Exhibit 10.8
MASTER LEASE AGREEMENT
Dated as of March 15, 2004
BETWEEN
LESSEE : LESSOR :
NOXSO CORPORATION, XXXXXX LEASING GROUP, the Leasing
For Itself And As Agent For It Division of XXXXXX VENTURES CORPORATION
Subsidiaries and Participants For Itself And As Agent For Certain
Participants
Street Address: Address :
0000 Xxxxx 000 Xxxx 000 Xxxx 000 Xxxxx Xxxxx 000
Xxxxxxxxx, Xxxx 00000 Xxxxxxxx Xxxx, XX 00000
Lease Number : 2004-01
1. AGREEMENT.
Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor the
equipment (Equipment) described in any schedule (Schedule) that incorporates
this Master Equipment Lease Agreement (Agreement) by reference. A Schedule shall
incorporate this Agreement by reference by listing the above-referenced Lease
Number thereon. Such lease shall be governed by the terms and conditions of this
Agreement, as well as by the terms and conditions set forth in the applicable
Schedule. Each Schedule shall constitute an agreement separate and distinct from
this Agreement and any other Schedule. In the event of a conflict between the
provisions of this Agreement and a Schedule, the provisions of the Schedule
shall govern.
2. ASSIGNMENT OF PURCHASE DOCUMENTS.
Lessee shall execute and deliver to Lessor a writing acceptable to Lessor
whereby Lessor is assigned all of Lessee's rights and interest in and to: (a)
the Equipment described in the applicable Schedule and (b) any purchase order,
contract or other documents (collectively, Purchase Documents) relating thereto
that Lessee has entered into with the Seller (as specified in the applicable
Schedule). If Seller is not an affiliate of Lessor, Lessee shall deliver to
Lessor a writing acceptable to Lessor whereby Seller acknowledges, and provides
any required consent to, such assignment. If Lessee has not entered into any
Purchase Document for the Equipment with Seller, Lessee authorizes Lessor to act
as Lessee's agent to issue a purchase order to Seller for the Equipment and for
associated matters, and such purchase order shall be subject to this Section 2
and all references in this Agreement to Purchase Documents shall include such
purchase order. By executing the applicable Schedule, Lessee represents and
warrants that Lessee either (y) has reviewed, approved and received a copy of
the applicable Purchase Documents or (z) has been informed by Lessor (i) of the
identity of the Seller, (ii) that Lessee may have rights under the Purchase
Documents and (iii) that Lessee may contact Seller for a description of such
rights. The foregoing information shall not be applicable if the Equipment
specified in the Schedule is not new equipment being purchased by Lessor for
lease to Lessee.
3. DELIVERY; ACCEPTANCE.
Lessor shall cause the Equipment to be delivered, at Lessor's expense, to Lessee
at the Equipment Location (as specified in the applicable Schedule) and Lessee
shall accept the Equipment upon the later of (a) the installation of the
Equipment or (b) the satisfaction of the acceptance criteria, if any, specified
in the applicable Purchase Documents. In any event, Lessee shall evidence its
acceptance of the Equipment and commencement of the lease with respect thereto
by executing and delivering to Lessor a commencement certificate (Commencement
Certificate) in a form acceptable to Lessor within five (5) business days after
delivery. By executing and delivering a Commencement Certificate to Lessor,
Lessee represents and warrants that it has selected the Equipment and Seller
specified on the applicable Schedule and Lessee has irrevocably accepted such
Equipment under lease. Lessee shall reimburse Lessor for any late payment,
interest on late payment or any other similar fee or charge imposed by Seller as
the result of Lessee's failure to timely furnish to Lessor all pertinent lease
documentation.
4. PURCHASE OF EQUIPMENT.
Provided that no Event of Default (as defined in Section 17) exists, and no
event has occurred and is continuing that with notice or the lapse of time or
both would constitute an Event of Default, Lessor shall be obligated to purchase
the Equipment from Seller and to lease the Equipment to Lessee if (and only if)
Lessor receives on or before the Latest Commencement Date (as specified in the
applicable Schedule) the related Commencement Certificate and Schedule (both
executed by Lessee), and such other documents or assurances as Lessor may
reasonably request. The foregoing information shall not be applicable if the
Equipment specified in the Schedule is not new equipment being purchased by
Lessor for lease to Lessee.
5. TERM.
The initial term of each Schedule (Initial Term) shall begin on the date
specified as the Commencement Date on the Commencement Certificate with respect
to such Schedule and shall continue for the period specified in such Schedule.
Any renewal term of a Schedule (Renewal Term) shall begin on the expiration of,
as applicable, the Initial Term or any preceding Renewal Term (collectively,
Term).
6. RENT; LATE CHARGES.
Lessee shall pay Lessor the first Rental Payment (as specified in the applicable
Schedule) for the Equipment on or before the Commencement Date of the applicable
Schedule, and shall pay Lessor the remaining periodic Rental Payments on or
before the periodic payment dates specified in the applicable Schedule or, if
periodic payment dates are not specified, on or before the corresponding day of
each subsequent period during the Initial Term of the applicable Schedule,
regardless of whether Lessee has received notice that such Rental Payments are
due. Additionally, if pursuant to this Agreement or the applicable Schedule the
Term is extended or a renewal option exercised, Lessee shall also pay all Rental
Payments required with respect thereto. All Rental Payments will be sent to
Lessor's above-referenced address, or to such other address as specified by
Lessor in writing. Lessee agrees to pay Lessor interest at the rate of 1-1/2%
per month (or such lesser rate as is the maximum rate allowable under applicable
law) on any Rental Payment (or other amount due hereunder) that is not paid
within 10 days of its due date.
7. INSURANCE.
At its own expense, Lessee shall provide and maintain the following insurance:
(a) insurance against the loss or theft of or damage to the Equipment for the
greater of the Stipulated Loss Value (computed as described in the applicable
Schedule) or full replacement value thereof, naming Lessor as a loss payee; and
(b) public liability and third party property damage insurance, naming Lessor as
an additional insured. Such insurance shall be in a form, amount and with
companies reasonably satisfactory to Lessor, shall contain the insurer's
agreement to give Lessor 30 days' prior written notice before cancellation or
material change thereof, and shall be payable to Lessor regardless of any act,
omission or breach by Lessee. Lessee shall deliver to Lessor the insurance
policies or copies thereof or certificates of such insurance on or before the
Commencement Date of the applicable Schedule, and at such other times as Lessor
may reasonably request. If no Event of Default exists, and no event has occurred
and is continuing that with notice or the lapse of time or both would constitute
an Event of Default, the proceeds of any insurance required under clause (a)
hereof that have been paid to Lessor shall be applied against Lessee's
obligations to Lessor under Section 12 hereof.
8. TAXES.
Lessee shall reimburse Lessor for (or pay directly, but only if instructed by
Lessor) all taxes, fees, and assessments that may be imposed by any taxing
authority on the Equipment, on its purchase, ownership, delivery, possession,
operation, rental, return to Lessor or its purchase by Lessee (collectively,
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Taxes); provided, however, that Lessee shall not be liable for any such Taxes
(whether imposed by the United States of America or by any other domestic or
foreign taxing authority) imposed on or measured by Lessor's net income or tax
preference items. Lessee's obligation includes, but is not limited to, the
obligation to pay all license and registration fees and all sales, use, personal
property and other taxes and governmental charges, together with any penalties,
fines and interest thereon, that may be imposed during the Term of the
applicable Schedule. Lessee is liable for these Taxes whether they are imposed
upon Lessor, Lessee, the Equipment, this Agreement or the applicable Schedule.
If Lessee is required by law or administrative practice to make any report or
return with respect to such Taxes, Lessee shall promptly advise Lessor thereof
in writing and shall cooperate with Lessor to ensure that such reports are
properly filed and accurately reflect Lessor's interest in the Equipment. Lessor
has no obligation to contest any such Taxes, however Lessee may do so provided
that: (a) Lessee does so in its own name and at its own expense; (b) the contest
does not and will not result in any lien attaching to any Equipment or otherwise
jeopardize Lessor's right to any Equipment; and (c) Lessee indemnifies Lessor
for all expenses (including legal fees and costs), liabilities and losses that
Lessor incurs as a result of any such contest.
9. REPAIRS; USE; LOCATION; LABELS.
Lessee shall: (a) at its own expense, keep the Equipment in good repair,
condition and working order and maintained in accordance with the manufacturer's
recommended engineering and maintenance standards; (b) use the Equipment
lawfully and exclusively in connection with its business operations and for the
purpose for which the Equipment was designed and intended; and (c) without
Lessor's prior written consent, not move the Equipment from the Equipment
Location (as specified in the applicable Schedule). If Lessor supplies Lessee
with labels stating that the Equipment is owned by Lessor, Lessee shall affix
such labels to the Equipment pursuant to Lessor's instructions.
10. MAINTENANCE; INSPECTION; ALTERATIONS.
At its own expense, Lessee shall: (a) enter into and maintain a maintenance
agreement for the Equipment with the manufacturer or other party acceptable to
Lessor; (b) maintain the Equipment in the same condition as when delivered,
subject only to ordinary wear and tear, and in good operating order and
appearance; (c) make all alterations or additions to the Equipment that may be
required or supplied by the Seller, the manufacturer or which is otherwise
legally necessary; and (d) make no other alterations or additions to the
Equipment (except for alterations or additions that will not impair the value or
performance of the Equipment and that are readily removable without damage to
the Equipment). Any modifications, alterations or additions that Lessee makes to
the Equipment (except as permitted by Section 10(d) above) shall become Lessor's
property and shall also be deemed to be Equipment. Upon request, Lessor, or any
party designated by Lessor, shall have the right to inspect the Equipment and
Lessee's applicable maintenance agreement and records at any reasonable time.
11. PERSONAL PROPERTY; LIENS AND ENCUMBRANCES; TITLE.
The Equipment shall at all times remain personal property, notwithstanding that
the Equipment, or any part thereof, may be (or becomes) affixed or attached to
real property or any improvements thereon. Except for the interest of Lessor,
Lessee shall keep the Equipment free and clear of all levies, liens and
encumbrances of any nature whatsoever. Except as expressly set forth in this
Agreement, the Equipment shall at all times remain the property of Lessor and
Lessee shall have no right, title or interest therein.
12. RISK OF LOSS.
As between Lessor and Lessee, Lessee shall bear the entire risk of loss, theft,
destruction or damage to the Equipment from any cause whatsoever or requisition
of the Equipment by any governmental entity or the taking of title to the
Equipment by eminent domain or otherwise (collectively, Loss). Lessee shall
advise Lessor in writing within 10 days of any such Loss. Except as provided
below, no such Loss shall relieve Lessee of the obligation to pay Lessor Rental
Payments and all other amounts owed hereunder. In the event of any such Loss,
Lessor, at its option, may: (a) if the Loss has not materially impaired the
Equipment (in Lessor's reasonable judgment), require Lessee, upon Lessor's
demand, to place the Equipment in good condition and repair reasonably
satisfactory to Lessor; or (b) if the Loss has materially impaired the Equipment
(in Lessor's reasonable judgment), require Lessee, upon Lessor's demand, to pay
Lessor its anticipated return (Lessor's Return), which shall consist of the
following amounts: (i) the Rental Payments (and other amounts) then due and
owing under the applicable Schedule; plus (ii) the Stipulated Loss Value
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(computed as described in the applicable Schedule) of the Equipment; plus (iii)
all other amounts that become due and owing under the applicable Schedule, but
only to the extent such amounts are not included in the moneys paid to Lessor
pursuant to clauses (i) and (ii) above. Upon Lessor's full receipt of such
Lessor's Return: (y) the applicable Schedule shall terminate and Lessee shall be
relieved of all obligations under the applicable Schedule; and (z) Lessor shall
transfer all of its interest in the Equipment to Lessee "AS IS, WHERE IS," and
without any warranty, express or implied from Lessor, other than the absence of
any liens or claims by, through, or under Lessor. Notwithstanding clause (b)
hereof, Lessee may, at its option, continue Rental Payments under the applicable
Schedule, without interruption, and replace the damaged Equipment with Equipment
of identical model, manufacturer, and condition (Replacement Equipment) (in
which case Lessee shall cause the Replacement Equipment to be delivered to a
location acceptable to Lessor and shall convey title (lien free) to the Lessor
whereupon the Replacement Equipment shall be subject to all of the terms and
conditions of this Agreement and the applicable Schedule).
13. LESSOR DISCLAIMERS; LIMITATION OF REMEDIES.
Lessor acknowledges that Lessee has selected some of the equipment with the
assistance from Lessor, its agents and employees and some of the equipment
without any assistance from Lessor, its agents or employees. Lessee acknowledges
that Lessor does not make, has not made, nor shall be deemed to make or have
made, any warranty or representation, either express or implied, written or
oral, with respect to the equipment leased hereunder or any component thereof,
including, without limitation, any warranty as to design, compliance with
specifications, quality of materials or workmanship, merchant ability, fitness
for any purpose, use or operation, safety, patent, trademark or copyright
infringement, or title. All such risks, as between Lessor and Lessee, are to be
borne by Lessee, provided however, that Lessor shall transfer and assign to the
Lessee, immediately upon the addition of any such Equipment to the without any
reservation or limitation, any and all warranties as to design, compliance with
specifications, quality of materials or workmanship, merchant ability, fitness
for any purpose, use or operation, safety, patent, trademark or copyright
infringement related to the Equipment provided by and/or received from the
Supplier to the Lessee, immediately upon the addition to the Agreement of any
such Equipment without any reservation or limitation. Without limiting the
foregoing, Lessor shall have no responsibility or liability to Lessee or any
other person with respect to any of the following (i) any liability, loss or
damage caused or alleged to be caused directly or indirectly by any Equipment,
any inadequacy thereof, any deficiency or defect (latent or otherwise) therein,
or any other circumstance in connection therewith; (ii) the use, operation or
performance of any Equipment or any risks relating thereto; (iii) any
interruption of service, loss of business or anticipated profits or
consequential damages; or (iv) the delivery, operation, servicing, maintenance,
repair, improvement or replacement of any Equipment. If, and so long as, no
Default (as hereinafter defined) exists under this Agreement, Lessee shall be,
and hereby is, authorized during the Term (as hereinafter defined) to assert and
enforce, at Lessee's sole cost and expense, from time to time, in the name of
and for the account of Lessor and/or Lessee, as their interests may appear,
whatever claims and rights Lessor may have against any Supplier of the Equipment
and Lessor agrees to take such action as may be necessary to assign any and all
express or implied warranties with respect to the Equipment to Lessee for this
purpose, to the extent reasonably requested, and at Lessee's sole cost and
expense.
14. LESSEE WARRANTIES.
Lessee represents, warrants and covenants to Lessor that: (a) Lessee is duly
organized, validly existing and in good standing under applicable law; (b)
Lessee has the power and authority to enter into this Agreement, all Schedules
and all other related instruments or documents hereunder (collectively,
Fundamental Agreements); (c) such Fundamental Agreements are enforceable against
Lessee in accordance with their terms and do not violate or create a default
under any instrument or agreement binding on Lessee; (d) there are no pending or
threatened actions or proceedings before any court or administrative agency that
would have a material adverse effect on Lessee or any Fundamental Agreement,
unless such actions are disclosed to Lessor and consented to in writing by
Lessor; (e) Lessee shall comply in all material respects with all Federal, state
and municipal laws and regulations the violation of which could have a material
adverse effect upon the Equipment or Lessee's performance of its obligations
under any Fundamental Agreement; (f) Lessee shall obtain all governmental
approvals necessary for it to enter into and perform each Fundamental Agreement;
(g) each Fundamental Agreement shall be effective against all creditors of
Lessee under applicable law, including fraudulent conveyance and bulk transfer
laws, and shall raise no presumption of fraud; (h) financial statements and
other related information furnished by Lessee shall be prepared in accordance
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with generally accepted accounting principles and shall present Lessee's
financial position as of the dates given on such statements; (i) Lessee shall
furnish Lessor with its certified financial statements, opinions of counsel,
resolutions, and such other information and documents as Lessor may reasonably
request; (j) all Equipment is leased for business purposes only, and not for
personal, family or household purposes; and (k) all Equipment is tangible
personal property and shall not become a fixture or real property under Lessee's
use thereof. Lessee shall be deemed to have reaffirmed the foregoing warranties
each time it executes any Fundamental Agreement.
15. GENERAL INDEMNITY.
Lessee shall indemnify, hold harmless, and, if so requested by Lessor, defend
Lessor against all claims (Claims) directly or indirectly arising out of or
connected with the Equipment or any Fundamental Agreement. Claims refers to all
losses, liabilities, damages, penalties, expenses (including legal fees and
costs), claims, actions, and suits, whether based on a theory of strict
liability of Lessor or otherwise, and includes, but is not limited to, matters
regarding: (a) the selection, manufacture, purchase, acceptance, rejection,
ownership, delivery, lease, possession, maintenance, use, condition, return or
operation of the Equipment; (b) any latent defects or other defects in any
Equipment, whether or not discoverable by Lessor or by Lessee; (c) any patent,
trademark, or copyright infringement; and (d) the condition of any Equipment
arising or existing during Lessee's use.
16. SURRENDER; EXTENSION OF TERM.
Unless Lessee purchases the Equipment or renews the Term pursuant to the
applicable Schedule, or acquires the Equipment pursuant to Section 12 hereof,
Lessee shall, at its expense, deinstall, inspect and properly pack the
Equipment, and return the Equipment at the expiration of the Term, free of all
liens and rights of others, by delivering it on board such common carrier as
Lessor may specify with freight prepaid to any destination within the United
States of America specified by Lessor. The Equipment shall be accompanied by an
original copy of the relocation inventory or other applicable form completed by
the agent performing the deinstallation. If Lessor so requests, Lessor and its
agents shall have the right to enter upon any premises where Equipment may be
located to perform any of Lessee's tasks noted above in this Section 16, and
Lessee shall reimburse Lessor for all costs and expenses Lessor incurs in
fulfilling such tasks. Lessee agrees that the Equipment, when returned to
Lessor, shall be in the same condition as when delivered to Lessee, reasonable
wear and tear excepted, and certified as being eligible for the manufacturer's
generally available maintenance contract at then prevailing rates, without
Lessor incurring any expense to repair, rehabilitate or certify such Equipment
(Lessee shall be liable for all costs and expenses Lessor incurs to place the
Equipment in such condition). If requested by Lessor, Lessee, at its expense,
shall store the Equipment on its premises for a reasonable period, not to exceed
ten (10) business days during which period the Equipment shall be subject to all
of the terms and conditions hereof, except for the obligation to make Rental
Payments. In all instances where Lessee is returning Equipment to Lessor, Lessee
shall give Lessor written notice thereof in accordance with the terms of the
applicable Schedule. If Lessee fails to provide the aforementioned notice or
return the Equipment to Lessor in the time and manner provided above, the Term
shall be extended in accordance with the terms of the applicable Schedule. If
any Schedule is extended pursuant to the preceding sentence, Lessee shall
continue to pay the higher of the periodic Rental Payments in effect prior to
the expiration of the then existing term of the applicable Schedule (whether it
be the Initial Term or any Renewal Term (Applicable Term)) or such other
periodic rental payment amount as is specified for such extension period in the
Schedule, and all other provisions of this Agreement shall continue to apply.
17. EVENTS OF DEFAULT.
Any of the following shall constitute an Event of Default under this Agreement
and all Schedules: (a) Lessee fails to pay any Rental Payment or any other
amount payable to Lessor hereunder within 10 days after its due date; or (b)
Lessee fails to perform or observe any other representation, warranty, covenant,
condition or agreement to be performed or observed by Lessee hereunder or in any
other agreement with Lessor, or in any agreement with any other person that in
Lessor's sole opinion is a material agreement, and Lessee fails to cure any such
breach within 10 days after notice thereof; or (c) any representation or
warranty made by Lessee hereunder, or in any other instrument provided to Lessor
by Lessee, proves to be incorrect in any material respect when made; or (d)
Lessee makes an assignment for the benefit of creditors, whether voluntary or
involuntary; or (e) a proceeding under any bankruptcy, reorganization,
arrangement of debts, insolvency or receivership law is filed by or against
Lessee or Lessee takes any action to authorize any of the foregoing matters; or
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(f) Lessee becomes insolvent or fails generally to pay its debts as they become
due, the Equipment is levied against, seized or attached, or Lessee seeks to
effectuate a bulk sale of Lessee's inventory or assets; or (g) Lessee
voluntarily or involuntary dissolves or is dissolved, or terminates or is
terminated; or (h) any guarantor under this Agreement is the subject of an event
listed in clauses (b) through (g) above; or (i) any letter of credit required
pursuant to any Schedule is breached, canceled, terminated or not renewed during
the Term of any such Schedule.
18. REMEDIES.
If an Event of Default occurs, Lessor may, in its sole discretion, exercise one
or more of the following remedies: (a) terminate this Agreement or any or all
Schedules; or (b) take possession of, or render unusable, any Equipment wherever
the Equipment may be located, without demand or notice, without any court order
or other process of law and without liability to Lessee for any damages
occasioned by such action, and no such action shall constitute a termination of
any Schedule; or (c) require Lessee to deliver the Equipment at a location
designated by Lessor; or (d) declare the Lessor's Return (as defined in Section
12 hereof and calculated by Lessor as of the date of the Event of Default) for
each applicable Schedule due and payable as liquidated damages for loss of a
bargain and not as a penalty and in lieu of any further Rental Payments under
the applicable Schedule; or (e) proceed by court action to enforce performance
by Lessee of any Schedule and/or to recover all damages and expenses incurred by
Lessor by reason of any Event of Default; or (f) terminate any other agreement
that Lessor may have with Lessee; or (g) exercise any other right or remedy
available to Lessor at law or in equity. Also, Lessee shall pay Lessor all costs
and expenses (including legal fees and costs and fees of collection agencies)
incurred by Lessor in enforcing any of the terms, conditions or provisions of
this Agreement. Upon repossession or surrender of any Equipment, Lessor shall
lease, sell or otherwise dispose of the Equipment in a commercially reasonable
manner, with or without notice and at public or private sale, and apply the net
proceeds thereof (after deducting all expenses (including legal fees and costs)
incurred in connection therewith) to the amounts owed to Lessor hereunder;
provided, however, that Lessee shall remain liable to Lessor for any deficiency
that remains after any sale or lease of such Equipment. Lessee agrees that with
respect to any notice of a sale required by law to be given, 10 days' notice
shall constitute reasonable notice. These remedies are cumulative of every other
right or remedy given hereunder or now or hereafter existing at law or in equity
or by statute or otherwise, and may be enforced concurrently therewith or from
time to time.
19. LESSOR'S PERFORMANCE OF LESSEE'S OBLIGATIONS.
If Lessee fails to perform any of its obligations hereunder, Lessor may perform
any act or make any payment that Lessor deems reasonably necessary for the
maintenance and preservation of the Equipment and Lessor's interests therein;
provided, however, that the performance of any act or payment by Lessor shall
not be deemed a waiver of, or release Lessee from, the obligation at issue. All
sums so paid by Lessor, together with expenses (including legal fees and costs)
incurred by Lessor in connection therewith, shall be paid to Lessor by Lessee
immediately upon demand.
20. FINANCING OF ADDITIONS.
If, under any Schedule, Lessee intends to make any addition to the Equipment,
Lessee shall, in writing, request Lessor to finance the costs of such addition.
Lessee shall provide Lessor with the terms under which it hopes to obtain the
financing, and upon receiving such a request Lessor shall determine, in its sole
discretion, whether to provide such financing. If Lessor does not, within 20
days after receiving Lessee's request, offer to finance the addition upon the
terms requested by Lessee, Lessee may obtain offers from third parties for
financing the addition, and Lessee shall notify Lessor of the details of any
third party financing offer Lessee would like to accept (Third Party Offer). If
Lessor has not made a financing offer to Lessee on terms substantially similar
to the Third Party Offer within 20 days of receiving Lessee's notice, Lessee may
accept the Third Party Offer unless: (a) the aggregate cost to Lessee of
obtaining financing from the Third Party Offer is greater than the aggregate
cost under Lessor's financing offer; or (b) the Third Party Offer would create a
security interest in, or a lien on, the Equipment; or (c) the addition is not
permitted under Section 10(d) hereof.
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21. ASSIGNMENT BY LESSOR.
Lessor shall have the unqualified right to assign, pledge, transfer, mortgage or
otherwise convey any of its interests hereunder or in any Schedule or any
Equipment, in whole or in part, without notice to, or consent of, Lessee. If any
Schedule is assigned, Lessee shall: (a) unless otherwise specified by the Lessor
and the assignee (Assignee) specified by Lessor, pay all amounts due under the
applicable Schedule to such Assignee, notwithstanding any defense, setoff or
counterclaim whatsoever that Lessee may have against Lessor or Assignee; (b) not
permit the applicable Schedule to be amended or the terms thereof waived without
the prior written consent of the Assignee; (c) not require the Assignee to
perform any obligations of Lessor, other than those that are expressly assumed
in writing by such Assignee; and (d) execute such acknowledgments thereto as may
be requested by Lessor. It is further agreed that: (x) each Assignee shall be
entitled to all of Lessor's rights, powers and privileges under the applicable
Schedule, to the extent assigned; (y) any Assignee may reassign its rights and
interest under the applicable Schedule with the same force and effect as the
assignment described herein; and (z) any payments received by the Assignee from
Lessee with respect to the assigned portion of the Schedule shall, to the extent
thereof, discharge the obligations of Lessee to Lessor with respect to the
assigned portion of the Schedule. LESSEE ACKNOWLEDGES THAT ANY ASSIGNMENT OR
TRANSFER BY LESSOR OR ANY ASSIGNEE SHALL NOT MATERIALLY CHANGE LESSEE'S
OBLIGATIONS UNDER THE ASSIGNED SCHEDULE.
22. ASSIGNMENT OR SUBLEASE BY LESSEE.
WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, LESSEE SHALL NOT ASSIGN THIS AGREEMENT
OR ANY SCHEDULE OR ASSIGN ITS RIGHTS IN OR SUBLET THE EQUIPMENT OR ANY INTEREST
THEREIN; provided, however, that Lessee may sublease or assign a Schedule to an
affiliate or a wholly-owned subsidiary of Lessee if: (a) Lessee and such
sublessee or assignee execute and deliver to Lessor a writing (to be provided by
Lessor) whereby the sublessee or assignee agrees to assume joint and several
liability with Lessee for the full and prompt payment, observance and
performance when due of all of the obligations of the Lessee under such
Schedule; and (b) Lessor consents to such sublease or assignment, which consent
shall not be unreasonably withheld. In no event, however, shall any such
sublease or assignment discharge or diminish any of Lessee's obligations to
Lessor under such Schedule.
23. SURVIVAL; QUIET ENJOYMENT.
All representations, warranties and covenants made by Lessee hereunder shall
survive the termination of this Agreement and shall remain in full force and
effect. All of Lessor's rights, privileges, and indemnities, to the extent they
are fairly attributable to events or conditions occurring or existing on or
prior to the termination of this Agreement, shall survive such termination and
be enforceable by Lessor and any successors and assigns. So long as no Event of
Default exists, and no event has occurred and is continuing that with notice or
the lapse of time or both would constitute an Event of Default, neither Lessor
nor any Assignee will interfere with Lessee's quiet enjoyment of the Equipment.
24. FILING FEES; FURTHER ASSURANCES; NOTICES.
Lessee will promptly reimburse Lessor for any filing or recordation fees or
expenses (including lien search fees, legal fees and costs) incurred by Lessor
in perfecting or protecting its interests in the Equipment and under this
Agreement. Lessee shall promptly execute and deliver to Lessor such documents
and take such further action as Lessor may from time to time reasonably request
in order to carry out the intent and purpose of this Agreement and to protect
the rights and remedies of Lessor created or intended to be created hereunder.
All notices under this Agreement shall be sent to the respective party at its
address set forth on the front page of this Agreement or on the applicable
Schedule or at such other address as the parties may provide to each other in
writing from time to time. Any such notice mailed to said address shall be
effective when deposited in the United States mail, duly addressed and with
first class postage prepaid.
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25. NO WAIVER OF JURY TRIAL; SUCCESSORS
Lessee and Lessor each do not waive all right to trial by jury in any lawsuit,
proceeding, counterclaim or any other litigation or proceeding upon, arising out
of, or related to, this agreement, any other fundamental agreement, or the
dealings or relationship between or among Lessor, Lessee, seller or any other
person.
This Agreement and all Schedules inure to the benefit of and are binding upon
the permitted successors or assigns of Lessor and Lessee.
26. NO WAIVER; LESSOR APPROVAL.
Any failure of Lessor to require strict performance by Lessee, or any written
waiver by Lessor of any provision hereof, shall not constitute consent or waiver
of any other breach of the same or any other provision hereof. Neither this
Agreement nor any other Fundamental Agreement shall be binding upon Lessor
unless and until executed by Lessor.
27. CAPTIONS; COUNTERPARTS; LESSOR'S AFFILIATES.
The captions contained in this Agreement are for convenience only and shall not
affect the interpretation of this Agreement. Only one counterpart of the
Schedule shall be marked "Original" (Original), and all other counterparts
thereof shall be marked as, and shall be, duplicates. To the extent that any
Schedule constitutes chattel paper (as such term is defined in the Uniform
Commercial Code in effect in any applicable jurisdiction), no security interest
in such Schedule may be created through the transfer or possession of any
counterpart other than the Original. Lessee understands and agrees that Xxxxxx
Ventures Corporation or any division, affiliate or subsidiary thereof, may, as
Lessor, execute Schedules under this Agreement, in which event the terms and
conditions of the applicable Schedule and this Agreement as it relates to the
Lessor under such Schedule shall be binding upon and shall inure to the benefit
of such entity executing such Schedule as Lessor, as well as any successors or
assigns of such entity.
28. CHOICE OF LAW; INTEGRATION; ENTIRE AGREEMENT.
Each lease and schedule under this Agreement shall be governed by the internal
laws (as opposed to conflicts of law provisions) of the state of Utah.
If any provision of this Agreement or such Schedule shall be prohibited by or
invalid under that law, such provision shall be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement or such Schedule. Lessor
and Lessee consent to the jurisdiction of any local, state or Federal court
located within the State, and waive any objection relating to improper venue or
forum non conveniens to the conduct of any proceeding in any such court. This
Agreement and all other Fundamental Agreements executed by both Lessor and
Lessee constitute the entire agreement between Lessor and Lessee relating to the
leasing of the Equipment, and supersede all prior agreements relating thereto,
whether written or oral, and may not be amended or modified except in a writing
signed by the parties hereto.
LESSOR: LESSEE:
XXXXXX LEASING GROUP, a Division of NOXSO CORPORATION
XXXXXX VENTURES CORPORATION For Itself And As Agent For Its
For Itself And As Agent For Certain Subsidiaries and Participants
Participants
/s/ Xxxx X. Xxxxxxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
--------------------------- ----------------------------------
By: Xxxx X. Xxxxxxxxxxxx By: Xxxxxxx X Xxxxxxxx
Its: CEO & President Its: Its: CEO & President
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