In the event the User should fail to comply with the duties falling to it for insurance purposes pursuant to the Lease, the Lessor may comply with said duties on its behalf and the User shall immediately reimburse the Lessor for the entirety of the expenses incurred in this respect on its first demand.
(f) The User shall manage and maintain its insurances in a prudent, diligent and reasonable manner.
12. DAMAGE – LOSS OF THE EQUIPMENT
(a) The User shall notify the Lessor in writing in the event of (i) damage, loss, deterioration, injury or destruction affecting any Equipment Item or accident caused by the same which could lead to the payment of Compensation, and (ii) any actions or claims against the Vendor.
(b) The User must carry out or have carried out all necessary notifications to the Vendor and the Insurance Company within the periods provided for by the terms applicable to the Equipment sale or, as relevant, the Insurance Policies and undertake all steps, fulfil all formalities and initiate all necessary expert appraisals.
(c) As a consequence of the Assignment of Insurance Indemnities, any insurance Compensation relating to any damage, loss, deterioration, injury or destruction affecting an Equipment Item shall be paid by the Insurance Company to the Lessor and credited into the Insurance Account, except when such Compensation shall be paid directly by the Insurance Company to the repairer or the seller of a Replaced Equipment to an injured third party. If for any reason whatsoever the above monies are not paid to the Lessor but to the User, the User undertakes to transfer immediately such received amount to the Lessor.
12.2 Partial Loss
(a) Provided no Termination Event is continuing, in the event of a Partial Loss in relation to one or more Equipment Items, the User shall be entitled to require that the Compensation which has been received by the Lessor from the Insurance Company, and credited into the Insurance Account in accordance with Clause 12.1(c) above, be applied to the reinstatement and/or repair of an Equipment Item or Equipment Items for which the relevant insurance claim was made or to which the relevant Vendor claim relates, provided that such Compensation is so applied as soon as possible after receipt thereof and in any event within 120 days of such receipt (or a contractual commitment is entered into within 120 days to apply such Compensation within 150 days of the receipt and such Compensation is in fact applied within that period, evidence of which shall be provided promptly by the User).
(b) If the Compensation is not applied in the reinstatement and/or repair of the damaged Equipment Item(s) within the time-frame referred to in paragraph (a) above, the Lessor shall be entitled to keep the insurance Compensation until all amounts due by the User to the Lessor under a Lease are fully and unconditionally paid; after the Lease Expiry Date, if all such amounts are paid to the Lessor, the Lessor shall return any insurance Compensation to the User.
(c) Upon the occurrence of a Partial Loss, the User undertakes to provide the Lessor as soon as practicable with a written description of the nature and the circumstances which generated the said Partial Loss.
(d) On no account may the User suspend, delay or interrupt payment of the Rent during the repair to or the replacement of Equipment Items.
12.3 Total Loss
(a) The occurrence of a Total Loss of an Equipment Item shall constitute a Partial Termination Event in respect of such Equipment Item pursuant to Clause 15. On the occurrence of a Total Loss of an Equipment Item, the User shall, at its own discretion, either:
(i) pay the Termination Value (and any other sums referred to in Clause 4.3) relating to such Equipment Item on the last day of the Rent Payment Term during which the Total Loss has occurred (or, if the Total Loss occurs less than 5 Irish Business Days before the last day of the Rent Payment Term, on or before the last day of the next Rent Payment Term and continue to pay Rent in the meantime); or
(ii) continue to pay the Rent when due on the relevant Rent Payment Dates in relation to such Equipment Item until the date on which the Lessor receives the Compensation relating to such Total Loss and for a maximum period of 6 months; at the expiry of the 6-month period, the Termination Value shall be paid. Upon receipt, if any, of the Compensation within such 6-month period, the Lessor shall be entitled to set off the amount of Termination Value payable by the User as a consequence of the considered Total Loss against the amount of the Compensation received from the Insurance Company.
(b) For the avoidance of doubt, if the Compensation paid by the Insurance Company or the Vendor and remitted to the Lessor is not at least equal to the Termination Value for that Equipment Item (and any other sums referred to in Clause 4.3), the User shall indemnify and pay to the Lessor an amount equal to the difference between the Termination Value (and any other sums referred to in Clause 4.3) and the Compensation no later than on the last day of the then current Rent Payment Term. If the amount of the Compensation exceeds the amount of the Termination Value to be paid by the User to the Lessor for that Equipment Item (and any other sums referred to in Clause 4.3), the Lessor shall pay to the User an amount equal to such excess.
(c) If the User has paid the Termination Value to the Lessor in accordance with the provisions of paragraph (a)(i) above before any Compensation is paid to the Lessor any Compensation received by the Lessor shall be promptly transferred to the User. The Lessor procures that it will request the Lessor to transfer such Compensation to the User in compliance with the terms of this paragraph.
13.1 The User agrees to defend, indemnify on demand and hold harmless the Lessor, and its permitted successors, assigns, shareholders, Subsidiaries, affiliates, directors, officers, servants, agents and employees from and against any and all claims, proceedings, losses, liabilities, suits, judgments, costs, expenses, penalties or fines (regardless of when the same is made or incurred, whether during the lease or after a Lease Expiry Date) which may at any time be suffered or incurred, directly or indirectly, in respect of:
(a) any breach in whole or in part (by action or failure to act) by the User, of any of the provisions of a Lease or any laws, regulations or other norms applicable to the use of the Equipment;
(b) the ownership, Delivery, possession, lease, transportation, control, use or operation of the Equipment (unless the charge results from gross negligence or intentional fault by the Lessor) or the exercise by the User of any agency or attorney rights on behalf of the Lessor; or
(c) any claim resulting from the lack of CE certification for any Equipment Item which is legally required to have such certification.
13.2 If the User is required to make payments under Clause 13.1(c) above, the User may, elect either to (i) continue to pay the Rent and continue to meet its obligations under Clause 13.1 (c) or (ii) decide to terminate the Lease and pay the Lessor the Termination Value (and any other sums referred to in Clause 4.3) for all the Equipment. If, in compliance with the provisions of paragraph (ii) above, the User decides to terminate the Lease and does pay the Termination Value (and any other sums referred to in Clause 4.3) for the entirety of the Equipment in full, the User will be deemed to have paid all sums due under the Lease and the Lease shall terminate.
14. REPRESENTATIONS AND WARRANTIES
14.1 Representations of the User
The User hereby represents and warrants that the following facts and information are true and correct on the date of execution of each Lease, on the occurrence of each Partial Termination Event, and on each Rent Payment Date:
(a) the User is a company, duly incorporated and validly existing and in good standing under the law of its jurisdiction of incorporation;
(b) the execution of each Lease in the name and on behalf of the User has been duly and validly authorised, and each signatory has (or had) full power to execute such Lease;
(c) each Lease Schedule incorporating these MLTC constitutes legal, valid and binding obligations of the User, enforceable against the User;
(d) the execution and the performance of each Lease does not cause any breach of the provisions of (i) its articles of association, (ii) any applicable law or regulations, (iii) any other agreement or deed whatsoever to which the User is a party or by which it is bound;
(e) all authorisations required to make each Lease admissible in evidence in the jurisdiction of incorporation of the User have been obtained and are in full force and effect save where the failure to obtain the same would not be adverse to the interest of the Lessor;
(f) neither the execution and delivery by the User of each Lease, nor the performance by the User of its obligations thereunder:
(i) conflicts or will conflict with or violate in any material respect any currently existing Applicable Law binding upon the User or on any of its properties;
(ii) conflicts or will conflict with, or contravene, violate or result in a breach in any material respect of, any indenture, mortgage, loan agreement or any other agreement or instrument to which the User is a party or by which any of its properties is bound, in any such case if such conflict does or will materially adversely affect the financial condition or the business or assets of the User or its ability to perform its obligations under such Lease;
(iii) results or will result in the creation or imposition of any lien upon any Equipment Item; or
(iv) requires or will require, on the part of the User, the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any government entity of its place of incorporation;
(g) all information that the User has provided or will provide throughout the term of each Lease is true, complete and accurate in all material respects;
(h) no Termination Event has arisen or is likely to arise;
(i) the User is not in default in any material respect under any Lease;
(j) the User is not a party to any litigation or proceedings and there are no actions against it, which will affect its capacity to fulfil its duties fully under any Lease;
(k) there are no reasonable grounds to suspect that the User is unable to pay its debts as and when they become due and payable and the User is not subject to any Insolvency Event, or in either case will become so by entering into a Lease or performance of transactions thereunder;
(l) the entry into, and performance by the User, of its obligations under each Lease is for its commercial benefit and in its commercial interest;
(m) the Equipment to which the European directive 2006/42 of 17 May 2006 is applicable is “CE” certified and complies with the European Health and Safety and Environmental legislation;
(n) no transfer, stamp or other registration Taxes or duties are payable by the Lessor or the User in connection with any Lease or any transaction thereby contemplated; and
(o) all sums payable under each Lease by the User may be made without any deduction or withholding for or on account of any Tax.
14.2 Representations of the Lessor
The Lessor hereby represents and warrants that the following facts and information are true and correct for the duration of a Lease:
(a) the Lessor is a company incorporated under the laws of Ireland and registered in the Companies Registered Office in Dublin, Ireland;
(b) the execution of each Lease in the name and on behalf of the Lessor has been duly and validly authorised; and
(c) the entry into and performance by the Lessor of its obligations under each Lease is for its commercial benefit and in its commercial interest.
15. PARTIAL TERMINATION
15.1 Partial Termination Events applicable to all Equipment Items
Each of the following events or circumstances shall constitute a Partial Termination Event with respect to any Equipment Item:
(a) a Total Loss pursuant to Clause 12.3; or
(b) a Partial Loss where any Compensation is not applied in accordance with Clause 12.2; or
(c) any other event specified in a Lease Schedule.
15.2 Termination Procedure
Upon a Partial Termination Event occurring as provided for in Clause 15.1 and following payment by the User of all amounts due in accordance with this Clause 5, the Terminated Equipment Item will cease to be subject to the terms of the Lease.
15.3 Termination Value and Costs
(a) Upon the occurrence of a Partial Termination Event as set out in Clause 15.1, the User shall pay to the Lessor the applicable Termination Value in respect of each Terminated Equipment Item (and any other sums referred to in Clause 4.3) on the last day of the Rent Payment Term during which the Partial Termination Event has occurred (or, if the relevant Total Loss occurs less than 5 Irish Business Days before the last day of the Rent Payment Term, on or before the last day of the next Rent Payment Term).
(b) If the User is unable to pay the Termination Value on the appropriate date referred to above, it shall continue to pay the Rent in relation to the Terminated Equipment Item so long as the Lessor has not received the Compensation payable in respect of the considered Total Loss and for a maximum period of 6 months. At the expiry of this 6 month period, should the Compensation not be received by the Lessor, the Termination Value shall be paid.
(c) Upon receipt, if any within the 6 month period mentioned above, of the Compensation by the Lessor, the Lessor shall be entitled to set off the amount of Termination Value payable by the User as a consequence of the considered Partial Termination Event against the amount of the Compensation received from the Insurance Company.
(d) For the avoidance of doubt, if the Compensation paid by the Insurance Company and remitted to the Lessor is not at least equal to the Termination Value for the considered Terminated Equipment Item (and any other sums referred to in Clause 4.3), the User shall indemnify and pay to the Lessor an amount equal to the difference between the Termination Value (and any other sums referred to in Clause 4.3) and the Compensation received no later than on the last day of the then current Rent Payment Term. If the amount of the Compensation (and any other sums referred to in Clause 4.3) received by the Lessor exceeds the amount of the Termination Value to be paid by the User to the Lessor, the Lessor shall pay to the User an amount equal to such excess.
(e) Once all sums due by the User pursuant to this Clause 15.3 have been paid to the Lessor, the Rent shall be adjusted in accordance with Clause 3.2(a) above.
15.4 Transfer of Title
Upon the occurrence of a Partial Termination Event, and subject to (i) the payment by the User of all sums set out in Clause 15.3 and (ii) any person having a security interest over the relevant Equipment Item having released the security interest granted over such Equipment Item, the Lessor shall procure that the ownership of the Equipment Item that has been the object of a Total Loss (in whatever condition it may be following the Total Loss and without any obligation on the Lessor to do anything in relation to the relevant Equipment Items) shall pass to the User by delivery and the User will be released from the duty of restitution concerning that Equipment Item at the end of the Lease.
16. TERMINATION EVENTS
16.1 Termination Events
The Lessor may by written notice to the User (hereinafter the “Termination Notice”), without any other formality being needed, terminate the User’s rights under the Lease, five (5) Irish Business Days following the sending of the Termination Notice, upon any of the events or circumstances listed below occurring, and irrespective of the User’s ability to prevent the same from arising or to control its causes or effects:
(a) the non-payment on its due date of any amount under any Lease between the Lessor and the User occurs at the place and in the Currency in which it is payable unless payment is made within the timeframe specified in a Lease Schedule;
(b) the failure by the User to comply with any provision of any Lease (other than those referred to in Clause (a) above) unless such failure is capable of remedy and is remedied within the timeframe specified and starting on the day the Lessor has given notice to the User of such failure or the User has become aware of such failure;
(c) any breach, misrepresentation, misstatement, breach of warranties or default (howsoever defined) under any Lease, unless such breach, misrepresentation, misstatement, breach of warranties or default is capable of remedy and is remedied within the timeframe and starting on the day the Lessor has given notice to the User of such breach, misrepresentation, misstatement, breach of warranties or default or the User has become aware of such breach, misrepresentation, misstatement, breach of warranties or default;
(d) any expropriation, attachment, sequestration, distress or execution affects any asset or assets of a member of the Group for an aggregate value specified and if it is not discharged within a period of time specified;
(e) any authorisation, consent, license, approval or registration necessary for any Lease to be valid and binding ceases to be in full force and effect which materially affects the Lessor’s rights under any such Lease or in relation to any Equipment Item;
(f) the User commits an act of negligence which materially affects the Lessor or an act of wilful misconduct with respect to any Lease to which it is a party which is not cured within a period of time specified;
(g) the User is subject to an Insolvency Event;
(h) any Transaction Document or any obligation under any Transaction Document becomes illegal, void, voidable, unenforceable or any Transaction Document or any obligation under any Transaction Document is otherwise terminated and such event is not cured (if possible to be cured) within a period of time specified;
(i) any party (other than the Lessor) to any Lease rescinds or purports to rescind or repudiates or purport to repudiate this agreement in whole or in part;
(j) any of the security interests granted or purported to be granted under any Transaction Document ceases to be valid, effective or enforceable or ceases to have the ranking that it is purported to have;
(k) a Total Loss occurs over all the Equipment;
(l) the occurrence of a Change of Control, but only if the Lessor so decides;
(m) a Total Loss in respect of one or more Equipment Items which represents more than 50% of the Original Equipment Cost of all Equipment;
(n) it becomes unlawful for any party under any Transaction Document to perform any of its material obligations under any Transaction Document;
(o) any event or circumstance occurs (other than those described in paragraphs (a) to (m) (inclusive) above) which has or is reasonably likely to have a Material Adverse Effect.
16.2 The User shall immediately following receipt of a Termination Notice:
(a) return all the Equipment (or, as the case may be, the relevant Equipment Items specified in the Termination Notice) (the “Applicable Equipment”) to the Lessor (at the location designated by the Lessor) in a condition which complies with the Equipment Maintained Condition, with transportation and all other costs and expenses in connection therewith being the responsibility of and paid for by the User and the risks pertaining to the Applicable Equipment as well as the duty to insure the Applicable Equipment being borne by the User, until the date of effective restitution of the Applicable Equipment to the Lessor; and
(b) pay the Termination Value and any other sums owed by it to the Lessor on the Termination Date (including the sums referred to in Clause 4.3) in respect of all the Applicable Equipment.
The sums owed by the User shall extend to include all costs, expenses, Taxes, duties, rents and other charges or expenditures borne by the Lessor as a result of such termination. In addition, the User shall pay to the Lessor any expenses and fees (including any fees for counsel and court costs) incurred by the Lessor and related to the return and restoration into the Equipment Maintained Condition, if necessary, of all the Applicable Equipment. As of the receipt by the Lessor of all of the sums referred to hereinabove, the User will be deemed to have paid all sums due under the Lease and the Lease shall terminate.
16.3 The early termination of the Lease, however arising, shall not create any duty on the part of the Lessor for the restitution, even partial restitution, of Rent and accessories or any other sum owed pursuant to the Lease.
17. LATE PAYMENT PENALTIES
17.1 Late payment interest
If the User fails to pay, on the due date, any sum owed by it pursuant to the Lease, the User shall pay interest to the Lessor on the amount in default, without formal notice being necessary, as of the day on which it is due until the day of actual payment (whether this is before or after a court decision). This interest rate shall be Euribor plus 12% and compounding on each Rent Payment Date. All such interest shall be due by the User in Euro.
17.2 Late payment indemnity
If the User fails to pay, on the due date, any amount owed by it under the Lease, and if such non-payment has triggered the sending by the Lessor (or on its behalf) to the User of a notice seeking remedy for such non-payment, the User shall pay to the Lessor an amount of up to EUR 1,000 for each such notice.
For the entire duration of the Lease, the User at its own expense shall comply with the following undertakings:
18.1 As regards the Lease
(a) to comply with each Lease to which it is a party;
(b) not to amend or waive in any respect nor terminate any Lease without the Lessor’s prior written consent;
(c) to take all reasonable and practical step to preserve and enforce its rights and pursue any claim and remedies arising in relation to the Equipment;
(d) promptly upon becoming aware of such event, to notify the Lessor of the occurrence of any Termination Event;
18.2 As regards the Equipment
(a) to comply with the Equipment Maintained Conditions;
(b) to ensure that all Equipment Items which are located in Europe are and remain CE certified (where such certification is legally required) and comply with the applicable health and safety and environmental legislation;
(c) to provide the Lessor, with all such information relating to the Equipment as it may reasonably request;
(d) not to use the Equipment nor permit the Equipment to be used for any purpose for which it is not designed or in contravention of any applicable law or regulation;
(e) not to carry out any act or have the Lessor carry out any act, and not to make any commitment or have the Lessor make any commitment, which would reasonably be likely to have a Material Adverse Effect on the value of the Equipment, whether directly or indirectly;
(f) not to directly or indirectly sell, assign, transfer, mortgage, charge, part with possession of, or otherwise deal with or dispose in any way of the Equipment nor agree to do any of the foregoing nor permit any other thing to be done other than in accordance with the provisions of a Lease;
(g) not to do or omit to do anything or permit anything to be done or omitted to be done which would or could reasonably be expected to result in any or all of the Equipment being confiscated, requisitioned, seized, taken in execution, impounded or otherwise taken from the possession of the User, and in the event of any such confiscation, requisition, seizure, impounding or taking, the User shall notify the occurrence of such event to the Lessor and take all necessary steps to procure an immediate release of the relevant Equipment;
(h) comply with the laws and taxation regulations in the country of its incorporation and in all countries in which it does business or in which any Equipment Item is located;
18.3 As regards damage and insurance
(a) promptly upon becoming aware of such event, to notify the Lessor of details of any material damage to the Equipment or any suspension of operation of the Equipment or of any insurance claim arising or insurance payment being made in respect of or relating to the Equipment;
(b) to promptly notify the Lessor of any bodily injury or property damage caused by the Equipment or any Equipment Item and giving rise to insurance indemnities to third parties, and to provide them with evidence of notification of the same to the Insurance Companies; further, to ensure that any claim arising against the Lessor in relation thereto be covered and handled by the User’s civil liability insurance;
(c) without prejudice to the other provisions of a Lease, to pay the Rent under the Lease notwithstanding the occurrence of any damage to the Equipment;
(d) to notify the Lessor of any insurance claims arising or any Compensation payments to be made in respect of the Equipment or any Equipment Item;
(e) to subscribe for and generally maintain all insurance policies which are compulsory or usual in its type of activities;
(f) to provide an Insurance Adequacy Letter:
(i) annually, at the latest on the date specified in a Lease Schedule, and
(ii) on the date of appointment of a new insurance company or underwriter, or on the date of any change in the Insurance Policies,
each time (x) evidencing that it is insured regarding the Equipment (and its related civil liability) at least for the Minimum Insured Amount, and (y) acknowledging that the Lessor will have priority in the payment of insurance Compensation over other creditors or over the User in case of competing rights on such insurance Compensation;
(g) no later than 30 days of the anniversary of the Lease Effective Date as defined in a Lease Schedule of each calendar year, to provide Insurance Confirmation Certificates signed by an authorized signatory of the User, confirming that the Equipment is insured for the Minimum Insured Amount, detailing the nature and circumstances of any damage to and any repair or replacement of any Equipment Item during the past semester and confirming that the provisions of Clause 11.2 (Insurance) and Clause 11.4 (Insurance Terms and Conditions) are complied with (and accompanied with due evidence thereof);
(h) to inform the Lessor of any change in insurance company or insurance cover;
(i) to ensure that the Equipment is at all times covered for the Minimum Insured Amount and in accordance with the Insurance Adequacy Letter, and in particular to ensure that any aggregate limits of indemnity in any Insurance Policy are monitored regularly to maintain such compliance; failing such compliance, to promptly subscribe for additional insurance cover.
18.4 As regards general information
(a) as a general principle, to provide the Lessor with the same level of information as that provided to its senior lenders;
(b) to promptly provide any further information regarding the Lease or the financial condition, business and operations of the members of the Group as the Lessor may reasonably request.
19. UPDATING APPENDICES
19.1 The Rent will be amended by the Lessor as soon as practicable after each date on which a Termination Value (and any other sums referred to in Clause 4.3) in respect of a Partial Termination Event is paid to the Lessor or each time there is any change in any reference to the Equipment Items appearing in a Lease Schedule. An amendment to a Lease shall be entered into by the Lessor and the User to implement such change.
19.2 Each time the Rent or an Equipment Item hereto is amended or otherwise updated in accordance with Clause 19.1, the Lessor will adopt the same methodology and calculation formulae as the ones adopted when preparing the original Rent. The User agrees and acknowledges that the updated amounts with respect to Rent and Termination Value and, if relevant, any related percentages in the amended or updated appendices delivered by the Lessor will be conclusive (save in the case of manifest error).
20. SECURITY INTERESTS
20.1 Assignment of Insurance Indemnities
As security for the full performance of its obligations under the Lease, the User has granted to the Lessor, on the date of each Lease Schedule, the Assignment of Insurance Indemnities.
21. EXERCISE OF RIGHTS AND ACTIONS
No failure to act nor any delay in the exercise by the Lessor of any right, action, power or privilege held by it pursuant to the Lease shall be construed as a waiver to exercise such right, action, power or privilege or its relinquishment. Similarly, no partial or isolated exercise of any right, action, power or privilege by either of the parties shall impede any new or subsequent exercise of such right, action, power or privilege, or the exercise of any other right, action, power or privilege.
22. CONDITIONS PRECEDENT
The Lessor’s obligations under a Lease shall be subject to the Lessor being satisfied with the occurrence of the conditions precedent which may be specified in writing by the Lessor in advance of entering into a Lease.
23. END OF LEASE – PURCHASE OR DELIVERY OF EQUIPMENT
23.1 (a) Provided the User shall have paid all amounts of Rent due the Lessor up to and including the Lease Expiry Date in respect of any Equipment Item (the “Condition Precedent”), (unless the Lessor shall waive in whole or in part the User’s obligation to have satisfied the Condition Precedent), the Lessor shall, in its sole discretion, sell and the User shall purchase, on the relevant Purchase Date, such Equipment Item upon payment by the User to the Lessor of the Purchase Price (together with all taxes and VAT due thereon) in respect of such Equipment Item.
23.1 (b) Subject to the satisfaction of the Condition Precedent in full, and the payment of the Purchase Price (as set out in a Lease Schedule) (together with any VAT due thereon), the sale of the Equipment by the Lessor to the User shall take effect and title to the Equipment shall pass by delivery from the Lessor to the User on the Purchase Date.
23.1 (c) The User hereby agrees to accept the sale of the Equipment in an “as is where is” condition. The Lessor and the User expressly recognise that the Lessor was not involved in the conception, the manufacture, the assembly or the construction of the Equipment and that the choice of the Equipment was made by the User.
23.2 In the event that the Condition Precedent is neither satisfied or waived and the sale described in 23.1 does not occur, the User shall (at its own cost), on the Lease Expiry Date (or, if the relevant Lease is terminated before the Lease Expiry Date, on the relevant Termination Date), transfer all and not less than all of the Equipment, in good working conditions, free of any lien or security interest, to the Lessor or to any other entity designated by the Lessor and if relevant, with the keys to the Equipment.
24. ASSIGNMENT – TRANSFER – SECURITY
24.1 The User is not entitled to assign or transfer any or all of its rights and obligations under any Lease.
24.2 The Lessor is entitled to assign or transfer any or all of its rights and obligations under any Lease.
25. LEASE SERVICER
The Lessor may appoint a lease servicer to carry out certain functions including (without derogating from the generality from the foregoing) to perform inspections.
26.1 The User shall promptly on demand pay the Lessor the amount of all costs and expenses (including legal and technical expert fees) incurred by the Lessor in connection with the negotiation, preparation, printing and execution of each Lease and all Transaction Documents.
26.2 In the event that, following a modification required by any legislative or regulatory authority, it becomes necessary to proceed with new formalities for the publication or performance of the agreements concluded within the framework of the operation for a lease of the Equipment or necessary for the validity or the performance of any rights in security agreed on the occasion of this operation, the User shall bear all costs related to carrying out these formalities.
26.3 The User shall promptly indemnify the Lessor for any legal costs, court costs, fees and other expenses which the Lessor may need to incur as a result of (a) any amendment of any Transaction Document made compulsory by any legislative, regulatory or judicial authority and any related costs or expenses incurred in responding to, evaluating, negotiating or complying with that amendment, or (b) the failure by the User to perform its duties as arising from any Lease, or (c) in particular, costs arising from the restitution of the Equipment or in connection with the preservation of any rights of the Lessor under a Lease or any of its secured creditors under any Transaction Document.
27. RECOURSE – THIRD PARTY CLAIMS
If at any time during a Lease it is necessary to file any action or claim or to defend against any action or claim in court or before any regulatory or administrative authority in relation to any Equipment Item or any other matter arising from a Lease, the Lessor shall give the User written notice of such claim, and the User shall be responsible for prosecuting or defending in court or before such regulatory or administrative authority such action or claim at its own cost and risk.
Consequently, the Lessor sub-delegates to the User the express power to act or defend before the courts or any regulatory or administrative authority, make all demands, mandate legal attorneys, and follow all procedures the User may (acting reasonably and in the interest of the Lessor) consider necessary in relation to any claim or action against the Equipment or the Lessor’s ownership of the Equipment, provided that such action is not prejudicial to the Lessor and this power may be revoked at any time by the Lessor. If the Lessor is requested or required to intervene in such procedures, the User shall indemnify and secure the Lessor to the Lessor’s reasonable satisfaction against all costs and expenses reasonably and properly incurred thereby. Except as set out above, the Lessor shall not interfere with the User’s actions under this sub-delegation of the express power (with the exception of Lessor’s requests to the User for copies of documentation and Lessor’s prior approval of all settlements).
The User shall keep the Lessor informed on a regular basis of all negotiations and proceedings. The prior approval of the Lessor shall be required for all the documents that will be prepared by the User and sent on the Lessor’s behalf. No claim shall be settled without the Lessor’s approval in writing, such approval not to be unreasonably withheld.
All costs and expenses (including legal fees) relating to any claim with respect to the Equipment shall be borne by the User without any recourse against the Lessor.
28. NON RECOURSE
The User hereunder agrees to limit its recourses (if any) against the Lessor under the Lease to the Lessor’s interest in the Equipment (other than by reason of the fraud of the Lessor). The User also expressly undertakes not to take any action directed at initiating insolvency proceedings against the Lessor, nor to take any corporate action or other steps or legal proceedings for the winding up, dissolution or re-organisation of the Lessor or the appointment of an administrator, trustee, liquidator, sequestrator, or similar officer of the Lessor or to make any claim over all or any of the Lessor’s revenues and assets.
29. PARTIAL INVALIDITY
If any provision whatsoever of any Lease is or becomes, pursuant to applicable laws, unlawful, invalid or null and void, the lawfulness, validity or applicability of the remaining provisions hereof shall not be affected or lessened in any manner whatsoever.
30. ENTIRE AGREEMENT
30.1 This Master Lease Terms and Conditions and each Lease Schedule together constitute the entire agreement between the parties in respect of each Lease regarding the use of the Equipment (as defined in each Lease Schedule)and supersedes any previous agreement or arrangement, whether express or implied in respect of such Equipment..
30.2 The parties acknowledge that any and all previous lease arrangements or possessions agreement entered into between the parties in relation to the Equipment are superseded by the Lease.
The Lessor may set-off any matured obligation due from the User to the Lessor against any obligation owed by the Lessor to the User under any Lease. It may do so regardless of the place of payment or Currency of either obligation and may set off contingent obligations as well as presently due obligations. If the obligations are in different currencies, the Lessor may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
32. SURVIVING CLAUSES
The obligations of the User under Clauses 4, 5, 3, 7, 6, 4 and 7 hereof shall survive any termination of the Lease.
Each Lease may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Lease.
34. GOVERNING LAW
This Agreement, and any non-contractual obligations arising out of or in respect thereof, shall be governed by and construed in accordance with the laws of Ireland.
The courts of Ireland are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with a Lease and accordingly any legal action or proceedings arising out of or in connection with this Agreement (“Proceedings”) may be brought in such courts. The parties irrevocably submit to the jurisdiction of such courts and waive any objections to Proceedings in such courts on the ground of venue or on the ground that the Proceedings have been brought in an inconvenient forum.
36. SERVICE OF PROCESS
36.1 “Service Document” means a writ, summons, order, judgement or other document relating to or issued in connection with any proceedings.
36.2 Any Service Document shall be deemed to have been duly served if:
(a) left at the specified address for such Party in the Lease Schedule; or
(b) sent to the specified address by pre-paid post.
In case of Clause (a), the Service Document shall be deemed to have been duly served when it is left. In case of Clause (a), the Service Document shall be deemed to have been duly served two (2) Business Days after the date of posting.
36.3 A copy of any Service Document served on an agent shall be sent by post to the User. Failure or delay in so doing shall not prejudice the effectiveness of service of the Service Document.
Any notice, notification or other communication provided under the Lease shall be made in writing and shall be sent by e mail to the e mail address supplied by each party hereto, confirmed by registered letter with return receipt requested sent to the addresses of each of the parties referred to herein or such other address as a party may specify.
The date of receipt of any notification or letter shall be that appearing on the e mail.
38. ELECTRONIC SIGNATURE
The parties hereby agree, including for the purposes of the Electronic Commerce Act, 2000, that: (i) words in an electronic form shall be deemed to be “writing” for the purposes of all applicable legislation where “writing” is required; (ii) words in an electronic form shall be deemed to be “signed” for the purposes of all applicable legislation where a “signature” is required; (iii) electronic evidence shall be admissible in any court or other quasi-judicial proceedings between the parties; and (iv) the parties consent to the receipt of communications, including but not limited to quotes, contracts and/or invoices, in electronic form.