AGILITY LEASE FUND I, LLC MASTER LEASE AGREEMENT #5510
AGILITY
LEASE FUND I, LLC
MASTER
LEASE AGREEMENT #5510
THIS
MASTER LEASE AGREEMENT (this "Lease")
is made
as of May 4, 2005 between Agility Lease Fund I, LLC ("Lessor")
and
NextPhase Wireless, Inc. . ("Lessee").
Lessee
desires to lease from Lessor the equipment and other property (the "Equipment")
described in each Equipment Schedule executed pursuant to this Lease (each,
a
"Schedule”)
incorporating by reference the terms and conditions of this Lease (the term
"Lease"
shall
also include any Riders to this Lease entered into with respect to such
Schedule). Certain definitions and construction of certain of the terms used
in
this Lease are provided in Section 19 hereof.
For
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Lease agree as follows:
1.
AGREEMENT TO LEASE; TERM. This
Lease is effective as of the date specified above. By entering into a Schedule,
Lessor leases the Equipment described therein to Lessee, and Lessee leases
such
Equipment from Lessor, in each case, subject to the terms and conditions
in this
Lease and such Schedule and all of the other documents and agreements executed
in connection herewith (collectively, the "Lease
Documents").
Each
Schedule, incorporating the terms and conditions of this Lease, will constitute
a separate instrument of lease. The term of lease with respect to each
item
of
Equipment leased under a Schedule shall commence on the date of execution
of
such Schedule and continue for the term provided in that Schedule.
2.
RENT. Lessee
shall pay Lessor (a) the rental installments ("Basic Rent") as and when
specified in each Schedule, without demand, and (b) all of the other amounts
payable in accordance with this Lease, such Schedule and/or any of the other
Lease Documents ("Other Payments", and together with the Basic Rent,
collectively, the "Rent"). Upon Lessee's execution thereof, the related Schedule
shall constitute a non-cancelable net lease, and Lessee's obligation to pay
Rent, and otherwise to perform its obligations under or with respect to such
Schedule and all of the other Lease Documents, are
and
shall be absolute and unconditional and shall not be affected by any
circumstances whatsoever, including any right of setoff, counterclaim,
recoupment, deduction, defense or other right which Lessee may have against
Lessor, the manufacturer or vendor of the Equipment (the "Suppliers"), or
anyone
else, for any reason whatsoever (each, an "Abatement"). Lessee agrees that
all
Rent shall be paid in accordance with Lessor's or Assignee's written direction.
Time is of the essence. If Lessee fails to pay any rent or any other sum
to be
paid by Lessee to Lessor hereunder within five (5) days after the due date
thereof, Lessee will pay Lessor (a) a late charge of ten percent (10%) of
the
amount, (b) Lessor’s collection costs paid third parties relevant to the
collection thereof and (c) Lessor’s standard returned check charge, if
relevant.
3.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF LESSEE. Lessee
represents, warrants and agrees that, as of the effective date of this Lease
and
of each Schedule: (a) Lessee has the form of business organization indicated,
and is and will remain duly organized and existing in good standing under
the
laws of the state specified under Lessee's signature and is duly qualified
to do
business wherever necessary to perform its obligations under the Lease
Documents, including each jurisdiction in which the Equipment is or will
be
located. Lessee's legal name is as shown in the preamble of this Lease; and
Lessee's Federal Employer Identification Number and organizational number
are as
set forth under Lessee's signature.
Within
the previous six (6) years, Lessee has not changed its name, done business
under
any other name, or merged or been the surviving entity of any merger, except
as
disclosed to Lessor in writing. (b) The Lease Documents (1) have been duly
authorized by all necessary action consistent with Lessee's form of
organization, (2) do not require the approval of, or giving notice to, any
governmental authority, (3) do not contravene or constitute a default under
any
applicable law, Lessee's organizational documents, or any agreement, indenture,
or other instrument to which Lessee is a party or by which
it
may be bound, and (4) constitute legal, valid and binding obligations of
Lessee
enforceable against Lessee, in accordance with the terms thereof. (c) There
are
no pending actions or proceedings to which Lessee is a party, and there are
no
other pending or threatened actions or proceedings of which Lessee has
knowledge, before any court, arbitrator or administrative agency, which,
either
individually or in the aggregate, would
have
a
Material Adverse Effect. As used herein, "Material
Adverse Effect" shall
mean (i) a materially adverse effect on the business, condition (financial
or
otherwise), operations, performance or properties of Lessee, or (ii) a material
impairment of the ability of Lessee to perform its obligations under or remain
in compliance with such Schedule or any of the other Lease Documents. Further,
Lessee is not in default under any financial or other material agreement
that,
either individually, or in the aggregate, would have the same such effect.
(d)
All of the Equipment covered by such Schedule is located
solely in the jurisdiction(s) specified in such Schedule. (e) Under the
applicable laws of each such jurisdiction, such Equipment consists (and shall
continue to consist) solely of personal property and not fixtures. Such
Equipment is removable from and is not essential to the premises at which
it is
located. (f) The financial statements of Lessee (copies of which have been
furnished to Lessor) have been prepared in accordance with generally accepted
accounting principles consistently applied ("GAAP"),
and
fairly present Lessee's financial condition and the results of its operations
as
of the date
of
and for the period covered by such statements, and since the date of such
statements there has been no material adverse change in such conditions or
operations. (g) With respect to any Collateral, Lessee has good title to,
rights
in, and/or power to transfer all of the same. (h) The Supplier is not an
affiliate of Lessee. (i) The Supply Contract (as such term is hereinafter
defined) represents an arms' length transaction and the purchase price for
the
Equipment specified therein is the amount obtainable in an arms' length
transaction between a willing and informed buyer and a willing and
informed
seller under no compulsion to sell.
4.
FURTHER ASSURANCES AND OTHER COVENANTS. Lessee
agrees as follows: (a) Lessee will furnish Lessor with (1) Lessee's balance
sheet, statement of income and statement of retained earnings, prepared in
accordance with GAAP, certified by a recognized firm of certified public
accountants, within one hundred twenty (120) days of the close of each fiscal
year of Lessee, (2) Lessee's quarterly financial report certified by the
chief
financial officer of Lessee, within sixty (60) days of the close of each
fiscal
quarter of Lessee, and (3) all of Lessee's Forms 10-K and 10-Q, if any,
filed
with
the
Securities and Exchange Commission ("SEC")
as and
when filed (by furnishing these SEC forms, or making them publicly available
in
electronic form, Lessee shall be deemed to have satisfied the requirements
of
clauses (1), (2) and (3). (b) Lessee shall obtain and deliver to Lessor and/or
promptly execute or otherwise authenticate any documents, filings, waivers
(including any landlord and mortgagee waivers), releases and other records,
and
will take such further action as Lessor may reasonably request in furtherance
of
Lessor's rights under any of the Lease Documents. Lessee
irrevocably authorizes Lessor to file UCC financing statements ("UCCs"),
and
other filings with respect to the Equipment or any Collateral.
Without
Lessor's prior written consent, Lessee agrees not to file any corrective
or
termination statements or partial releases with respect to any UCCs filed
by
Lessor pursuant to this Lease. (c) Lessee shall provide written notice to
Lessor: (1) thirty (30) days prior to any change in Lessee's name or
jurisdiction or form of organization; (2) promptly upon the occurrence of
any
Event of Default (as defined in Section 15) or event which, with the lapse
of
time or the giving of notice, or both, would become an Event of Default (a
"Default");
and
(3) promptly upon Lessee becoming aware of any alleged violation of applicable
law relating to the Equipment or this Lease.
5.
CONDITIONS PRECEDENT. Lessor's
agreement to purchase and lease any Equipment under a Schedule, is conditioned
upon Lessor's
determination
that all of the following have been satisfied: (a) Lessor having received
the
following, in form and substance reasonably satisfactory to Lessor: (1) evidence
as to due compliance with the insurance provisions of Section 11; (2) if
requested, lien searches in the jurisdiction of Lessee's organization, and
wherever else Lessor deems appropriate; (3) UCCs, real property waivers and
all
other filings required by Lessor; (4) a certificate of an appropriate Officer
of
Lessee certifying: (A) resolutions duly authorizing the transactions
contemplated in the applicable Lease Documents, and (B) the incumbency
and signature of the officers of Lessee authorized to execute such documents;
(5) if requested by Lessor, an opinion of counsel for Lessee as to each of
the
matters set forth in sub-parts (a) through (c) of Section 3; (6) the only
manually executed original of the Schedule, and counterpart originals of
all
other Lease Documents; (7) all purchase documents pertaining to the Equipment
(collectively, the "Supply
Contract");
(8) if
requested by Lessor, good standing certificates from the jurisdiction of
Lessee's organization and the location of the Equipment, and evidence of
Lessee's organizational
number; and (9) such other documents, agreements, instruments, certificates,
opinions, and assurances, as Lessor reasonably may require. (b) All
representations and warranties provided by Lessee in favor of Lessor in any
of
the Lease Documents shall be true and correct on the effective date of the
related Schedule (Lessee's execution and delivery of the Schedule shall
constitute Lessee's acknowledgment of the same). (c) There shall be no Default
or Event of Default under the Schedule or any other Lease Documents. The
Equipment shall have been delivered to and
accepted
by Lessee, as evidenced by the Schedule, and shall be in the condition and
repair required hereby; and on the effective date of such Schedule Lessor
shall
have received good title to the Equipment described therein, free and clear
of
any claims, liens, attachments, rights of others and legal processes
("Liens").
6.
ACCEPTANCE UNDER LEASE. Lessor
hereby appoints Lessee as Lessor's agent for the sole purpose of accepting
delivery of the Equipment from the Supplier. Upon delivery, Lessee shall
inspect
and, if conforming to the condition required by the applicable Supply Contract,
accept the Equipment and execute and deliver to Lessor a Schedule describing
such Equipment. The Schedule will evidence Lessee's unconditional and
irrevocable acceptance under the Schedule of the Equipment described therein.
However, if Lessee fails to accept delivery of any item of the Equipment,
or
accepts such Equipment but fails to satisfy any or all of the other conditions
set forth in Section 5, Lessor shall have no obligation to purchase or lease
such Equipment. In such event, Lessor's rights shall include, among other
things, the right to demand that Lessee (a) fully assume all obligations
as
purchaser of the Equipment, with the effect of causing Lessor to be released
from any liability relating thereto, (b) immediately remit to Lessor an amount
sufficient to reimburse it for all advance payments, costs, taxes or other
charges paid or incurred with respect to the Equipment (including any of
such
amounts paid by Lessor to Supplier under the Supply Contract or as a
reimbursement to Lessee), together with interest at the Late Charge Rate
accruing from the date or dates such amounts were paid by Lessor until
indefeasibly repaid by Lessee in full, and (c) take all other actions necessary
to accomplish such assumption.
7.
USE AND MAINTENANCE. (a)
Lessee shall (1) use the Equipment solely in the continental United States
and
in the conduct of it business, for the purpose for which the Equipment was
designed, in a careful and proper manner, and shall not permanently discontinue
use of the Equipment; (2) operate, maintain, service and repair the Equipment,
and maintain all records and other materials relating thereto, (A) in accordance
and consistent with (i) the Supplier's recommendations and all maintenance
and
operating manuals or service agreements, whenever furnished or entered into,
including any
subsequent amendments or replacements thereof, issued by the Supplier or
service
provider, (ii) the requirements of all applicable insurance policies, (iii)
the
Supply Contract, so as to preserve all of Lessee's and Lessor's rights
thereunder, including all rights to any warranties, indemnities or other
rights
or remedies, (iv) all applicable laws, and (v) the prudent practice of other
similar companies in the same business as Lessee, but in any event, to no
lesser
standard than that employed by Lessee for comparable equipment owned by or
leased by it; and (B) without limiting the foregoing, so as
to
cause the Equipment to be in good repair and operating condition and in at
least
the same condition as when delivered to Lessee hereunder, except for ordinary
wear and tear resulting despite Lessee's full compliance with the terms hereof;
(3) provide written notice to Lessor not less than thirty (30) days after
any
change of the location of any Equipment (or the location of the principal
garage
of any Equipment, to the extent that such Equipment is mobile equipment)
as
specified in the Equipment schedule; and (4) not attach or incorporate the
Equipment to or in any other property in such a
manner
that the Equipment may be deemed to have become an accession to or a part
of
such other property. (b) Within a reasonable time, Lessee will replace any
parts
of the Equipment which become worn out, lost, destroyed, or damaged beyond
repair or otherwise unfit for use, by new or reconditioned replacement parts
which are free and clear of all Liens and have a value, utility and remaining
useful life at least equal to the parts replaced (assuming that they were
in the
condition required by this Lease). Any modification or addition to the Equipment
that is required by this Lease shall
be
made by Lessee. Title to all such parts, modifications and additions to the
Equipment immediately shall vest in Lessor, without any further action by
Lessor
or any other person, and they shall be deemed incorporated in the Equipment
for
all purposes of the related Schedule. Unless replaced in accordance with
this
Section, Lessee shall not remove any parts originally or from time to time
attached to the Equipment, if such parts are
essential
to the operation of the Equipment, are required by any other provision of
this
Lease or cannot be detached from the Equipment without materially interfering
with the operation of the Equipment or adversely affecting the value, utility
and remaining useful life which the Equipment would have had without the
addition of such parts. Except as permitted in this Section, Lessee shall
not
make any material alterations to the Equipment. (c) Upon forty-eight (48)
hours'
notice, Lessee shall afford Lessor and/or its designated representatives
access
to the premises where the Equipment is located
for the purpose of inspecting such Equipment and all applicable maintenance
or
other records relating thereto at any reasonable time during normal business
hours; provided, however, if a Default or Event of Default shall have occurred
and then be continuing, no notice of any inspection by Lessor shall be required.
If any discrepancies are found as they pertain to the general condition of
the
Equipment, Lessor will communicate these discrepancies to Lessee in writing.
Lessee shall then have thirty (30) days to rectify these discrepancies at
its
sole expense. Lessee shall pay all expenses
of re-inspection by Lessor's appointed representative, if corrective measures
were required.
8.
DISCLAIMER; QUIET ENJOYMENT. (a) THE EQUIPMENT IS LEASED HEREUNDER "AS IS,
WHERE
IS". LESSOR SHALL NOT BE DEEMED TO HAVE MADE, AND HEREBY DISCLAIMS, ANY
REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE EQUIPMENT,
INCLUDING ANY PART, OR ANY MATTER WHATSOEVER, INCLUDING, AS TO EACH ITEM
OF
EQUIPMENT, ITS DESIGN, CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR
PURPOSE, TITLE, ABSENCE OF ANY PATENT, TRADEMARK OR COPYRIGHT
INFRINGEMENT OR LATENT DEFECT (WHETHER OR NOT DISCOVERABLE BY LESSEE),
COMPLIANCE OF SUCH ITEM WITH ANY APPLICABLE LAW, CONFORMITY OF SUCH ITEM
TO THE
PROVISIONS AND SPECIFICATIONS OF ANY PURCHASE DOCUMENT OR TO THE DESCRIPTION
SET
FORTH IN THE RELATED SCHEDULE OR ANY OF THE OTHER LEASE DOCUMENTS, OR ANY
INTERFERENCE OR INFRINGEMENT
(EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8(b)), OR ARISING FROM ANY COURSE
OF
DEALING OR USAGE OF TRADE, NOR SHALL LESSOR BE LIABLE, FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR STRICT OR ABSOLUTE LIABILITY
IN TORT; AND LESSEE HEREBY WAIVES ANY CLAIMS ARISING OUT OF ANY OF THE
FOREGOING. Without
limiting the foregoing, Lessor will not be responsible to Lessee or any other
person with respect to, and Lessee agrees to bear sole responsibility for,
any
risk oother matter that is the subject of Lessor's disclaimer; and Lessor's
agreement to enter into this Lease and any Schedule is in reliance upon the
freedom from and complete negation of liability or responsibility for the
matters so waived or disclaimed herein or covered by the indemnity in this
Lease. So long
as
no
Event of Default has occurred, Lessee may exercise Lessor's rights, if any,
under any warranty with respect to the Equipment. Lessee's exercise of such
rights shall be at its sole risk, shall not result in any prejudice to Lessor,
and may be exercised only during the term of the related Schedule. Lessee
shall
not attempt to enforce any such warranty by legal proceeding without Lessor's
prior written approval. (b) Lessor warrants that during the term of each
ScheduIe, so long as no Event of Default has occurred, Lessee's possession
and
use of the Equipment leased thereunder shall not be interfered
with by Lessor or anyone rightfully claiming an interest through Lessor.
The
preceding warranty is in lieu of all other warranties by Lessor, whether
written, oral or implied, with respect to this Lease or the Equipment. Any
actual or purported breach of this warranty shall not give rise to any
Abatement, but Lessee may bring a direct cause of action against Lessor for
any
actual damages directly resulting from any such breach.
9.
FEES AND TAXES. Lessee
agrees to: (a) (1) if permitted by law, file in Lessee's own name or on Lessor's
behalf, directly with all appropriate taxing authorities all declarations,
returns, inventories and other documentation with respect to any personal
property taxes (or any other taxes in the nature of or imposed in lieu of
property taxes) due or to become due with respect to the Equipment, and if
not
so permitted by law, to promptly notify Lessor and provide it with all
information required in order for Lessor to timely file all such declarations,
returns, inventories, or other documentation, and (2) pay on or before the
date
when due all such taxes assessed, billed or otherwise payable with respect
to
the Equipment directly to the appropriate taxing authorities; (b) (1) pay
when
due as requested by Lessor, and (2) defend and indemnify Lessor on a net
after-tax basis against liability for all license and/or registration fees,
assessments, and sales, use, property, excise, privilege, value added and
other
taxes or other charges or fees now or hereafter imposed by any governmental
body
or agency upon the Equipment or with respect to the manufacture, shipment,
purchase, ownership, delivery,
installation, leasing, operation, possession, use, return, or other disposition
thereof or the Rent hereunder (other than taxes on or measured solely by
the net
income of Lessor); and (c) indemnify Lessor against any penalties, charges,
interest or costs imposed with respect to any items referred to in clauses
(a)
and (b) above (the items referred to as clauses (a), (b), and (c) above being
referred to herein as "Impositions").
Any
Impositions which are not paid when due and which are paid by Lessor shall,
at
Lessor's option, become immediately due from Lessee to Lessor.
10.
TITLE; GRANTING CLAUSE. (a)
Lessee and Lessor intend that: (1) each Schedule, incorporating by reference
the
terms of this Lease, constitutes a true "lease" and a "finance lease" as
such
terms are defined in Article 2A and not a sale or retention of a security
interest; and (2) Lessor is and shall remain the owner of each item of Equipment
(unless sold by Lessor pursuant to any Lease Document), and Lessee shall
not
acquire any right, title or interest in or to such Equipment except the right
to
use it in accordance with the terms of the related Schedule. (b) In order
to
secure the prompt payment
of the Rent and all of the other amounts from time to time outstanding with
respect hereto and to each Schedule, and the performance and observance by
Lessee of all of the provisions hereof and thereof and of all of the other
Lease
Documents, Lessee hereby collaterally assigns, grants, and conveys to Lessor,
a
security interest in and lien on all of Lessee's right, title and interest
in
and to all of the following (whether now existing or hereafter created, and
including any other collateral described on any rider hereto; the "Collateral"):
(1)
(if contrary to the parties' intentions a court determines
that such Schedule is not a true "lease" under the UCC) the Equipment described
in such Schedule or otherwise covered thereby (including all inventory, fixtures
or other property comprising the Equipment), together with all related software
(embedded therein or otherwise) and general intangibles, all additions,
attachments, accessories and accessions thereto whether or not furnished
by the
Supplier; (2) all subleases, chattel paper, accounts, security deposits,
and
general intangibles relating thereto, and any and all substitutions,
replacements or exchanges for any such item of
Equipment
or other collateral, in each such case in which Lessee shall from time to
time
acquire an interest; and (3) any and all insurance and/or other
proceeds
of the property and other collateral in and against which a security interest
is
granted hereunder. The collateral assignment, security interest and lien
granted
herein shall survive the termination, cancellation or expiration of each
Schedule until such time as Lessee's obligations thereunder and under the
other
Lease Documents are fully and indefeasibly discharged. (c) If contrary to
the
parties' intentions a court determines that any Schedule is not
a
true "lease", the parties agree that in such event Lessee agrees that: (1)
with
respect to the Equipment, in addition to all of the other rights and remedies
available to Lessor hereunder upon the occurrence of a Default, Lessor shall
have all of the rights and remedies of a first priority secured party under
the
UCC; and (2) any obligation to pay Basic Rent or any Other Payment, to the
extent constituting the payment of interest, shall be at an interest rate
that
is equal to the lesser of the maximum lawful rate permitted by applicable
law or
the effective interest rate used by Lessor in calculating such amounts.
11.
INSURANCE. Upon
acceptance under a Schedule, until the Equipment is returned to Lessor in
accordance with this Lease, Lessee shall maintain all-risk insurance coverage
with respect to the Equipment insuring against, among other things: (a) any
casualty to the Equipment (or any portion thereof), including loss or damage
due
to fire and the risks normally included in extended coverage, malicious mischief
and vandalism, for not less than the full replacement value of the Equipment;
and (b) any commercial liability arising in connection with the Equipment,
including both bodily injury
and property damage with a combined single limit per occurrence of not less
than
the amount specified in the Schedule; having a deductible reasonably
satisfactory to Lessor. The required insurance policies (including endorsements)
shall, (i) be endorsed to name Lessor as an additional insured (but without
responsibility for premiums), (ii) provide that any amount payable under
the
required casualty coverage shall be paid directly to Lessor as sole loss
payee,
(iii) provide for thirty (30) days' written notice by such insurer of
cancellation, material change, or non-renewal.
12.
LOSS AND DAMAGE. (a)
At
all times until the Equipment is returned to Lessor in accordance with this
Lease, Lessee shall bear the risk of loss, theft, confiscation, taking,
unavailability, damage or partial destruction of the Equipment and shall
not be
released from its obligations under any Schedule or other Lease Document
in any
such event. (b) Lessee shall provide prompt written notice to Lessor of any
Total Loss or any material damage to the Equipment. Any such notice must
be
provided together with any damage reports provided to any governmental
authority, the Insurer or Supplier, and any documents pertaining to the repair
of such damage, including copies of work orders, and all invoices for related
charges. (c) Without limiting any other provision hereof, Lessee shall repair
all damage to any item of Equipment from any and all causes, other than a
Total
Loss, so as to cause it to be in the condition and repair required by this
Lease. (d) A "Total
Loss" shall
be
deemed to have occurred to an item of Equipment (the "Lost
Equipment"),
upon:
(1) the actual or constructive total loss of any item of the Equipment, (2)
the
loss, disappearance, theft or destruction of any item
of
the Equipment, or damage to any item of the Equipment that is uneconomical
to
repair or renders it unfit for normal use, or (3) the condemnation,
confiscation, requisition, seizure, forfeiture or other taking of title to
or
use of any item of the Equipment or the imposition of any Lien thereon by
any
governmental authority. (e) Lessor shall be under no duty to Lessee to pursue
any claim against any person in connection with a Total Loss or other loss
or
damage. (f) If Lessor receives a payment under an insurance policy required
under this Lease in connection with any Total Loss or other loss of or damage
to
an item of Equipment, and such payment is both unconditional and indefeasible,
then provided Lessee shall have complied with the applicable provisions of
this
Section, Lessor shall either (1) credit such proceeds against any amounts
owed
by Lessee pursuant to Section 12(d), or (2) if received with respect to repairs
to be made pursuant to Section 12(c), remit such proceeds to Lessee up to
an
amount equal to the amount of the costs of repair.
13.
REDELIVERY. (a)
Lessee shall provide written notice to Lessor not less than one hundred eighty
(180) days and not more than two hundred forty (240) days prior to the
expiration of the term of any Schedule (or of any renewal thereof, if
applicable) of Lessee's intent to return the Equipment to Lessor upon the
expiration of the term of such Schedule. If lessee fails to provide the
foregoing notice in a timely manner, the term of the applicable schedule
automatically shall be deemed to have been extended, which extension shall
continue until one hundred eighty (180) days after the date on which
lessee provides the required notice, during which extension period lessee
shall
continue to pay to lessor per diem rent at the last prevailing lease rate
under
the applicable schedule; provided, however that Lessor may elect to terminate
such extension at any time upon ten (10) days written notice to Lessee. During
such extension period, the terms and conditions of this Lease (including,
without limitation, the provisions of this Section 13) shall continue to
be
applicable. (b) Upon the expiration or earlier cancellation or termination
of
any Schedule, Lessee shall return the Equipment to Lessor free
and
clear of all Liens whatsoever, to such place(s) within the continental United
States as Lessor shall specify. Lessee
shall provide, at its expense, transit insurance for the redelivery period
in an
amount equal to the replacement value of the Equipment and Lessor shall be
named
as the loss payee on all such policies of insurance. Lessee shall cause:
(1) the
Supplier's representative or other qualified person acceptable to Lessor
(the
"Designated
Person")
to de-
install the Equipment in accordance with the Supplier's specifications (as
applicable) and pack the Equipment properly and in accordance with the
Supplier's recommendations (as applicable); and (2) the Equipment to be
transported in a manner
consistent with the Supplier's recommendations and practices (as applicable).
Upon return, the Equipment shall be: (i) in the same condition as when delivered
to Lessee under the related Schedule, ordinary wear and tear excepted; (ii)
mechanically and structurally sound, capable of performing the functions
for
which the Equipment was originally designed, in accordance with the Supplier's
published and recommended specifications (as
applicable);
(iii) redelivered with all component parts in good operating condition (and
all
components must meet or exceed the Supplier's minimum recommended
specifications, unless otherwise agreed by Lessor in writing); and (iv) cleaned
and cosmetically acceptable, with all Lessee-installed markings removed and
all
rust, corrosion or other contamination having been removed or properly treated,
and in such condition so that it may be immediately
installed and placed in service by a third party. Upon delivery, the Equipment
shall be in compliance with all applicable Federal, state and local laws,
and
health and safety guidelines. Lessee shall be responsible for the cost of
all
repairs, alterations, inspections, appraisals, storage charges, insurance
costs,
demonstration costs and other related costs necessary to cause the Equipment
to
be in full compliance with the terms of this Lease. (c) If requested by Lessor,
Lessee shall also deliver all related records and other data to Lessor,
including all records of maintenance, modifications, additions
and major repairs, computerized maintenance history, and any maintenance
and
repair manuals (collectively, the "Records").
All
manuals or
other
documents delivered to Lessor that are subject to periodic revision will
be
fully up-to-date and current to the latest revision standard of any particular
manual or document. In the event any such Records are missing or incomplete,
Lessor shall have the right to cause the same to be reconstructed at Lessee's
expense. (d) In addition to Lessor's other rights and remedies hereunder,
if the
Equipment and the related Records are not returned in a timely fashion, or
if
repairs are necessary to place any item of Equipment in the condition required
in this Section, Lessee shall (i) continue to
pay to
Lessor per diem rent at the last prevailing lease rate under the applicable
Schedule with respect to such item of Equipment, for the period of delay
in
redelivery, and/or for the period of time reasonably necessary to accomplish
such repairs, and (ii) pay to Lessor an amount equal to the aggregate cost
of
any such repairs. Lessor's acceptance of such rent on account of such delay
and/or repair does not constitute an extension or renewal of the term of
the
related Schedule or a waiver of Lessor's right to prompt return of the Equipment
in proper condition. Such amount shall be payable
upon the earlier of Lessor's demand or the return of the Equipment in accordance
with this Lease. (e) Without limiting any other terms or conditions of this
Lease, the provisions of this Section are of the essence of each Schedule,
and
upon application to any court of equity having jurisdiction, Lessor shall
be
entitled to a decree against Lessee requiring Lessee's specific performance
of
its agreements and continued in this Section.
this
Section.
14.
INDEMNITY. Lessee
shall indemnify, defend and keep harmless Lessor and any Assignee (as defined
in
Section 17), and their respective agents and employees (each, an "Indemnitee"),
from
and against any and all Claims (other than such as may directly and proximately
result from the actual, but not imputed, gross negligence or willful misconduct
of such Indemnitee), by paying, on a net after-tax basis, or otherwise
discharging same, when and
as
such Claims shall become due. Lessee agrees that the Indemnity provided for
in
this Section includes the agreement by Lessee to indemnify each Indemnitee
from
the consequences of its own simple negligence, whether that negligence is
the
sole or concurring cause of the Claims, and to further indemnify each such
Indemnitee with respect to Claims for which such Indemnitee is strictly liable.
Lessor shall give Lessee prompt notice of any Claim
hereby indemnified against and Lessee shall be entitled to control the defense
of and/or to settle any Claim, in each case, so long as (a) no Default or
Event
of Default has occurred and is then continuing, (b) Lessee confirms, in writing,
its unconditional and irrevocable commitment to indemnify each Indemnitee
with
respect to such Claim, (c) Lessee is financially capable of satisfying its
obligations under this Section, and (d) Lessor approves the defense counsel
selected by Lessee. The term "Claims"
shall
mean all claims, allegations, ▇▇▇▇▇, judgments, settlements, suits, actions,
debts,
obligations, damages (whether incidental, consequential or direct), demands
(for
compensation, indemnification, reimbursement or otherwise), losses, penalties,
fines, liabilities (including strict liability), charges that Lessor has
incurred or for which it is responsible, in the nature of interest, Liens,
and
costs (including attorneys' fees and disbursements and any other legal or
non-legal expenses of investigation or defense of any Claim, whether or not
such
Claim is ultimately defeated or enforcing the rights, remedies or indemnities
provided for hereunder, or otherwise available at law or equity to
Lessor),
of whatever kind or nature, contingent or otherwise, matured or unmatured,
foreseeable or unforeseeable, by or against any person, arising on account
of
(1) any Lease Document, including the performance, breach (including any
Default
or Event of Default) or enforcement of any of the terms thereof, or (2) the
Equipment, or any part or other contents thereof, any substance at any time
contained therein or emitted therefrom, including any hazardous substances,
or
the premises at which the Equipment may be located from time to time, or
(3) the
ordering, acquisition, delivery, installation or rejection
of the Equipment, the possession of any property to which it may be attached
from time to time, maintenance, use, condition, ownership or operation of
any
item of Equipment, and by whomsoever owned, used, possessed or operated,
during
the term of any Schedule with respect to that item of Equipment, the existence
of latent and other defects (whether or not discoverable by Lessor or Lessee)
any claim in tort for negligence or strict liability, and any claim for patent,
trademark or copyright infringement, or the loss, damage, destruction, theft,
removal, return, surrender, sale or other disposition of the Equipment, or
any
item thereof, including, Claims involving or alleging environmental damage,
or
any criminal or terrorist act, or for whatever other reason whatsoever. If
any
Claim Is made against Lessee or an Indemnitee, the party receiving notice
of
such Claim shall promptly notify the other, but the failure of the party
receiving notice to so notify the other shall not relieve Lessee of any
obligation hereunder.
15.
DEFAULT. A
default
shall be deemed to have occurred hereunder and under a Schedule upon the
occurrence of any of the following (each, an
"Event
of Default"):
(a)
non-payment of Basic Rent on the applicable rent payment date; (b) non-payment
of any Other Payment within five (5) days after it is due; (c) failure to
maintain, use or operate the Equipment in compliance with applicable law;
(d)
failure to obtain, maintain and comply with all of the insurance coverages
required under this Lease; (e) any transfer or encumbrance, or the existence
of
any Lien, that is prohibited by this Lease; (f) a payment or other default
by
Lessee under any loan, lease, guaranty or other financial obligation to Lessor
or its affiliates which default entitled the other party to such obligation
to
exercise remedies; (g) a payment or other default by Lessee under any material
loan, lease, guaranty or other material financial obligation to any third
party
which default has been declared; (h) an inaccuracy in any representation
or
breach of warranty by Lessee (including any false or misleading representation
or warranty) in any financial statement or Lease Document, including any
omission of any substantial contingent or unliquidated liability or Claim
against Lessee; (i) the commencement of any bankruptcy, insolvency, receivership
or similar proceeding by or
against Lessee or any of its properties or business (unless, if involuntary,
the
proceeding is dismissed within sixty (60) days of the filing thereof) or
the
rejection of this Lease or any other Lease Document in any such proceeding;
(j)
the failure by Lessee generally to pay its debts as they become due or its
admission in writing of its inability to pay the same; (k) Lessee shall (1)
enter into any transaction of merger or consolidation, unless Lessee shall
be
the surviving entity (such actions being referred to as an "Event"),
unless
the surviving entity is organized and existing under the laws of the
United
States
or
any state, and prior to such Event: (A) such entity executes and delivers
to
Lessor (x) an agreement satisfactory to Lessor, in its sole discretion,
containing such entity’s effective assumption, and its agreement to pay,
perform, comply with and otherwise be liable for, in a due and punctual manner,
all of Lessee's obligations having previously arisen, or then or thereafter
arising, under any and all of the Lease Documents, and (y) any and all other
documents, agreements, instruments, certificates, opinions and filings requested
by Lessor; and (B) Lessor is satisfied as to the
creditworthiness
of such person, and as to such person's conformance to the other standard
criteria then used by Lessor when approving transactions similar to the
transactions contemplated in this Lease; (2) cease to do business as a going
concern, liquidate, or dissolve; or (3) sell, transfer, or otherwise dispose
of
all or substantially all of its assets or property; (l) if Lessee is privately
held and effective control of Lessee's voting capital stock/membership
interests/partnership interests, issued and outstanding from time to time,
is
not retained by the present holders (unless Lessee shall have
provided thirty (30) days' prior written notice to Lessor of the proposed
disposition and Lessor shall have consented thereto in writing); (m) if Lessee
is a publicly held corporation and there is a material change in the ownership
of Lessee's capital stock, unless Lessor is satisfied as to the creditworthiness
of Lessee and as to Lessee's conformance to the other standard criteria then
used by Lessor for such purpose immediately thereafter; (n) there occurs
a
default or anticipatory repudiation under any guaranty executed in connection
with this Lease; (o) failure to satisfy the requirements of
any
financial covenants set forth herein, or in any rider to this Lease or any
Schedule; or (p) breach by Lessee of any other covenant, condition or agreement
(other than those in items (a)-(o)) under this Lease or any of the other
Lease
Documents that continues for thirty (30) days after Lessor's written notice
to
Lessee (but such notice and cure period will not be applicable unless such
breach is curable by practical means within such notice period).
16.
REMEDIES.
(a) if
an Event of Default occurs with respect to any Schedule, the Lessor thereunder
may (in its sole discretion) exercise any one or more of the following remedies
with respect to such Schedule and any or all other Schedules to which such
Lessor is then a party: (1) proceed at law or in equity, to enforce specifically
Lessee's performance or to recover damages; (2) declare each such Schedule
in
default, and cancel each such Schedule
or otherwise terminate Lessee's right to use the Equipment and Lessee's other
rights, but not its obligations, thereunder and Lessee shall immediately
assemble, make available and, if Lessor requests, return the Equipment to
Lessor
in accordance with the terms of this Lease; (3) enter any premises where
any
item of Equipment is located and take immediate possession of and remove
(or
disable in place) such item (and/or any unattached parts)
by
self-help, summary proceedings or otherwise without liability; (4) use Lessee's
premises for storage without liability; (5) sell, re-lease or otherwise dispose
of any or all of the Equipment, whether or not in Lessor's possession, at
public
or private sale, with or without notice to Lessee, and apply or retain the
net
proceeds of such disposition, with Lessee remaining liable for any deficiency
and with any excess being retained by Lessor; (6) enforce any or all of the
preceding remedies with respect to any related Collateral, and apply any
deposit
or other cash collateral, or any proceeds of any such Collateral, at any
time to
reduce any amounts due to Lessor; (7) demand and recover from Lessee all
Liquidated Damages and all Other Payments whenever the same shall be due;
and
(8) exercise any and all other remedies allowed by applicable law, including
the
UCC. As used herein, "Liquidated
Damages" shall
mean the liquidated damages (all of which, Lessee hereby acknowledges, are
damages to be paid in lieu of future Basic Rent
and
are reasonable in light of the anticipated harm arising by reason of an Event
of
Default, and are not a penalty) described in the first sentence of parts
(1) or
(2) of Section 16(b), depending upon the recovery and disposition of the
Equipment leased under the applicable Schedule. (b) If an Event of Default
occurs with respect to any Schedule, (1) if Lessor recovers the Equipment
and
disposes of it by a lease or elects not to dispose of the Equipment after
recovery, upon demand, Lessee shall pay to Lessor an amount equal to the
sum of
(A) any accrued and unpaid Rent as
of
the
date Lessor recovers possession of the Equipment, plus (B) the present value
as
of such date of the total Basic Rent for the then remaining term of such
Schedule, minus (C) either, as applicable, (i) the present value, as of the
commencement date of any substantially similar re-lease of the Equipment,
of the
re-lease rent payable for that period, commencing on such date, which is
comparable to the then remaining term of such Schedule or (ii)
the
present value, as of that certain date which may be determined by taking
into
account Lessor's having a reasonable opportunity to remarket the Equipment,
of
the "market rent" for such Equipment (as computed pursuant to Article 2A)
in the
continental United States on that date, computed for that period, commencing
on
such date, which is comparable to the then remaining term of such Schedule;
provided, however, Lessee acknowledges that if Lessor
is
unable after reasonable effort to dispose of the Equipment at a reasonable
price
and pursuant to other reasonable terms, or the circumstances reasonably indicate
that such an effort will be unavailing, the "market rent" in such event will
be
deemed to be $0.00, but in the event that Lessor does eventually re-lease
or
otherwise dispose of the Equipment, it will apply the net proceeds of such
disposition, to the extent received in good and indefeasible
funds, as a credit or reimbursement, as applicable, in a manner consistent
with
the applicable provisions of Article 2A. Any amounts discounted to present
value, shall be discounted at the rate of three percent (3%) per annum,
compounded annually.
(2)
If
Lessee fails to return the Equipment in the manner and condition required
by
this Lease, or Lessor recovers and sells the Equipment, upon demand, Lessee
shall pay to Lessor all other Rent due with respect to the related Schedule
as
of such determination date, and all Enforcement Costs (defined in Section
16(c)), less a credit for any disposition proceeds, if applicable pursuant
to
the application provisions in the next sentence. If Lessor
demands the Liquidated Damages under this part (2), and recovers and sells
the
Equipment, any proceeds received in good and indefeasible funds shall be
applied
by Lessor, with respect to the related Schedule: first, to pay all Enforcement
Costs, to the extent not previously paid; second, to pay to Lessor an amount
equal to any unpaid Rent due and payable, together with the liquidated
damage
amounts specified in this part (2), to the extent not previously paid;
third, to
pay to Lessor any interest accruing on the amounts covered by the preceding
clauses, at the Late Charge Rate, from and after the date the same becomes
due,
through the date of payment; and fourth, (A) if the Lessor under such Schedule
is also the Lessor under any other Schedules (whether by retaining the
same, or
as Assignee), to satisfy any remaining obligations under any or all such
other
Schedules, or (B) if such Lessor is not the Lessor under any other Schedule,
or
if Lessee's obligations to such Lessor under such other Schedules have
been
fully and
indefeasibly
satisfied, to reimburse Lessee for such amounts to the extent paid by Lessee
as
liquidated damages pursuant to this part (2). (c) A cancellation of any Schedule
shall occur only upon written notice by Lessor to Lessee. Unless already
specifically provided for in Section 16(b), if an Event of Default occurs
with
respect to any Schedule, Lessee shall also be liable for all of the following
("Enforcement Costs"): (1) all unpaid Rent due before, during or after exercise
of any of the foregoing remedies, and (2) all reasonable legal fees (including
consultation, drafting notices or
other
documents, expert witness fees, sending notices or instituting, prosecuting
or
defending litigation or arbitration) and other enforcement costs and expenses
incurred by reason of any Default or Event of Default or the exercise of
Lessor's rights or remedies, including all expenses incurred in connection
with
the return or other recovery of any Equipment in accordance with the terms
of
this Lease or in placing such Equipment in the condition required hereby,
or the
sale, re-lease or other disposition (including but not limited to costs of
transportation, possession, storage, insurance, taxes, lien removal,
repair, refurbishing, advertising and brokers' fees), and all other pre-judgment
and post-judgment enforcement related actions taken by Lessor or any actions
taken by Lessor in any bankruptcy case involving Lessee, the Equipment, or
any
other person. Late Charges shall accrue with respect to any amounts payable
under this Section for as long as such amounts remain outstanding, and shall
be
paid by Lessee upon demand. No right or remedy is exclusive and each may
be used
successively and cumulatively. Any failure to exercise the rights granted
hereunder upon any Default or Event
of
Default shall not constitute a waiver of any such right. The execution of
a
Schedule shall not constitute a waiver by Lessor of any pre-existing Default
or
Event of Default. With respect to any disposition of any Equipment or Collateral
pursuant to this Section, (i) Lessor shall have no obligation, subject to
the
requirements of commercial reasonableness, to clean-up or otherwise prepare
the
same for disposition, (ii) Lessor may comply with any applicable law in
connection with any such disposition, and any actions taken in connection
therewith shall not be deemed to have adversely affected the commercial
reasonableness of any disposition thereof, (iii) Lessor may disclaim any
title
or other warranties in connection with any such disposition, and (iv) Lessee
shall remain responsible for any deficiency remaining after Lessor's exercise
of
its remedies and application of any funds or credits against Lessee's
obligations under any Schedule, and Lessor shall retain any excess after
such
application.
17.
ASSIGNMENT. (a)
LESSEE SHALL NOT ASSIGN, DELEGATE, TRANSFER OR ENCUMBER ANY OF ITS RIGHTS
OR
OBLIGATIONS HEREUNDER OR UNDER ANY SCHEDULE, OR ITS LEASEHOLD INTEREST OR
ANY
COLLATERAL, SUBLET THE EQUIPMENT OR OTHERWISE PERMIT THE EQUIPMENT TO BE
OPERATED OR USED BY, OR TO COME INTO OR REMAIN IN THE POSSESSION OF, ANYONE
BUT
LESSEE.
Without
limiting the foregoing, (1) Lessee may not attempt to dispose of any of the
Equipment, and (2) Lessee shall (A) maintain the Equipment free from all
Liens,
other than Permitted Liens, (B) notify Lessor immediately upon receipt of
notice
of any Lien affecting the Equipment, and (C) defend Lessor's title to the
Equipment. A "Permitted Lien" shall mean any Lien for Impositions, Liens
of
mechanics, materialmen, or suppliers and similar Liens arising by operation
of
law, provided that any such Lien is incurred by Lessee in the ordinary course
of
business, for sums that are not yet delinquent or are being contested in
good
faith and with due diligence, by negotiations or by appropriate proceedings
which suspend the collection thereof and, in Lessor's sole discretion, (i)
do
not involve any substantial danger of the sale, forfeiture or loss of the
Equipment or any interest therein, and (ii) for the payment of which adequate
assurances or security have been provided to Lessor. No disposition referred
to
in this Section shall relieve Lessee of its obligations, and Lessee shall
remain
primarily liable under each Schedule and all of the other Lease Documents.
(b)
Lessor may at any time with or without
notice to Lessee grant a security interest in, sell, assign, delegate or
otherwise transfer (an "Assignment") all or any part of its interest in the
Equipment, this Lease or any Schedule and any related Lease Documents or
any
Rent thereunder" or the right to enter into any Schedule, and Lessee shall
perform all of its obligations thereunder, to the extent so transferred,
for the
benefit of the beneficiary of such Assignment (such beneficiary, including
any
successors and assigns, an "Assignee").
Lessee
agrees not to assert against any Assignee any Abatement (without limiting
the
provisions
of Section 2) or Claim that Lessee may have against Lessor, and Assignee
shall
not be bound by, or otherwise required to perform any of Lessor's obligations,
unless expressly assumed by such Assignee. Lessor shall be relieved of any
such
assumed obligations. If so directed in writing, Lessee shall pay all Rent
and
all other sums that become due under the assigned Schedule and other Lease
Documents directly to the Assignee or any other party designated in writing
by
Lessor or such Assignee. Lessee acknowledges that Lessor's right to enter
into
an Assignment is essential to Lessor
and, accordingly, waives any restrictions under applicable law with respect
to
an Assignment and any related remedies. Upon the request of Lessor or any
Assignee, Lessee also agrees (i) to promptly execute and deliver to Lessor
or to
such Assignee an acknowledgment of the Assignment in form and substance
satisfactory to the requesting party, an insurance certificate and such other
documents and assurances reasonably requested by Lessor or Assignee, and
(ii) to
comply with all other reasonable requirements of any such Assignee in connection
with any such Assignment. Upon such Assignment
and except as may otherwise be provided herein, all references in this Lease
to
"Lessor" shall include such Assignee. (c) Subject always to the foregoing,
this
Lease and each Schedule shall inure to the benefit of, and are binding upon,
Lessee's and Lessor's respective successors and assigns.
18.
MISCELLANEOUS. (a)
This
Lease, each Schedule, any Riders hereto or thereto and any commitment letter
between the parties, constitute the entire agreement between the parties
with
respect to the subject matter hereof and thereof and shall not be amended
or
modified in any manner except by a document in writing executed by both parties.
(b) Any provision of this Lease that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. (c) The representations,
warranties and agreements of Lessee herein shall be deemed to be continuing
and
to survive the execution and delivery of this Lease, each Schedule and any
other
Lease Documents. With respect to each Schedule, the obligations of Lessee
under
Sections 8, 9, 10, 12, 13 and 14 hereof, together with any of Lessee's
obligations under the other provisions of this Lease (as incorporated therein)
which have accrued but not been fully satisfied,
performed or complied with prior to the expiration or earlier cancellation
or
termination of such Schedule, shall survive the expiration or earlier
cancellation or termination thereof. (d) All of Lessee's obligations hereunder
and under any Schedule shall be performed at Lessee's sole expense.
Lessee
shall reimburse Lessor promptly upon demand for all expenses incurred by
Lessor
in connection with (1) any action taken by Lessor at Lessee's request, or
in
connection with any option, (2) the filing or recording of real property
waivers
and UCCs, (3) any Enforcement Costs not recovered pursuant to Section 16,
(4)
all inspections, and (5) all lien search reports (and copies of filings)
requested by Lessor. If Lessee fails to perform any of its obligations with
respect to a Schedule, Lessor shall have the right, but shall not be obligated,
to effect such performance, and Lessee shall reimburse
Lessor,
upon demand, for all expenses incurred by Lessor in connection with such
performance. Lessor's effecting such compliance shall not be a waiver of
Lessee's default. All amounts payable under this Section, if not paid when
due,
shall be paid to Lessor together with interest thereon at the Late Charge
Rate.
(e) Lessee irrevocably appoints Lessor as Lessee's attorney-in-fact (which
power
shall be deemed coupled with an interest) to execute, endorse and deliver
any
documents and checks or drafts relating to or received in payment for any
loss
or damage under the policies of insurance
required by this Lease, but only to the extent that the same relates to the
Equipment. (f) LESSOR AND LESSEE HEREBY WAIVE TRIAL BY JURY IN ANY ACTION
OR
PROCEEDING TO WHICH LESSEE AND/OR LESSOR MAY BE PARTIES ARISING OUT OF OR
IN ANY
WAY PERTAINING TO THIS LEASE. (g) All notices (excluding ▇▇▇▇▇▇▇▇ and
communications in the ordinary course of business) hereunder shall be in
writing, personally delivered, delivered by overnight courier service, sent
by
facsimile transmission (with confirmation of receipt), or sent by certified
mail, return receipt
requested, addressed to the other party at Its respective address stated
below
the signature of such party or at such other address as such party shall
from
time to time designate in writing to the other party; and shall be effective
from the date of receipt. (h) This Lease shall not be effective unless and
until
accepted by execution by an officer of Lessor at the address, in the State
of
Arizona (the "State"),
as set
forth below the signature of Lessor.
THIS
LEASE AND ALL OF THE OTHER LEASE DOCUMENTS, AND THE RIGHTS AND OBLIGATIONS
OF
THE PARTIES HEREUNDER AND THEREUNDER, SHALL IN ALL RESPECTS BE GOVERNED BY,
AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE (WITHOUT REGARD
TO
THE CONFLICT OF LAWS PRINCIPLES OF THE STATE), INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE
EQUIPMENT. The parties agree that any action or proceeding arising out
of or
relating to this Lease may be commenced in any state or Federal court in
the
State, and agree that a summons and complaint commencing an action or proceeding
in any such court shall be properly served and shall confer personal
jurisdiction if served personally or by certified mail to it at the mailing
address below Lessee's signature, or as it may provide in writing from time
to
time, or as otherwise provided under the laws of the State. (i) This Lease
and
all of the other Lease Documents may be executed In counterparts. The transfer
or possession of the "Original" of this Lease shall be irrelevant to the
full or
collateral assignment of, or grant of security interest in, any Schedule;
provided, however, no security interest in any Schedule may be created through
the transfer, possession or control, as applicable, of any counterpart of
such
Schedule other than the original thereof, which shall be identified as the
document or record (as applicable) marked "Original" and all other counterparts
shall be marked "Duplicate". (j) If Lessor is required by the terms hereof
to
pay to or for the benefit of Lessee any amount received as a refund of an
Imposition or as insurance proceeds, Lessor shall not be required to pay
such
amount, if any Default has occurred and not been cured or any Event of Default
shall have occurred and not been waived by Lessor. In addition, if Lessor
is
required by the terms hereof to cooperate with Lessee in connection with
certain
matters, such cooperation shall not be required if a Default or Event of
Default
has then occurred and is continuing. (k) To the extent Lessor is required
to
give its consent or approval with respect to any matter, the reasonableness
of
Lessor's withholding of such consent shall be determined based on the then
existing circumstances;
provided, that Lessor's withholding of its consent shall be deemed reasonable
for all purposes if (i) the taking of the action that is the subject of such
request, might result (in Lessor's discretion), in (A) an impairment of Lessor's
rights, title or interests hereunder or under any Schedule or other Lease
Document, or to the Equipment, or (B) expose Lessor to any Claims or
Impositions, or (ii) Lessee fails to provide promptly to Lessor any filings,
certificates, opinions or indemnities required by Lessor as a condition to
such
consent.
19.
DEFINITIONS AND RULES OF CONSTRUCTION. (a)
The
following terms when used in this Lease or in any of the Schedules have the
following meanings: (1) "affiliate": with respect to any given person, shall
mean (i) each person that directly or indirectly owns or controls, whether
beneficially or as a trustee, guardian or other fiduciary, five (5) percent
or
more of the voting stock, membership interest or similar equity interest
having
ordinary voting power in the election of directors or managers of such person,
(ii) each person that controls, is controlled by, or is under common control
with, such person, or (iii) each of such person's officers, directors, members,
joint venturers and partners. For the purposes of this definition, "control"
of
a person means the possession, directly or indirectly, of the power to direct
or
cause the direction of its management or policies, whether through the ownership
of voting securities, by contract or otherwise; (2) "applicable law" or "law":
any law, rule, regulation, ordinance, order, code, common law, interpretation,
judgment,
directive, decree, treaty, injunction, writ, determination, award, permit
or
similar norm or decision of any governmental authority; (3) "AS IS, WHERE
IS":
AS IS, WHERE IS, without warranty, express or implied, with respect to any
matter whatsoever; (4) "business day": any day, other than a Saturday, Sunday,
or legal holiday for commercial banks under the laws of the state of the
Lessor's notice address; (5) "governmental authority": any federal, state,
county, municipal, regional or other governmental authority, agency, board,
body, instrumentality or court, in each case, whether domestic or foreign;
(6)
"person": any individual, corporation, limited liability entity, partnership,
joint venture, or other legal entity or a governmental authority, whether
employed, hired, affiliated, owned, contracted with, or otherwise related
or
unrelated to Lessee or Lessor; and (7) "UCC" or "Uniform Commercial Code":
the
Uniform Commercial Code as in effect in the State or in any other applicable
jurisdiction; and any reference to an article (including Article 2A) or section
thereof shall mean the corresponding article or section (however termed)
of any
such applicable version of the Uniform Commercial
Code. (b) The following terms when used herein or in any of the Schedules
shall
be construed as follows: (1) "herein," "hereof," "hereunder," etc.: in, of,
under, etc. this Lease or such other Lease Document in which such term appears
(and not merely in, of, under, etc. the section
or
provision where the reference occurs); (2) "including": means including without
limitation unless such term is followed by the words "and limited to", or
similar words; and (3) "or": at least one, but not necessarily only one,
of the
alternatives enumerated. Any defined term used in the singular preceded by
"any"
indicates any number of the members of the relevant class. Any Lease Document
or
other agreement or instrument referred to herein means such agreement or
instrument as supplemented and amended from time to time. Any reference to
Lessor or Lessee shall include their permitted successors and assigns. Any
reference to an applicable law shall also mean such law as amended, superseded
or replaced from time to time.
IN
WITNESS WHEREOF, the parties hereto have caused this Master Lease Agreement
to
be duly executed, under seal, as of the day and year first above set
forth.
AGILITY
LEASE FUND I, LLC
Lessor
By:
________________________________________
Name:
▇▇▇
▇▇▇▇▇▇
Title:
Vice President
▇▇▇
▇.
▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
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Phone
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Lessee
By:
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Name:
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Title:
CEO
Address:
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Phone:
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