EXHIBIT 10.33
LASALLE NATIONAL LEASING CORPORATION
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MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT (this "LEASE") is made as of December 30, 2004,
between LASALLE NATIONAL LEASING CORPORATION ("LESSOR") and MEADOWBROOK
INSURANCE GROUP, 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). In the event of any conflict
between the terms and conditions of this Lease and any terms of a Rider or
Schedule executed in connection herewith, the terms of such Rider or Schedule
shall control. 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 any
Rent is not paid within five (5) business days of the due date, Lessor may
collect, and Lessee agrees to pay, interest (accruing at the "LATE CHARGE RATE"
specified in the related Schedule) with respect to the amount in arrears for the
period such amount remains unpaid (the "LATE CHARGE").
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
forty-five (45) 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) the only manually
executed original of the Schedule, and counterpart originals of all other Lease
Documents; (6) all purchase documents pertaining to the Equipment (collectively,
the "SUPPLY CONTRACT"); (7) 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 (8) 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 its 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 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, 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 a 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 or other 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 Schedule, 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 in 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.
(d) In order to better secure the prompt payment and performance as and when due
of all of Lessee's obligations (both now existing and hereafter arising) under
each Schedule, Lessee hereby grants to Lessor a second priority security
interest in all of Lessee's now owned or hereafter acquired or arising property,
including, without limitation, all: Accounts; Goods (other than inventory),
including embedded software, Equipment and Fixtures; Inventory, including work
in process and finished goods; Software and computer programs; Securities,
Investment Property, Financial Assets and Deposit Accounts; Chattel Paper,
Electronic Chattel Paper, Instruments, Documents, Letter of Credit Rights, all
proceeds of letters of credit, Health Care Insurance Receivables, Supporting
Obligations, notes secured by real estate, Commercial Tort Claims and General
Intangibles, including Payment Intangibles; and all Proceeds (whether Cash
Proceeds or Noncash Proceeds) of the forgoing property, including all insurance
policies and proceeds of insurance (collectively, the "ADDITIONAL COLLATERAL").
Additional Collateral expressly excludes, (w) that certain parcel of real estate
commonly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (x) any
property held by Meadowbrook, Inc., Crest Financial Corporation or any of their
respective subsidiaries on behalf of or for the benefit of third parties,
including, without
limitation, insurance premiums, claims payments, cash, letters of credit and/or
securities; (y) the stock of Liberty Premium Finance, held and owned by Crest
Financial Corporation; and (z) the stock owned by Meadowbrook, Inc. in any
insurance companies. Capitalized terms used in this Section 10(d) shall have the
meaning given such terms in that certain Security Agreement dated as of November
12, 2004 (the "SECURITY AGREEMENT"), by Lessee in favor of Standard Federal Bank
National Association. In furtherance of the forgoing, Lessee shall execute and
deliver to Lessor, to be recorded at Lessee's expense, such UCC financing
statements and other documents and instruments as reasonably may be required by
Lessor; and Lessee further agrees that the provisions of Sections 1, 2.1 and 5
of the Security Agreement shall be deemed incorporated herein as fully as if set
forth herein, applicable to Lessor (provided, however, that Section 5 thereof
shall not be effective unless and until the Security Agreement is terminated in
accordance with its terms).
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 in form and amount
reasonably satisfactory to Lessor, and written by insurers of recognized
reputation and responsibility satisfactory to Lessor (but such insurer shall
carry a current rating by A.M. Best Company of at least "A" for a general
policyholder and a financial rating of at least "VIII"), (ii) be endorsed to
name Lessor as an additional insured (but without responsibility for premiums),
(iii) provide that any amount payable under the required casualty coverage shall
be paid directly to Lessor as sole loss payee, (iv) provide for thirty (30)
days' written notice by such insurer of cancellation, material change, or
non-renewal; and (v) provide that in respect of the interests of Lessor in such
policies, the insurance shall not be invalidated by any action or inaction of
Lessee or any other person operating or in possession of the Equipment
regardless of any breach or violation of any warranties, declarations or
conditions contained in such policies by or binding upon Lessee or any other
person operating or in possession of the Equipment. Lessee agrees that it shall
obtain and maintain such other coverages (including pollution coverage), or
cause adjustments to be made to the scope, amount or other aspects of the
existing coverages, promptly upon Lessor's request, as and when Lessor deems
such additional coverages or modifications to be appropriate in light of any
changes in applicable law, prudent industry practices, Lessee's anticipated use
of the Equipment or other pertinent circumstances.
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 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. On the next rent payment date following a Total Loss (a "LOSS PAYMENT
DATE"), Lessee shall pay to Lessor the Basic Rent due on that date plus the
Stipulated Loss Value of the item or items of the Equipment with respect to
which the Total Loss has occurred (the "LOST Equipment"), together with any
Other Payments due hereunder with respect to the Lost Equipment. Upon making
such payment, (i) Lessee's obligation to pay future Basic Rent shall terminate
solely with respect to the items of Lost Equipment so paid for, but Lessee shall
remain liable for, and pay as and when due, all Other Payments, and (ii) Lessor
shall convey to Lessee all of Lessor's right, title and interest in the Lost
Equipment, "AS IS WHERE IS", but subject to the requirements of any third party
insurance carrier in order to settle an insurance claim. As used in this Lease,
"STIPULATED LOSS VALUE" shall mean the product of the Total Invoice Cost of the
Lost Equipment, times the percentage factor applicable to the Loss Payment Date,
as set forth in the Schedule of Stipulated Loss Values incorporated in such
Schedule. After the final rent payment date of the original term or any renewal
term of a Schedule, the Stipulated Loss Value shall be determined as of the last
rent payment date during the applicable term of such Schedule, and the
applicable percentage factor shall be the last percentage factor set forth in
the Schedule of Stipulated Loss Values incorporated in such Schedule. (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)
if received pursuant to a Total Loss, remit such proceeds to
Lessee up to an amount equal to the amount paid by Lessee to Lessor as the
Stipulated Loss Value, or credit such proceeds against any amounts owed by
Lessee pursuant to Section 12(d), or (2) if received with respect to repairs
made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount
equal to the amount of the costs of repair actually incurred by Lessee, as
established to Lessor's satisfaction.
13. REDELIVERY. (a) Lessee shall provide written notice to Lessor not less
than one hundred eighty (180) 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 described on such Schedule 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. Solely for purposes of the definition of
Stipulated Loss Value in Section 12(d) hereof, any such extension shall be
deemed a renewal of the term of such Schedule. (b) Upon the expiration or
earlier cancellation or termination of any Schedule, Lessee shall return the
Equipment described on such Schedule 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 such 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 such Equipment in
accordance with the Supplier's specifications (as applicable) and pack such
Equipment properly and in accordance with the Supplier's recommendations (as
applicable); and (2) such Equipment to be transported in a manner consistent
with the Supplier's recommendations and practices (as applicable). Upon return,
such 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 (reasonable wear and tear excepted), capable of
performing the functions for which such 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 (reasonable wear and tear excepted so long as all components must meet
or exceed the Supplier's minimum recommended specifications, unless otherwise
agreed by Lessor in writing); (iv) redelivered with all software and
documentation necessary for the operation of such Equipment for the performance
of the functions for which such Equipment was originally designed (whether or
not such software is embedded in or otherwise is a part of such Equipment); and
(v) cleaned and cosmetically acceptable (reasonable wear and tear excepted),
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, such 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 such 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 such 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 such
Equipment in proper condition. Such amount shall be payable upon the earlier of
Lessor's demand or the return of such 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 in 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 (such
approval not to be unreasonably withheld or delayed). 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 reasonable 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 or 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 within five (5) days of 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 entitles the
other party to such obligation to exercise remedies; (g) a payment default by
Lessee under any material (that is, an obligation with an original principal
indebtedness of $2,000,000 or more) 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 person executes and delivers to Lessor
(x) an agreement satisfactory to Lessor, in its sole discretion, containing such
person'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 reasonably 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. Lessor agrees
to use commercially reasonably efforts (based on the then existing
circumstances) to mitigate its damages; provided that the failure of Lessor to
mitigate such damages shall not release Lessee from its obligations hereunder.
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 an amount calculated as the Stipulated
Loss Value of the Equipment (determined as of the next rent payment date after
the date of the occurrence of the subject Event of Default), together with 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) EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, 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) 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. (f) 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. (g) This Lease shall not be effective unless and until accepted
by execution by an officer of Lessor at the address, in the State of Michigan
(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. (h) This Lease and all of the other Lease
Documents may be executed in counterparts. Photocopies or facsimile
transmissions of signatures shall be deemed original signatures and shall be
fully binding on the parties to the same extent as original signatures. 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". (i) 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. (j) 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. (k) There is no restriction (either express or
implied) on any disclosure or dissemination of the tax treatment or tax
structure of the transactions contemplated by this Lease or any documents
executed in connection herewith. Further, each party hereto acknowledges that it
has no
proprietary rights to any tax matter or tax idea or to any element of the
transaction structure contemplated by this Lease; and each party hereto (and any
employee, representative or agent of any party hereto) may disclose to any and
all persons (without limitation of any kind), the Federal tax treatment and
Federal tax structure of the transaction contemplated by this Lease. This
Section 18(k) is intended to cause the transaction contemplated by this Lease to
be treated as not having been offered under conditions of confidentiality for
purposes of Section 1.6011-4(b)(3) (or any successor provision) of the Treasury
Regulations promulgated under Section 6011 of the Code and Section 6111 of the
Code and the Treasury Regulations promulgated thereunder; and shall be construed
in a manner consistent with such purpose.
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.
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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.
LASALLE NATIONAL LEASING CORPORATION MEADOWBROOK INSURANCE GROUP, INC.
Lessor Lessee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ [SEAL] By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ [SEAL]
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------------- -------------------------------------------------------
Title: Vice President Title: CFO
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ----------------------------------------------------
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile:
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Form of Organization: Corporation
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Jurisdiction of Organization: Michigan
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Organizational No. 349-599
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Federal Employer Identification No. ▇▇-▇▇▇▇▇▇▇
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