ALLY CAPITAL CORPORATION
Equipment Lease Agreement
THIS EQUIPMENT LEASE AGREEMENT is made as of the 6th day of
April, 1995 by and between ALLY CAPITAL CORPORATION ("Lessor")
and ELECTROSOURCE, INC. ("Lessee"). All of the defined terms and
rules of construction pertaining to this Lease are set forth in
Section 17 hereof.
1. TERM AND RENT.
(a) Lessor agrees to lease to Lessee, and Lessee agrees to
lease from Lessor, the Equipment described in each Equipment
Schedule to be executed pursuant hereto. This Lease shall be
effective from and after the date of execution hereof, whether or
not any Equipment Schedule has been entered into, and as an
inducement to Lessor to enter into this Lease, Lessee agrees that
it shall, pursuant to the terms hereof, be liable for, subject
to, undertake or comply with, as the case may be, all of the
representations, warranties, agreements, disclaimers, waivers and
indemnifications made herein that pertain to Lessee and Lessor
generally, or to events that arise or occur in connection with
transactions that the parties intend to document under an
Equipment Schedule, whether or not such Equipment Schedule is
ever effectively entered into, and any other provisions of any of
the Lease Documents that may be necessary or appropriate for the
interpretation or enforcement of the foregoing. The Term of this
Lease with respect to any item of the Equipment shall consist of
the Term set forth in the Equipment Schedule relating thereto;
and, except as otherwise expressly provided herein Lessor's and
Lessee's respective rights and obligations thereunder (including
Lessee's obligation to pay Basic Rent for the items of Equipment
described therein) shall commence and continue at all times from
and after the effective date thereof, and terminate upon the
expiration of the Term thereof and Lessee's complete performance
of all of its obligations thereunder.
(b) Lessee shall pay Lessor Basic Rent for the Equipment,
without any deduction or setoff and without prior notice or
demand, in the aggregate amounts specified in each Equipment
Schedule, and Supplemental Rent, promptly as such Rent shall
become due and owing. In addition to each such payment of Rent,
on the due date therefor, Lessee shall be liable for and shall
pay to Lessor an Administrative Fee; provided, however, to the
extent such payment of Rent shall be received by Lessor in good
collected indefeasible funds on the due date therefor, Lessee
shall be relieved of its obligation to pay the Administrative Fee
attributable to such Rent payment. Lessee agrees that it shall
have no right to, and it shall not, pay any Rent prior to the due
date thereof. Each equipment Schedule shall be and remain a non-
cancelable net lease, and Lessee shall not be entitled to any
abatement or reduction of Rent due thereunder for any reason.
Without limiting the foregoing, Lessee's obligation to pay Rend,
and to otherwise perform its obligations under the Lease
Documents, are and shall be absolute and unconditional until,
with respect to each Equipment Schedule, such Equipment Schedule
terminates in accordance with its terms and shall not be affected
by any circumstances, happenings or events whatsoever and
whenever and howsoever occurring, 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, or anyone else for any reason whatsoever. If for any
reason whatsoever, any Equipment Schedule shall be terminated in
whole or in part by operation of law or otherwise (other than
pursuant to the expiration of the Term of the applicable
Equipment Schedule), Lessee nonetheless agrees to pay to Lessor
an amount equal to each payment of Rent at the time such payment
would have become due and payable in accordance with the terms
hereof had such Equipment Schedule not been terminated in whole
or in part. Rent is payable as and when specified in the
Equipment Schedule, or as otherwise provided herein, by mailing
the same to Lessor at its address specified pursuant to this
Lease; and shall be effective upon receipt. Timeliness of
Lessee's payment and other performance of its obligations under
the Lease Documents is of the essence.
Notwithstanding anything in this Section 1(b) to the contrary,
Lessee shall be entitled to a credit in an amount equal to the
Abatement Amount against its obligation to pay Basic Rent for any
item(s) of Equipment suffering an Impairment of Use conditioned
upon the following: (A) Lessee provides Lessor with written
notice of such Impairment of Use within two business days after
having written notice or actual knowledge thereof (whichever
occurs first), with a full and complete description of such
Impairment of Use, including the nature and extent thereof, and
(B) Lessee provides to Lessor all necessary and appropriate
cooperation with respect to Lessor's or its designee's
investigation, replacement, curing action or other action with
respect to such Impairment of Use. In furtherance of the
foregoing, Lessee (i) agrees that in the event Lessor replaces
any item of Equipment with Replacement Equipment, Lessor shall be
deemed to have cured any Impairment of Use with respect to such
replaced items of Equipment, on and as of the date of Lessee's
acceptance of such Replacement Equipment; (ii) shall execute a
supplement to the appropriate Equipment Schedule thereby
substituting the Replacement Equipment for such replaced item of
Equipment; (iii) shall without further action be deemed to have
conveyed to Lessor good title, free and clear of all Liens, to
any item of Equipment replaced pursuant hereto or for which the
Abatement Period pertaining thereto extends to the expiration of
the Term of the Equipment Schedule, by making it available to
Lessor and (iv) shall execute and deliver to Lessor a xxxx of
sale pertaining thereto that is acceptable to Lessor.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSEE.
Lessee represents, warrants and covenants that: (a) It is a
corporation duly organized and validly existing in good standing
under the laws of the state of Delaware, is duly qualified to do
business in all jurisdictions where failure to be so qualified
would have a material adverse effect on the financial condition,
business or operations of Lessee, or impair the enforcement of
its obligations under the Lease Documents. (b) The execution,
delivery and performance of the Lease Documents and compliance
with the terms thereof: (i) have been duly authorized by all
necessary corporate action on the part of Lessee; (ii) do not
require the approval of any stockholder, trustee or holder of any
obligations of Lessee except such as have been duly obtained; and
(iii) do not and will not contravene any Law, now binding on
Lessee, or the charter or by-laws of Lessee under, any indenture,
mortgage, contract or other agreement to which Lessee is a party
or by which it or its property is bound. (c) The Lease
Documents, when entered into, will constitute legal, valid and
binding obligations of Lessee, enforceable against Lessee in
accordance with the terms thereof. (d) 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 Government Authority, which,
either individually or in the aggregate, would adversely affect
the financial condition of Lessee, or the ability of Lessee to
perform its obligations under, or comply with the terms of, the
Lease Documents. (e_ Lessee is not in default under any
obligation for the payment of borrowed money, for the deferred
purchase price of property or for the payment of any rent under
any lease agreement which, either individually or in the
aggregate, would have the same such effect. (f) With respect to
the Equipment covered by each Equipment Schedule, under the
Applicable Laws of the state(s) in which such Equipment is to be
located, such Equipment consists solely of personal property and
not fixtures. (g) The financial statements of Lessee (copies of
which have been furnished to Lessor) have been prepared in
accordance with GAAP, and fairly present Lessee's financial
conditions 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. (h) The address stated below the
signature of Lessee is the chief place of business and chief
executive office (which terms shall have the meanings provided in
Article 9 of the Code) of Lessee; and Lessee does not conduct
business under a trade, assumed or fictitious name. (i) With
respect to the Equipment covered by each Equipment Schedule,
Lessor will have a valid, perfected, first priority security
interest in such Equipment pursuant to the Code and other
Applicable Law upon its purchase of such Equipment and its filing
all of the UCCs executed by Lessee in connection therewith. (j)
With respect hereto and to each Equipment Schedule, Less has not
permitted, and will not permit, any person to engage in any
activity that could result in the imposition of liability under
Applicable Law on Lessee, Lessor or any owner or operator of the
Equipment, or would otherwise impair Lessor's rights or title
pertaining thereto.
3. FINANCIALS, FURTHER ASSURANCES AND NOTICES. Lessee
covenants and agrees as follows: (a) Lessee will, if requested
by Lessor, furnish Lessor (i) within one hundred twenty (120)
days after the end of each fiscal year of Lessee, a balance sheet
of Lessee as at the end of such year, and the related statement
of income and statement of cash flows of Lessee for such fiscal
year, prepared in accordance with GAAP, all in reasonable detail
and certified by independent certified public accountants of
recognized standing selected by Lessee; (ii) within sixty (0)
days after the end of each quarter of Lessee's fiscal year, a
balance sheet of Lessee as at the end of such quarter, and the
related statement of income and statement of cash flows of Lessee
for such quarter, prepared in accordance with GAAP; and (iii)
within thirty (30) days after the date on which they are filed,
all regular periodic reports, forms and other filings required to
be made by Lessee to the Securities and Exchange Commission, if
any. (b) Lessee will promptly execute and deliver to Lessor such
further documents, instruments and assurances and take such
further action as Lessor from time to time may reasonably request
in order to carry out the intent and purpose of this Lease and to
establish and protect the rights and remedies created or intended
to be created in favor of Lessor under the Lease Documents. (c)
Lessee shall provide written notice to Lessor: (i) thirty (30)
days prior to any contemplated change in the name or address of
Lessee; (ii) promptly upon the occurrence of any default or
Default; and (iii) promptly upon the commencement of proceedings
under Federal bankruptcy laws or any other insolvency laws (as
now or hereafter in effect) involving Lessee or any person (other
than Lessor) holding an interest in the Equipment or related
property as the debtor.
4. CONDITIONS PRECEDENT. Lessor's obligations under each
Equipment Schedule, including Lessor's obligation to purchase and
participate in the financing of any Equipment to be leased
thereunder, are conditioned upon: (a) Lessor having received, at
least two (2) business days prior to the date upon which Lessor
purchases the Equipment or has committed to purchase same (if
sooner), all of the following in form and substance satisfactory
to Lessor: (i) evidence as to due compliance with the insurance
provisions hereof; (ii) UCCs and all other filings and recordings
with respect to the transactions contemplated thereunder which
are necessary or appropriate to establish, protect, perfect or
give first priority to Lessor's title in the Equipment leased
thereunder; (iii) if requested by Lessor, a certificate of
Lessee's Secretary certifying: (1) resolutions of Lessee's Board
of Directors duly authorizing the leasing of the Equipment under
such Equipment Schedule and the execution, delivery and
performance thereof and of all related Lease Documents, and (2)
the incumbency and specimen signatures of the officers of Lessee
authorized to execute such documents; (iv) if requested by
Lessor, an opinion of counsel for Lessee as to each of the
matters set forth in subsections (a) through (i) (other than
subsection (g)) of Section 2 hereof; (v) the only manually
executed original of such Equipment Schedule and all other Lease
Documents; (vi) to the extent requested by Lessor, copies or
reports of searches conducted at the appropriate recordation
offices against Lessee, the Equipment and premises at which the
Equipment is or is to be located; (vii) a copy of an executed
xxxx of sale to Lessor for the Equipment together with an invoice
of the seller thereof specifying the purchase price for such
Equipment; (viii) all Purchase Documents pertaining to the
Equipment, and, to the extent requested by Lessor, an
acknowledgment and assignment of Lessee's rights, if any, under
such Purchase Documents, including all warranties, indemnities,
licenses, remedies and other rights thereunder, which Lessor
shall be entitled to exercise in connection with its exercise of
its remedies under Section 15 of this Lease; (iv) if Lessor is
purchasing the Equipment from Lessee, all of the operating
records pertaining to the maintenance and use of the Equipment;
and (x) such other documents, agreements, instruments,
certificates, opinions, assurances, as Lessor may reasonably
require.
(b) (i) The representations and warranties of Lessee
herein or in any of the other Lease Documents, and of each other
person (other than Lessor) in any of the other documents or
agreements delivered to Lessor pursuant hereto or thereto shall
be true and correct on and as of the effective date of such
Equipment Schedule with the same effect as though made on and as
of such date (Lessee's execution and delivery of the Equipment
Schedule shall constitute an acknowledgment of the same); and
(ii) there shall be no default or Default under the
Equipment Schedule or any other Lease Documents, nor shall there
have occurred any casualty or Total Loss, or even or condition
which with notice or passage time, or both, would constitute a
casualty or Total Loss with respect to the equipment to be leased
under the Equipment Schedule.
(c) (i) Lessor shall be permitted under all Applicable
Laws to purchase and provide financing to Lessee for the
Equipment and to enter into the transactions contemplated herein
and in the Equipment Schedule; and (ii) there shall have been no
change in Law or proposed change in Law or in Lessee's financial
condition which could make it inadvisable for Lessor to do so, in
Lessor's sole discretion.
(d) (i) If Lessor is purchasing the Equipment from Lessee,
Lessee shall have paid all amounts due to the Supplier (including
any vendor or manufacturer) and to any other persons from whom
Lessee acquired any right, title or interest in the Equipment, or
with respect to any improvements thereon, additions thereto, or
transportation or storage thereof, on or prior to the effective
date of the Equipment Schedule; (ii) the Equipment shall have
been delivered to and accepted by Lessee, and be in the condition
and repair required hereby; and (iii) Lessor shall have received
a xxxx of sale from the Supplier, on or prior to the effective
date of the Equipment Schedule, that is valid and legally
binding, and effective to convey to Lessor good title to the
Equipment to be leased thereunder, free and clear of any Lien.
5. DELIVERY INSPECTION AND ACCEPTANCE BY LESSEE. Lessee shall
provide an acceptable installation environment as specified in
any applicable manufacturer's manual or by Applicable Law, and,
except as otherwise specified by manufacturer, shall furnish all
labor required to install the Equipment. Upon delivery, Lessee
shall inspect the Equipment and, if the same is found to be in
good order and in compliance with the provisions of any
applicable Supply Contract, accept delivery of the same and
execute and deliver to Lessor an Equipment Schedule containing a
complete description of the accepted Equipment. The Lessee
acknowledges that its execution and delivery of any Equipment
Schedule shall constitute conclusive evidence that as between
Lessor and Lessee, the Equipment shall be deemed to have been
finally and irrevocably accepted by Lessee pursuant to this Lease
and such Equipment Schedule. Lessor shall not be liable for loss
or damage occasioned by any cause, circumstance or event of
whatsoever nature relating to delivery, inspection, installation
or acceptance, including the failure of or delay in delivery,
delivery to the wrong place, delivery of improper equipment or
property other than the Equipment, damage to the Equipment,
governmental regulations, strike, embargo or other cause,
circumstance or event, whether of like or unlike nature. All
expenses incurred in connection with Lessor's purchase of the
Equipment (including taxes, shipment, delivery and installation)
shall be the responsibility of Lessee and shall be either, at
Lessor's sole option, capitalized or expensed or paid by Lessee
upon demand. If as a result of any damage to the Equipment,
strike, embargo or other similar cause certified to Lessor in
writing by Lessee's responsible officer and verified to Lessor's
satisfaction by such other evidence relating thereto as Lessor
may reasonably request, Lessee shall refuse to accept delivery of
the Equipment, Lessee will be assigned all rights and shall
assume, indemnify and hold Lessor harmless from all obligations
as purchaser of the Equipment and all other Claims relating
thereto pursuant to Section 13 hereof.
6. USE AND MAINTENANCE. (a) Lessee shall (i) use the
Equipment solely in the conduct of its business, for the purpose
for which the Equipment was designed, in a careful and proper
manner and not discontinue use of the Equipment; (ii) operate,
maintain, inspect, service, repair, overhaul and test the
Equipment, and maintain all records, logs and other materials
relating thereto, in accordance with (1) all maintenance and
operating manuals or service agreements, whenever furnished or
entered into, including any subsequent amendments, supplements,
renewals or replacements thereof, issued by the manufacturer or
service provider, (2) the requirements of all applicable
insurance policies, (3) the Purchase Documents, 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, (4) Applicable Laws, and (5) consistent with 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; (iii) not change the location of any Equipment as specified
in the Equipment Schedule without the prior written consent of
Lessor; (iv) not attach or incorporate the Equipment to or in any
other item of equipment in such a manner that the Equipment may
be deemed to have become an accession to or a part of such other
item of equipment; (v) cause each principal item of the Equipment
to be continually marked, in a plain and distinct manner, with
the name of Lessor or its designee following by the words "Owner
and Lessor," or other appropriate words designated by Lessor on
labels furnished by Lessor; and (vi) cause the Equipment to be
kept and maintained in good operating condition and in 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. With respect to Lessee's
agreement in subclause (ii) above to maintain, inspect, service,
repair, overhaul and test each item of Equipment in accordance
with sub-subclauses (1,), (3) and (5), Lessee shall undertake and
be responsible for the foregoing in exchange for a credit to
Lessee's rental obligations the amount of which has been
calculated and agreed to by both Lessee and Lessor as fair and
complete consideration for such undertaking and responsibility as
it may now and hereafter exist (including the payment of all
charges, fees, costs and expenses relating thereto), and
accounted for in the amount of Basic Rent Lessee has agreed to
pay for such item of Equipment by its execution and delivery of
the Equipment Schedule relating thereto. In furtherance of the
foregoing, Lessee acknowledges and agrees that (A) the credit
provided for in the preceding sentence shall fully discharge
Lessor for all purposes from performing or complying with any of
the obligations specified in such sentence (to the extent Lessor
would be deemed to have had any responsibility therefor), and (B)
it shall also undertake, be responsible for and otherwise fully
perform and comply with all of the obligations provided for
herein that are not specified in the preceding sentence, and that
it shall not be entitled to any credit or other compensation with
respect thereto, nor shall Lessor have any responsibility to
Lessee or any other person with respect to the performance or non-
performance of, or compliance or non-compliance with, any of such
obligations, or any other obligations not expressly assumed by it
hereunder.
(b) If any parts of the Equipment become worn out, lost,
destroyed, damaged beyond repair or otherwise permanently
rendered unfit for use, Lessee, at its own expense, will within a
reasonable time replace such parts with replacement parts that
are free and clear of all Liens and have a value and utility at
least equal to the value, condition and utility that such
replaced parts would have had if maintained in the condition and
repair required by the terms hereof. In the event that any
Applicable Law requires alteration or modification to the
Equipment, Lessee will conform thereto or obtain conformance
therewith, and shall otherwise cause the altered or modified
Equipment to comply with the provisions hereof. With respect to
parts, additions or improvements which are added to the Equipment
that are essential to the operation of the Equipment, are
necessary to cause it to be in compliance with the provisions of
this Lease or which cannot be detached from the Equipment without
materially interfering with the operation of the equipment or
adversely affecting the value, condition and utility which the
Equipment would have had without the addition thereof, title
thereto shall immediately vest in Lessor to the same extent and
with the same priority as Lessor holds in the Equipment, without
cost or expense to Lessor, or any further action by any other
person, and such parts, improvement and additions shall be deemed
incorporated in the Equipment and subject to the terms of this
Lease as if originally leased hereunder. Lessor agrees that upon
Lessee's replacing a part in full compliance with the provisions
of this subsection (b), all of Lessor's right, title and interest
in and to any part so replaced shall without further action vest
in Lessee "AS IS, WHERE IS," and otherwise subject to the
provisions of Section 7 hereof. Lessee shall not make any
material alterations to the Equipment without the prior written
consent of Lessor, which consent shall not be unreasonably
withheld.
(c) Upon the twenty-four (24) hours' written or telephonic
request of Lessor, Lessee shall provide to Lessor any information
reasonably requested by Lessor pertaining to the Equipment or
Lessee, including, the location and condition of the Equipment.
Upon reasonable advance notice (which the parties agree shall be
no less than forty-eight (48) hours' written or telephonic
request) Lessee shall afford Lessor access to Lessee's premises
where the Equipment is located for the purpose of inspecting such
Equipment, all applicable maintenance and other records, Permits,
licenses and any notices or directives from any manufacturer,
vendor, service provider or Governmental Authority, at any
reasonable time during normal business hours; provided, however,
if a Default or default shall have occurred and be continuing, no
notice of any inspection by Lessor shall be required. In the
event Lessee fails or is unable to perform any of its obligations
hereunder, Lessor shall have the right, but not the obligation,
to perform the same, and Lessee shall forthwith reimburse Lessor
on an after-tax basis, as Supplemental Rent, for all costs and
expenses incurred by Lessor in performing the same. Lessor shall
not have any duty to make or cause to be made any inspection,
repair, restoration, replacement, renewal, addition or
improvement of any nature of description with respect to the
Equipment, or the related property or to incur any cost or
expense in connection with any Lease Document and Lessor shall
not incur any liability or obligation to any person by reason of
Lessor's doing, causing to be done or failing to do any of the
foregoing, in its discretion.
7. DISCLAIMER OF WARRANTIES. LESSEE HEREBY ACKNOWLEDGES AND
AGREES THAT: EXCEPT FOR THE WARRANTY IN SECTION 16(d) HEREOF,
THE EQUIPMENT AND THE RIGHTS, TITLE AND INTEREST BEING CONVEYED
HEREIN WITH RESPECT THERETO, ARE BEING CONVEYED AND DELIVERED TO
LESSEE "AS IS" AND "WHERE IS" WITHOUT ANY RECOURSE TO LESSOR, AND
LESSOR HAS NOT MADE, AND HEREBY DISCLAIMS, LIABILITY FOR, AND
LESSEE HEREBY WAIVES ALL RIGHTS AGAINST LESSOR RELATING TO, ANY
AND ALL WARRANTIES, GUARANTIES, REPRESENTATIONS OR OBLIGATIONS OF
ANY KIND WITH RESPECT THERETO, EITHER EXPRESS OR IMPLIED, ARISING
BY APPLICABLE LAW OR OTHERWISE, INCLUDING (A) ANY EXPRESS OR
IMPLIED WARRANTIES, GUARANTIES, REPRESENTATIONS OR OBLIGATIONS OF
OR ARISING FROM OR IN (1) MERCHANTABILITY OR FITNESS FOR
PARTICULAR USE OR PURPOSE, (2) COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE OR (3) TORT (WHETHER OR NOT ARISING
FROM THE ACTUAL IMPLIED OR IMPUTED NEGLIGENCE OF LESSOR OR STRICT
LIABILITY) OR UNDER THE CODE OR OTHER APPLICABLE LAW WITH RESPECT
TO THE EQUIPMENT, INCLUDING ITS TITLE OR FREEDOM FROM LIENS,
FREEDOM FROM TRADEMARK, PATENT OR COPYRIGHT INFRINGEMENT, LATENT
DEFECTS (WHETHER OR NOT DISCOVERABLE), CONDITION, MANUFACTURE,
DESIGN, SERVICING OR COMPLIANCE WITH APPLICABLE LAW AND (B) ALL
OBLIGATIONS AND LIABILITIES OF LESSOR, AND RIGHTS AND REMEDIES OF
LESSEE, HOWSOEVER ARISING UNDER ANY APPLICABLE LAW WITH RESPECT
TO THE MATTERS WAIVED AND DISCLAIMED, INCLUDING, FOR LOSS OF USE,
REVENUE OR PROFIT WITH RESPECT TO THE EQUIPMENT, OR ANY LIABILITY
OF LESSEE OR LESSOR TO ANY THIRD PARTY, OR ANY OTHER DIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (AS SUCH TERMS ARE USED IN
SECTION 2719(3) OF THE CODE, OR OTHER APPLICABLE LAW) EXCEPT TO
THE EXTENT THE WAIVER OF SAME IS PROHIBITED BY APPLICABLE LAW;
all such risks, as between Lessor and Lessee, are to be born by
Lessee; and Lessor's agreement to enter into this Lease and any
Equipment Schedule is in reliance upon the freedom from and the
complete negation of liability or responsibility for the matters
waived and disclaimed herein. Lessee agrees that the only
representations, warranties, guaranties or indemnities made with
respect to the Equipment are those made by the Supplier thereof;
and, provided that no Default or default has then occurred and is
continuing under the pertinent Equipment Schedule, Lessor (a)
shall cooperate fully with Lessee with respect to the resolution
of such claims, in good faith and by appropriate proceedings at
Lessee's expense, (b) hereby assigns to Lessee, for and during
the term of this Lease, any applicable warranties, indemnities or
other similar rights under any Supply Contracts (excluding any
refunds or other similar payments reflecting a decrease in the
value of any such Equipment, which amount shall during the
existence of any default or Default be received by and paid to
Lessor, for application to Lessee's obligations under the
Equipment Schedule relating thereto) applicable to any Equipment,
and (c) hereby authorizes Lessee to obtain all services,
warranties or (except as provided in (b) above) amounts from the
Supplier of such Equipment to be used to repair such Equipment
(and such amounts shall be used by Lessee to repair such
Equipment). Any such claim shall not affect in any manner the
unconditional obligation of Lessee to make rent payments
hereunder.
8. FEES AND TAXES. (a) To the extent permitted by Law, Lessee
shall file any necessary report and return for, shall pay
promptly when due, shall otherwise be liable to reimburse Lessor
(on an after-tax basis) for, and agrees to indemnify and hold
Lessor harmless from all Impositions.
(b) If any report, return or property listing, or any
Imposition is, by Law, required to be filed by, assessed or
billed to, or paid by, Lessor, Lessee will do all things required
to be done by Lessor (to the extent permitted by Law) in
connection therewith and is hereby authorized by Lessor to act on
behalf of Lessor in all respects, including, the contest or
protest, in good faith and by appropriate proceedings, of the
validity of any Imposition, or the amount thereof. Lessor agrees
fully to cooperate with Lessee in any such contest, and Lessee
agrees promptly to indemnify Lessor for all reasonable expenses
incurred by Lessor in the course of such cooperation. An
Imposition or Claim therefor shall be paid, subject to refund
proceedings, if failure to pay would adversely affect the title
or rights of Lessor in the Equipment or otherwise hereunder.
Provided that no Default or default has occurred and is then
continuing, if Lessor obtains a refund of any Imposition which
has been paid (by Lessee, or by Lessor and for which Lessor has
been fully reimbursed by Lessee), Lessor shall promptly pay to
Lessee the net amount of such refund actually received. Lessee
will cause all xxxxxxxx of such charges to Lessor to be made to
Lessor in care of Lessee and will, in preparing any report or
return required by Law, show the ownership of the Equipment in
Lessee, and shall send a copy of any such report or return to
Lessor. If Lessee fails to pay any such charges when due, except
any Imposition being contested in good faith and by appropriate
proceedings as above provided for a reasonable period of time,
Lessor at its option may do so, in which event the amount so paid
(including any penalty incurred as a result of Lessee's failure),
plus an Administrative Fee shall be paid by Lessee to Lessor with
the next installment of Basic Rent.
(c) The provisions of this Section 8 shall not apply to
any Imposition (i) imposed as a result of any voluntary transfer
or disposition by Lessor of all or any portion of its interest in
the Equipment pursuant to Section 15 hereof; (ii) that Lessee is
contesting in good faith, by appropriate proceedings and is
otherwise permitted pursuant to the provisions of this Lease
until the conclusion of such contest; except, that Lessee's right
to contest any Imposition and thereby avoid its obligation to pay
any such Imposition is conditioned upon the existence of such
Imposition during any such contest not causing any material
danger of the sale, forfeiture or loss of the Equipment; or (iii)
imposed on Lessor that is based on, or measured by gross or net
income taxes (including, capital gains taxes, minimum taxes,
income taxes collected by withholding and taxes on tax preference
items), except for Lessee's obligation to pay indemnities and
reimbursements as an "after-tax basis," and as otherwise
expressly provided herein.
9. INTENT, TITLE AND LIENS. (a) The parties intend and agree
that the Equipment shall remain personal property, and that
Lessor's title thereto or the priority of such title not be
impaired, notwithstanding the manner in which it may be affixed
to any real or personal property. Lessee shall obtain and
deliver to Lessor (to be recorded at Lessee's expense), from any
person having an interest in any real or personal property to or
upon which the Equipment is to be attached or located, as the
case may be, waivers of any Lien or which such person might have
or hereafter obtain or claim with respect to the Equipment.
(b) During the Term of each Equipment Schedule, and until
Lessee either purchases such Equipment upon the expiration of the
Initial Term, or upon the expiration of any Renewal Term with
respect thereto, and upon Lessee's full performance of all its
obligations under or relating to such Equipment Schedule, Lessor
shall retain title to such Equipment; provided, that, Lessee and
Lessor acknowledge that transactions documented hereunder and
under each Equipment Schedule shall constitute a "Lease intended
as security," or "security interest," as the case may be, under
Applicable Law (including under Section 1201(37) of the Code).
In furtherance thereof, (i) in order to secure the prompt payment
and performance as and when due to all of Lessee's obligations
(both now existing and hereafter arising) under each such
Equipment Schedule and all of the other Lease Documents, Lessee
shall be deemed to have granted, and it hereby grants to Lessor a
first priority security interest in and assigns and conveys the
following (whether now existing or hereafter created): (A) the
Equipment leased pursuant to such Equipment Schedule, (B) all
subleases thereof (including all of Lessee's rights, but none of
its obligations thereunder, including all amounts payable
thereunder) all accounts, contract rights and general intangibles
(including all licenses, patents, copyrights, maskworks and trade
secrets) relating to the Equipment, and (C) all replacements and
Proceeds (cash and non-cash), including the proceeds of all
insurance policies, of the property and rights described in (A)
and (B), and (ii) Lessee agrees that with respect to the
Equipment, in addition to all 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 perfected secured party under the Code. Lessee may not
dispose of any of the Equipment except to the extent expressly
provided herein, notwithstanding the fact that proceeds
constitute a part of the Equipment.
(c) Lessee will not directly or indirectly create, incur,
assume or suffer to exist any Lien on or with respect to any of
the Equipment, title thereto or any interest therein, except
Permitted Liens. Lessee shall notify Lessor immediately upon
receipt of notice of any Lien affecting the Equipment in whole or
in part, and defend Lessor's title therein and the first priority
thereof against all persons holding or claiming to hold a Lien;
and any Claims suffered by Lessor as a result thereof shall be
covered by the indemnity in Section 13 hereof.
`` (d) Owner for Federal Tax Purposes. It is hereby agreed
between Lessee and Lessor that, for Federal income tax purposes
(i) the Lease is, and will be consistently treated as, a finance
lease rather than a true lease; (ii) Lessee will be the owner of
the Equipment to be delivered under this Lease; (iii) Lessee will
not claim any rental deduction for amounts paid to Lessor under
the Lease; (iv) Lessor will not claim any cost recovery or
depreciation deductions with respect to the Equipment delivered
under this Lease; (v) neither Lessor nor Lessee will at any time
take any action, directly or in directly, or file any returns or
other documents inconsistent with the foregoing; and (vi) Lessor
and Lessee will file such returns, take such actions and execute
such documents as may be reasonable and necessary to facilitate
accomplishment of the intent expressed in subparagraphs (i)
through (iv) of this Section 9(d).
10. INSURANCE. (a) Lessee shall obtain and maintain all-
risk insurance coverages with respect to the Equipment insuring
against, among other things: casualty coverage, including, loss
or damage to the Equipment due to fire and the risks normally
included in extended coverage, malicious mischief and vandalism,
for not less than the greater of the Equipment's full replacement
value or the Stipulated Loss Value; and public liability coverage
including, both personal injury and property damage, with a
combined single limit per occurrence of not less than the amount
specified in each Equipment Schedule, with no deductible. All
such insurance shall be in form and amount and with companies
reasonably satisfactory to Lessor. All insurance for loss or
damage shall provide that losses, if any, shall be payable to
Lessor as sole loss payee and Lessee shall utilize its best
efforts to have all checks relating to any such losses delivered
promptly to Lessor. Lessor shall be named as an additional
insured with respect to all such liability insurance. Lessee
shall pay the premiums therefor and deliver to Lessor evidence
satisfactory to Lessor of such insurance coverage. Lessee shall
cause to be provided to Lessor, not less than fifteen (15) days
prior to the scheduled expiration or lapse of such insurance
coverage, evidence satisfactory to Lessor of renewal or
replacement coverage. Each insurer shall agree, by endorsement
upon the policy or policies issued by it or by independent
instrument furnished to Lessor, that (i) no cancellation, lapse,
expiration or adverse change reducing the coverage thereof shall
be effective unless Lessor has been given thirty (30) days' prior
written notice thereof; (ii) insurance as to the interest of any
named additional insured or loss payee other than Lessee shall
not be invalidated by any actions, inactions, breach of warranty,
declaration or condition or negligence of Lessee or any person
other than such additional insured with respect to such policy
or policies; (iii) such insurance is primary with respect to any
other insurance carried by or available to Lessor; (iv) the
insurer waives any right of subrogation and any setoff,
counterclaim, or other deduction, whether by attachment or
otherwise, against Lessor; and (v) with respect to the liability
coverage, all of the provisions of such coverage, except the
limits of liability, shall operate in the same manner as if there
were a separate policy with and covering Lessee and Lessor. The
proceeds of such insurance payable as a result of loss of or
damage to the Equipment shall be applied as required by the
provisions of Section 11 hereof.
(b) With respect to Lessee's agreement to obtain and
maintain the casualty and liability insurance coverage for each
item of Equipment required in clause (a) above, Lessee shall
undertake and be responsible for the foregoing in exchange for a
credit to Lessee's rental obligations the amount of which has
been calculated and agreed to by both Lessee and Lessor as fair
and complete consideration for such undertaking and
responsibility as it may now and hereafter exist (including the
payment by Lessor of all premiums, costs and expenses relating
thereto), and accounted for in the amount of Basic Rent for such
item of Equipment by its execution and delivery of the Equipment
Schedule relating thereto. In furtherance of the foregoing,
Lessee acknowledges and agrees that (A) the credit provided for
in the preceding sentence shall fully discharge Lessor for all
purposes from so obtaining or maintaining any such insurance
coverage (to the extent Lessor would be deemed to have had any
responsibility therefor) and (B) it shall also undertake, be
responsible for and otherwise fully perform and comply with all
of the obligations provided for herein that are not related to
the obtaining and maintaining of such insurance coverage, and
that it shall not be entitled to any credit or other
compensation, nor shall Lessor have any responsibility to Lessee
or any other person, with respect to such obligations or any
other obligations not expressly assumed by it hereunder.
11. LOSS AND DAMAGE. (a) Lessee assumes the risk of
direct and consequential loss and damage to the Equipment from
all causes. Except as provided in this Section 11 for discharge
upon payment of Stipulated Loss Value, no loss or damage to the
Equipment or any part thereof shall release or impair any
obligations of Lessee under this Lease. Without limiting
Sections 5, 7, 8, 13 or any other provision hereof, Lessee agrees
that Lessor shall not incur any liability to Lessee for any loss
of business, loss of profits, expenses, or any other Claims
resulting to Lessee by reason of any failure of or delay in
delivery or any delay caused by any non-performance, defective
performance, or breakdown of the Equipment, nor shall Lessor at
any time be responsible for person injury or the loss or
destruction of any other property resulting from the Equipment.
In the event of loss or damage to any item of Equipment which
does not constitute a Total Loss, Lessee shall, at its sole cost
and expense, promptly repair and restore such item of Equipment
to the condition required by this Lease. Provided that no
Default or default has occurred and is then continuing, upon
receipt of evidence reasonably satisfactory to Lessor of
completion of such repairs, Lessor will apply any net insurance
proceeds received by Lessor on account of such loss to the cost
of repairs. Upon the occurrence of a Total Loss during the Term
of this Lease, Lessee shall give prompt notice thereof to Lessor.
On the next date for the payment of Basic Rent, Lessee shall pay
to Lessor the 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 and any other sums due hereunder with
respect to that Equipment (less any net insurance proceeds or net
condemnation award actually paid to Lessor to compensate it for
such Total Loss). Upon Lessor's receipt of such payment in good
collected indefeasible funds with respect to an Equipment
Schedule, such Equipment Schedule and the obligation to make
future payments of Basic Rent thereunder shall terminate solely
with respect to the Equipment or items thereof so paid for and
(unless any insurer shall otherwise demand) Lessor shall be
deemed to have conveyed all of its right, title and interest
therein to Lessee "AS IS, WHERE IS" and otherwise subject to
Section 7 hereof. Stipulated Loss Value shall be determined as
of the next date of which a payment of Basic Rent is or would be
due after a Total Loss or other termination of the subject
Equipment Schedule, after payment of any Basic Rent due on such
date, and the applicable percentage factor shall be that which is
set forth on the SLV Schedule with respect to such Basic Rent
payment.
(b) Notwithstanding the foregoing or any other provision
hereof to the contrary, in the event any item(s) of Equipment
suffers a Total Loss and the insurance carrier providing coverage
obtained by Lessee against such Total Loss, has as a result of
such Total Loss, agreed in writing to pay to Lessor as the sole
loss payee proceeds of such coverage in an amount equal to the
Stipulated Loss Value (determined as of the Basic Rent payment
date next preceding such Total Loss, but otherwise in accordance
with the preceding clause (b)), Lessee's obligation to pay future
installments of Basic Rent for such item(s) of Equipment
suffering a Total Loss shall cease as of the Basic Rent payment
date preceding the Total Loss thereof, and Lessee shall thereupon
be relieved of its obligation to pay the Stipulated Loss Value
thereof; provided, that (i) Lessee has given prompt written
notice of such Total Loss to Lessor and the appropriate
insurer(s) (which notice shall include Lessee's written election
that it intends that this clause (b) shall apply to such Total
Loss); (ii) no default or Default occurs prior to Lessor's
receipt of all amounts due from Lessee and such insurer pursuant
hereto in good collected indefeasible funds; (iii) such insurer
neither (A) repudiates its obligation to the amount required
above or fails to pay such amount to Lessor in good collected
indefeasible funds within 90 days after the date of the Total
Loss, nor (B) suffers an event of the type described in Section
14(a)(iv); and (iv) Lessee takes all actions as shall be
requested by Lessor with respect to the insurance coverage, or
otherwise necessary to facilitate the payment of the insurance
proceeds required above. Upon the failure of any of the
conditions set forth in the proviso in the preceding sentence,
Lessee shall immediately be liable to an pay to Lessor the full
amounts that would otherwise have been due pursuant to paragraph
(a) of this Section 11. To the extent Lessee's obligation to pay
the Stipulated Loss Value of any item of Equipment is satisfied
by Lessor's receipt of insurance proceeds as provided above, and
not by funds in such amount paid by Lessee in the manner required
herein, Lessor shall have no obligation to convey such item of
Equipment to Lease.
12. REDELIVERY. (a) In the event Lessor exercises its
remedies under Section 14(c)(2) hereof, Lessee shall, at its own
expense, return the Equipment to Lessor within the period
designated by Lessor, in a condition that satisfies all of the
requirements of this Lease (including Section 6 hereof), and free
and clear of all Liens except Liens resulting from claims against
Lessor not relating to the ownership or operation of such
Equipment, by delivery to such place within the Continental
United States as Lessor shall specify. In addition to Lessor's
other rights and remedies hereunder, if repairs are necessary to
place the Equipment in the condition required in this Section,
Lessee shall be liable for and pay to Lessor the full amount of
the costs and expenses incurred and/or paid by Lessor to
accomplish such repairs.
13. INDEMNITY. Lessee assumes and agrees to indemnify,
defend and keep harmless, even if such Claims are groundless,
false or fraudulent, Lessor (which for the purposes of this
Section 13 shall also include Ally Capital Corporation and its
affiliates ("Ally") and any assignee of Lessor's rights,
obligations, title or interest under any Equipment Schedule
notwithstanding any assignment made by Ally of its interests
herein), its agents and employees, from and against any and all
Claims (other than, with respect to any such indemnitee, such as
may directly and proximately result from the gross negligence or
willful misconduct of such indemnitee; but Lessee does agree to
so indemnify each such indemnitee against its own negligence), by
paying (on an after-tax-basis, if to Lessor) or otherwise
discharging same, when and as such Claims shall become due,
including any Claims arising on account of (a) this Lease, any
Equipment Schedule, or any other Lease Documents, or (b) the
Equipment, or any part thereof, including the ordering,
acquisition, delivery, installation or rejection of the
Equipment, the possession, maintenance, use, condition, or
ownership or operation of any item of Equipment, and by
whomsoever owned, used or operated, during the term of this Lease
or any Equipment 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, removal, return, surrender, sale or other
disposition of the Equipment, or any item thereof, or for
whatever other reason whatsoever. Lessor shall give Lessee
prompt notice of any claim or liability hereby indemnified
against and Lessee Shall be entitled to control the defense
thereof, so long as Lessee is not in Default; provided, however,
that Lessor shall have the right to approve defense counsel
selected by Lessee.
14. DEFAULT; REMEDIES. (a) A default shall be deemed to
have occurred hereunder (solely with respect to the obligations
and other matters addressed in the second sentence of Section 1
hereof) and under an Equipment Schedule ("Default") if (i) Lessee
shall fail to make any payment of Rent or any other payment
hereunder, thereunder, or under any other Lease Document relating
thereto, within ten (10) days after the same shall have become
due; or (ii) Lessee shall fail to obtain and maintain the
insurance required pursuant thereto; (iii) (1) Lessee shall fail
to perform or observe any other covenant, condition or agreement
to be performed or observed by it thereunder or under any other
Lease Document relating thereto and such failure shall continue
unremedied for a period of thirty (30) days after the earlier of
(A) actual knowledge thereof by any officer of Lessee, or (B)
written notice thereof to Lessee by Lessor; or (2) Lessee
repudiates this Lease or such Equipment Schedule, or any part
hereof or thereof, or attempts to reject or revoke acceptance of
any Equipment to be leased or leased or revoke acceptance of any
Equipment to be leased or leased thereunder (except for any
rejection permitted by the last sentence of Section 5 of this
Lease), or (iv) Lessee shall (1) be generally not paying its
debts as they become due; or (2) take action for the purpose of
invoking the protection of any bankruptcy or insolvency law, or
any such law is invoked against or with respect to Lessee or its
property, and any such petition filed against Lessee is not
dismissed within sixty (60) days; or (v) Lessee shall make or
permit any unauthorized Lien against or assignment or transfer
thereof or of the Equipment or of any interest therein; (vi) any
certificate, statement, representation, warranty or audit
contained herein, therein or in any other Lease Document
heretofore or hereafter furnished with respect thereto by or on
behalf of Lessee proving to have been false in any material
respect at the time as of which the facts therein set forth were
stated or certified, or having omitted any substantial contingent
or unliquidated liability or claim against Lessee; or (vii)
Lessee shall be in default under any material obligation for the
payment of borrowed money, for the deferred purchase price of
property or for the payment of any rent under any lease
agreement, and the applicable grace period with respect thereto
shall have expired; or (viii) Lessee shall have terminated its
corporate existence, consolidated with, merged into, or conveyed
or leased substantially all of its assets as an entirety to any
person (such actions being referred to as an "Event") unless such
person is organized and existing under the laws of the united
States or any state, and delivers to Lessor an agreement
satisfactory in form and substance to Lessor, in its sole
discretion, containing an effective assumption by such person of
the sole responsibility for, and 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 (2) Lessor is satisfied as to the credit
worthiness of such person, and of its conformance to the other
standard criteria used by Lessor (or Lessor's affiliate or agent
to the extent such affiliate or agent and not Lessor, regularly
makes decisions on Lessor's behalf to participate or not
participate in the extension of lease financing to an equipment
user); or (iv) there occurs a default under any guaranty executed
in connection with such Equipment Schedule; or if there is an
anticipatory repudiation of Lessee's obligations hereunder, under
such Equipment Schedule or any other Lease Documents; or (x) if
Lessee is a privately held corporation and effective control of
Lessee's voting capital stock, issued and outstanding from time
to time, is not retained by the present stockholders (unless
Lessee shall have provided sixty (60) days' prior written notice
to Lessor of the proposed disposition of stock and Lessor shall
have consented thereto in writing); or (xi) if Lessee is a
publicly held corporation and, as a result of or in connection
with a material change in the ownership of Lessee's capital
stock, Lessee's debt to worth ratio then equals or exceeds twice
Lessee's debt to worth ratio as of the date of this Lease,
without the prior written consent of Lessor. As used herein,
"debt to worth ratio" shall mean the ratio of (1) Lessee's total
liabilities which, in accordance with GAAP, would be included in
the liability side of a balance sheet, to (2) Lessee's tangible
net worth including the sum of the par or stated value of all
outstanding capital stock, surplus and undivided profits, less
any amounts attributable to goodwill, patents, copyrights,
mailing lists, catalogs, trademarks, bond discount and
underwriting expenses, organization expense and other
intangibles, all as determined in accordance with GAAP.
(b) Although each Equipment Schedule executed pursuant to
this Lease shall constitute a separate instrument of lease, the
occurrence of a Default hereunder or with respect to any
Equipment Schedule shall, at the sole discretion of Lessor
constitute a Default with respect to any one or more of the
remaining Equipment Schedules. Notwithstanding anything set
forth herein, Lessor may, but shall not have any obligation to
(Lessee hereby waiving any rights it may have to require Lessor
to xxxxxxxx assets), (i) exercise all rights and remedies
hereunder independently with respect to each Equipment Schedule;
or (ii) apply any collateral and the proceeds thereof in which
Lessor holds a security interest with respect to a particular
Equipment Schedule to Lessee's obligations under such Equipment
Schedule or any one or al of the remaining Equipment Schedules.
(c) Upon a Default hereunder or under an Equipment
Schedule, as the case may be, Lessor may, at its option, declare
this Lease or such Equipment Schedule to be in default either
with or without written notice to Lessee (without election of
remedies), and at any time thereafter, may exercise any and all
rights and remedies of a secured party under the Code and in
addition thereto, at its sole discretion, do any one or more of
the following, all of which are authorized by Lessee with respect
to such Equipment Schedule as Lessor in its sole discretion shall
elect (to the extent permitted by, and subject to compliance
with, any mandatory requirements of Applicable Law then in
effect):
(i)(1) declare the following amounts to be immediately
due and payable, as liquidated damages and not as a penalty (and
in lieu of future rentals and other obligations then due
thereunder), and demand or xxx for, collect and apply, (A) all
Basic Rent due and unpaid as of the payment date immediately
preceding the Default, plus a pro-rated daily rent in the amount
set forth in Section 3(b)(i) of such equipment Schedule for the
period from such preceding payment date to the date of Lessor's
declaration (to the extent such daily rent is not accounted for
in clause (B), (B) by acceleration, the unpaid principal portion
of the aggregate Basic Rent payments due on or after such date
for the remaining period of the Initial Term and the Renewal Term
(whether or not Lessee has exercised its renewal option
thereunder) of such Equipment Schedule, which principal amount
shall be equal to the Stipulated Loss Value of the Equipment
leased thereunder (determined as of the Basic Rent date next
preceding the Default), (C) all Supplemental Rent and all other
sums due thereunder as of the date of such Default; and (D) all
such other charges permitted by Applicable Law that, when
received by Lessor together with all other payments due to Lessor
under this Section 15(c), shall make Lessor whole with respect to
all xxxxx, damages, losses and expenses suffered by Lessor as a
result of the Default and Lessee's failure to pay any Rent due as
a result thereof on the date required hereunder; provided, that
if a Default described in subsection (a)(iv) above, or if a
Default shall have occurred and be continuing at any time after
the occurrence of an event that is similar in nature to any of
the events described in subsection (a)(iv), then, without further
action or notice of any kind, the amounts described above shall
immediately become due and payable; and/or
(ii)(1) require Lessee to assemble any or all of the
Equipment at the location to which the Equipment was delivered or
the location to which such Equipment may have been moved by
Lessee or to return promptly, any or all of the Equipment to
Lessor at the location, and otherwise in accordance with all of
the terms of Section 12 hereof; and/or (2) take possession of and
render unusable by Lessee any or all of the Equipment, wherever
it may be located, without any court order or other process of
law (and if Lessor does seek the entry of such an order, Lessee
agrees to waive any notice or opportunity to be heard with
respect thereto) and without liability for any damages occasioned
by such taking of possession (any such taking of possession shall
constitute an automatic termination of this Lease as it applied
to those items taken without further notice, and such taking of
possession shall not prohibit Lessor from exercising its other
remedies hereunder); and/or (3) at Lessor's request, Lessee shall
promptly execute and deliver to Lessor such instruments of title
and other documents as Lessor may deem necessary or advisable to
enable Lessor or an agent or representative designated by Lessor,
at such time or times and place or places as Lessor may specify,
to obtain possession of all or any part of any rights in respect
of the Equipment the possession of which Lessor shall at the time
be entitled hereunder; and if Lessee shall for any reason fail to
execute and delivery such instruments and documents after such
demand by Lessor, Lessor may (A) obtain a judgment conferring on
Lessor the right to immediate possession and requiring Lessee to
deliver such instruments and documents to Lessor, to the entry of
which judgment Lessee hereby specifically consents, and (B)
pursue all or part of such Equipment wherever it may be found and
may enter any of the premises wherever such Equipment may be, or
is supposed to be, and search for such Equipment and take
possession of and remove same; and/or (4) have the right, but
without any obligation, to (A) use, operate, store, control,
insure or manage the Equipment and to carry on the business and
to exercise all rights and powers of Lessee relating to the
Equipment as Lessor shall deem best, including the right to
remove Liens, cure violations of Applicable Law, and enter into
any and all such agreements with respect thereto and with respect
to the maintenance, condition, operation, leasing, storage or
disposition of the Equipment or any part thereof as Lessor may
determine, (B) collect and receive all Proceeds, without
prejudice, however, to the right of Lessor under any provision of
this Lease to collect and receive all cash held by, or required
to be deposited with, Lessor hereunder, and (C) apply such
Proceeds, less costs of collection, in the manner provided in
clause (iii)(A) below, and/or
(iii) subject to any right of Lessee to redeem such
Equipment, sell or otherwise dispose of any or all of such
Equipment, whether or not in Lessor's possession, and without
instituting any legal proceedings whatsoever, in a commercially
reasonable manner at public or private sale with notice to Lessee
(the parties agreeing that ten (10) days' prior written notice
shall constitute adequate notice of any such sale); and such sale
or disposition may be (1) by public auction to the highest
bidder, in one lot as an entirety or in separate lots, either for
cash or on credit and on such terms as Lessor may determine, and
at any place (whether or not it be the location of the Equipment
or any part thereof) designated in such notice, and (2) be
adjourned from time to time by announcement at the time and place
appointed for such sale or sales, or for any such adjourned sale
or sales, without further published notice, and Lessor may bid
for and purchase, at its sole discretion, the Equipment or any
part thereof at such sale, it being understood, however, that
without the consent of Lessor, neither Lessee nor any affiliate
of Lessee or any other person acting directly or indirectly for
or on behalf of Lessee or any affiliate of Lessee may be the
purchaser at any such private sale (except for the full amount
due to Lessor under such Equipment Schedule, and under any other
Lease Documents collateralized thereby); and apply the proceeds
of such disposition and all Proceeds: (A) First, to the payment
of all costs of enforcement, including expenses of any sale,
lease or other disposition, expenses of any taking, attorneys'
fees, court costs and other expenses incurred or advances made by
Lessor in protection of its rights or otherwise pursuant to its
exercise of remedies and to provide adequate indemnity to Lessor
against all Impositions and Liens which by Law have, or may have,
priority over the rights of Lessor to the money so received by
Lessor; (B) Second, to the payment of Lessee's obligations under
the Equipment Schedule, and under any other Lease Documents
collateralized thereby; and (C) Third, to the payment of any
surplus thereafter remaining to Lessee or to whosoever may be
entitled thereto; and in the event that the proceeds and
Remaining Proceeds are insufficient to pay the amounts specified
in clauses (A) and (B) above, Lessor may collect such deficiency
from Lessee; and/or
(iv) terminate this Lease or such Equipment Schedule;
and/or
(v) proceed by appropriate court action, either at law
or in equity or in bankruptcy, whether for the specific
performance of any covenant or agreement herein contained or in
execution or aid of any power herein granted; or for foreclosure
hereunder, or for the appointment of a receiver or receivers for
the Equipment or any part thereof, for the recovery of a judgment
for the obligations thereby secured or for the enforcement of any
other proper, legal or equitable remedy available under
Applicable Law, including Section 9502 et seq. of the Code.
(d) Unless otherwise provided above, a termination pursuant
hereto shall occur only upon written notice by Lessor to Lessee
and, unless Lessor is terminating this Lease, only with respect
to the Equipment Schedule as Lessor specifically elects to
terminate in such notice. Except as to the Equipment Schedule
with respect to which there is a termination, the remaining
Equipment Schedules shall continue in full force and effect and
Lessee shall be and remain liable for the full performance of all
its obligations thereunder and under the remaining Lease
Documents. In addition, Lessee shall be liable for all
reasonable legal feels, all court costs and other expenses
incurred by reason of any Default or the exercise of Lessor's
remedies, including all expenses incurred in connection with the
return of any Equipment in accordance with the terms of Section
12 hereof or in placing such Equipment in the condition required
by Section 12. No right or remedy referred to in this Section 14
is intended to be exclusive, but each shall be cumulative and
shall be in addition to any other remedy referred to above or
otherwise available at law or in equity, and may be exercised
concurrently or separately from time to time. The failure of
Lessor to exercise the rights granted hereunder upon any default
or Default by Lessee shall not constitute a waiver of any such
right upon the continuation or reoccurrence of any such default
or Default. In no event shall the execution of an Equipment
Schedule constitute a waiver by Lessor any pre-existing default
or Default in the performance of the terms and conditions hereof.
15. ASSIGNMENT BY LESSOR AND LESSEE. WITHOUT THE PRIOR
WRITTEN CONSENT OF LESSOR (WHICH SHALL NOT UNREASONABLY BE
WITHHELD), LESSEE WILL NOT ASSIGN ANY OF ITS RIGHTS NOR DELEGATE
ANY OF ITS OBLIGATIONS HEREUNDER, SUBLET THE EQUIPMENT OR
OTHERWISE PERMIT THE EQUIPMENT TO BE OPERATED OR USED BY, OR TO
COME INTO OR REMAIN IN THE POSSESSION OF, ANY ONE BUT LESSEE.
ANY UNPERMITTED SUBLEASE OR ASSIGNMENT BY LESSEE SHALL BE VOID.
AB INITIO. No assignment or sublease, whether authorized in this
Section or in violation of the terms hereof, shall relieve Lessee
of its obligations under any Lease Document and Lessee shall
remain primarily liable under al of the Lease Documents. Lessor
may at any item assign any or al of its rights, obligations,
title and interest under any or all of the Lease documents, to
any other person, so long as notice is sent to Lessee. Such
notice shall provide the name and address of Lessor's assignee
and the percentage interest such assignee has acquired in the
Lease. Lessee shall acknowledge receipt of such notice in
writing. Upon receipt of such notice from Lessor, Lessee shall
enter in its books and records the name and address of the
assignee (and its percentage interest in the Lease) as the new
Lessor under the Lease. In the event Lessor expressly retains
the obligations of the lessor under any Lease Document in any
such assignment, Lessor's assignee shall not be obligated to
perform any duty, covenant or condition required to be performed
by the lessor under the terms o such Lease Document (other than
the covenant of quiet enjoyment specified in Section 16(d)
hereof); and no breach or default by Lessor hereunder or pursuant
to any other agreement between Lessor and Lessee, should there be
one, shall excuse performance by lessee of any provision hereof;
it being understood that in the event of a default or breach by
Lessor that Lessee shall pursue any rights on account thereof
solely against Lessor. Lessee agrees that any such assignment
shall not materially change Lessee's duties or obligations under
the Lease or any Equipment Schedule nor materially increase
Lessee's risks or burdens. Upon such assignment and except as
may otherwise by provided therein all references in this Lease,
or such other assigned Lease Document, to Lessor shall include
such assignee. Subject always to the foregoing, this Lease
inures to the benefit of, and is binding upon, the successors and
assigns of the parties hereto.
16. MISCELLANEOUS. (a) This Lease, each Equipment
Schedule, any other Lease Documents and any commitment letter
executed by the parties pertaining to such Equipment Schedules,
constitute the entire agreement between the parties with respect
to the subject matter hereof and thereof and shall not be amended
or altered in any manner except by a document in writing executed
by both parties. This Lease and all of the other Lease Documents
may be executed in any number of counterparts and by different
parties hereto or thereto on separate counterparts, each of
which, when so executed and delivered, shall be an original, but
all such counterparts shall together consist of but one and the
same instrument; provided, however, that to the extent that this
Lease or any Equipment Schedule constitutes chattel paper (as
such terms is defined in the Code) no security interest in this
Lease or such Equipment Schedule made be created thereby by the
transfer or possession of any counterpart hereof or thereof, as
the case may be, other than the originally executed counterpart
bearing the xxxx "Original" on the first page hereof or thereof,
which counterpart shall constitute the "Original" hereof or
thereof, as the case may be, for purposes of the Code.
(b) Any provision of this Lease or any other Lease
Document which 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.
Without limiting the generality of the foregoing, in the event
any court shall determine that any provision hereof was
unconscionable when made, such court is hereby authorized by
Lessor and Lessee to limit the application of such unconscionable
provision to the extent necessary to avoid any unconscionable
result.
(c) Each execution by Lessee of an Equipment Schedule
shall be deemed a reaffirmation and warranty that there shall
have been no material adverse change in the business or financial
condition of Lessee from the date of execution hereof. Except as
otherwise expressly provided herein, it is hereby agreed that (i)
all agreements, indemnities, representations and warranties
contained herein or in any other Lease Document shall survive,
and shall continue in effect following the execution and delivery
of this Lease and all such other Lease Documents; and (ii) with
respect to each Equipment Schedule, shall survive the termination
thereof to the extent necessary for their full and complete
performance.
(d) Subject to the terms and conditions hereof, neither
Lessor nor any person authorized by Lessor shall interfere with
Lessee's right to peaceably and quietly hold, possess and use the
Equipment during the term of the Equipment Schedule relating
thereto. Any action by Lessee against Lessor for any default by
Lessor under this Lease or any Equipment Schedule, shall be
commenced within one (1) year after any such cause of action
accrues.
(e) Lessee irrevocably appoints Lessor as Lessee's
attorney-in-fact (which power shall be deemed coupled with an
interest) to execute on Lessee's behalf and file al UCCs and
amendments Lessor deems advisable to establish, protect, perfect
or obtain priority for the security interest granted herein, to
execute, endorse and deliver any documents and checks or drafts
relating to or received in payment for any loss or damage under
the policies of insurance required by the provisions of Section
10 hereof, but only to the extent that the same relates to the
Equipment.
(f) LESSOR AND LESSEE HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO WHICH LESSEE AND/OR LESSOR MAYBE PARTIES
ARISING OUT OF OR IN ANYWAY PERTAINING TO THIS LEASE OR ANY OF
THE LEASE DOCUMENTS. IT IS HEREBY AGREED AND UNDERSTOOD THAT
THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS
AGAINST PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS
AGAINST PARTIES WHO ARE NOT PARTIES TO THIS LEASE OR SUCH OTHER
LEASE DOCUMENTS. THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY MADE BY THE PARTIES AND THE PARTIES HEREBY
ACKNOWLEDGE THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN
MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OR TRIAL BY JURY OR
IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. EACH OF LESSOR AND
LESSEE FURTHER ACKNOWLEDGE THAT IT HAS BEEN REPRESENTED IN THE
SIGNING OF THIS LEASE AND THE OTHER LEASE DOCUMENTS AND IN THE
MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF
THEIR OWN FREE WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL.
(g) All notices (excluding xxxxxxxx and communications in
the ordinary course of business) hereunder shall be in writing,
delivered personally or by overnight courier service, set 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 mailing.
(h) This Lease and al of the other Lease Documents shall
not be effective unless and until accepted by execution by an
officer of Lessor at the address, in the State of California, 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 OF CALIFORNIA (WITHOUT REGARD TO THE CONFLICT OF
LAWS PRINCIPLES OF SUCH 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 of
California, 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 its address hereinbelow set forth, or as
it may provide in writing from time to time, or as otherwise
provided under the laws of the State of California.
17. DEFINITIONS AND RULES OF CONSTRUCTION. (a) The
following terms, wen capitalized (if applicable) or otherwise
used as below, have the following meanings:
"Abatement Amount": with respect to any Abatement Period, an
amount equal to (i) any installment(s) of Basic Rent, and any
fraction thereof, accruing pursuant to the Equipment Schedule
covering the item of Equipment having suffered an Impairment of
Use, multiplied by (ii) a fraction having (x) a numerator equal
to the amount of Total Invoice Cost allocable to such item of
Equipment, and (y) a denominator equal to the Total Invoice Cost
of all of the items of Equipment then being leased to Lessee
under such Equipment Schedule.
"Abatement Period": with respect to any item of Equipment,
that period commencing upon the Impairment Date relating thereto,
and continuing until the earlier of (i) Lessor having either (x)
cured the Impairment of Use relating thereto, or (y) provided
Lessee with Replacement Equipment in substitution therefore, or
(ii) the expiration of the Term of such Equipment Schedule.
"Administrative Fee": with respect to each payment of Rent
that shall become due and payable hereunder or under or with
respect to any Equipment Schedule, an amount equal to five (5)
percent of such Rent payment; provided, that if such charge
exceeds the highest charges of such type permitted by Applicable
Law, then the Administrative Fee shall be the highest such
charges permitted by Applicable Law.
"Applicable Law": any applicable Law, including any Law that
may apply to Lessee, its properties and operations, the Equipment
or related property or the operation, modification, condition,
maintenance, ownership, leasing or use thereof (including any
product thereof), or any transaction contemplated hereunder or
under any other Lease Document, including any environmental law,
federal or state securities law, commercial law (pertaining to
the rights and obligations of sellers, purchasers, debtors,
secured parties, or to any other pertinent matter), zoning,
sanitation, siting or building law, energy, occupational safety
and health practices, or any other Law.
"Base Lease Commencement Date": for each Equipment Schedule,
as defined in Section 2 thereof.
"Basic Rent": the rental installments payable pursuant to
each Equipment Schedule for the Interim Term, the Basic Term and
the Renewal Term, in the amounts and on the dates set forth
therein.
"business day": any day, other than a Saturday, Sunday, or
legal holiday for commercial banks under the laws of the State of
the governing Law of this Lease.
"Claims": all claims, xxxxx, judgments, good faith
settlements entered into, 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 is responsible
for in the nature of interest, Liens, and costs (including
attorneys' fees and disbursements and any other legal or non-
legal expenses of investigation or defense of any Claim, whether
or not such Claim is ultimately defeated, or enforcing the
rights, remedies or indemnities provided for hereunder, or
otherwise available at law or equity to Lessor), of whatever kind
or nature, contingent or otherwise, matured or unmatured,
foreseeable or unforeseeable, by or against any person.
"Code" or "Uniform Commercial Code": the Uniform Commercial
Code as in effect in California or in any other applicable
jurisdiction; and any reference to an article or section thereof
shall mean the corresponding article or section (however termed)
of any such other applicable version of the Uniform Commercial
Code.
"default": except when inconsistent with the context of any
provision hereof, an event which, but for the lapse of time or
the giving of notice or both, would be a Default.
"Equipment": with respect to each Equipment Schedule, the
property described therein, together with all appliances, parts,
instruments, accessories, furnishings, which are from time to
time incorporated in the Equipment, or having been so
incorporated, are later removed therefrom, unless title thereto
is expressly released by Lessor, and all replacements of, and all
additions, improvements and accessions to any and all thereof,
and all books and records and general intangibles (including all
licenses, patents, copyrights and trade secrets) relating
thereto; and when used in the context of Lessor's title to the
Equipment (whether relating to the creation, grant, perfection,
release, priority, enforcement or application of process thereof)
shall also include all other property in which Lessor is granted
a security interest hereunder or from time to time under any
Equipment Schedule.
"Equipment Schedule": any Equipment Schedule to be executed
pursuant hereto.
"GAAP": generally accepted accounting principle, applied
consistently.
"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.
"Impairment Date": the date of the occurrence of any
Impairment of Use.
"Impairment Event": with respect to any item of Equipment,
Lessor's breach of its agreements in Section 16(d).
"Impairment of Use": Lessee is denied use or possession of
any item of Equipment to a material extent, as a direct and
primary result of an Impairment Event; provided, that such event
is certified to Lessor in writing by Lessee's responsible
officer, and verified to Lessor's satisfaction by Lessor's
independent investigation or such other evidence relating thereto
as Lessor may reasonably request.
"Imposition": with respect to each Equipment Schedule, any
title, recordation, documentary stamp and other fees, taxes,
assessments and all other charges or withholdings of any nature
(together with any penalties or fines thereof) arising at any
item upon or relating thereto or to the Equipment lease
thereunder, or the delivery, acquisition, ownership, use,
operation, leasing or other disposition of such Equipment or upon
the Rent payable thereunder, whether the same be assessed to
Lessor or Lessee.
"Initial Term": for each Equipment Schedule, the monthly
period specified in Section 2 thereof commencing on the Base
Lease Commencement Date.
"Interim Term": for each Equipment Schedule, the period from
the effective date thereof to the Base Lease Commencement Date.
"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.
"Lease": this Equipment Lease Agreement.
"Lease Documents": collectively, the Lease, the Equipment
Schedules, and all instruments, documents, certificates and
agreements delivered pursuant hereto.
"Lien": any mortgage, pledge, lease, sublease, security
interest, attachment, charge, encumbrance or right or claim of
others whatsoever (including any conditional sale or other
retention agreement).
"Permit": any action, approval, certificate of occupancy,
consent, waiver, exemption, variance, franchise, order, permit,
authorization, right or license, or other form of legally
required permission, of or from a Governmental Authority.
"Permitted Lien": (a) Lessor's and Lessee's respective
rights, titles and interest in the Equipment, (b) mechanics,
materialmen, laborers, employees or suppliers Liens and similar
Liens arising by operation of Law and incurred by Lessee in the
ordinary course of business for sums that are not yet delinquent
or are being contested in good faith by negotiations or by
appropriate proceedings which suspend the collection and
enforcement thereof (provided, that the existence of such Lien
while such negotiations or proceedings are pending does not
involve any substantial risk (in Lessor's discretion) of the
sale, forfeiture or loss of the Equipment or any therein, and for
which adequate reserves have been provided in accordance with
GAAP), and (c) Liens arising out of any judgments or awards
against Lessee which have been adequately bonded to protect
Lessor's interests or with respect to which a stay of execution
has been obtained pending an appeal or a proceeding for review.
"person": any individual, corporation, partnership, joint
venture, or other legal entity or a Governmental Authority,
whether related or unrelated to Lessee or Lessor.
"Proceeds": all tolls, rents, revenues, issues, income,
products, profits and other proceeds of the Equipment or any part
thereof.
"Purchase Documents": all documents, instruments, licenses
and agreements pertaining to the acquisition of any of the
rights, title and interests in the Equipment.
"Purchase Price": for each Equipment Schedule, the amount
specified as such therein.
"Renewal Term": for each Equipment Schedule, unless Lessee
elects to purchase the Equipment on the last day of the Initial
Term, the consecutive monthly period set forth therein.
"Rent": collectively, the Basic Rent and the Supplemental
Rent.
"Replacement Equipment": any item(s) of Equipment substituted
by Lessor for any item of Equipment suffering an Impairment of
Use, having the same value, utility and condition that the
replaced item of Equipment had on the date next preceding the
Impairment Date.
"Stipulated Loss Value": with respect to each Equipment
Schedule, the product of the Total Invoice Cost of the Equipment
leased thereunder, and the applicable percentage factors set
forth on the Schedule of Stipulated Loss Values attached hereto.
"Supplemental Rent": all amounts, liabilities and obligations
(other than Basic Rent) which Lessee assumes or agrees to pay to
Lessor or others hereunder, or under any other Lease Document,
with respect to an Equipment Schedule, including the Stipulated
Loss Value, the Purchase Price, all Administrative Fees and
payments constituting indemnities, reimbursements, expenses and
other charges payable pursuant to the terms thereof.
"Supplier": the person from whom Lessor is purchasing the
Equipment.
"Supply Contract": any written contract from the Supplier of
the Equipment, pursuant to which Lessor has purchased the
Equipment for lease to Lessee under an Equipment Schedule.
"Term": the period for which Equipment is leased under any
Equipment Schedule, including the Interim Term, the Initial Term
and, to the extent Lessee does not purchase the Equipment on the
last day of the Initial Term, the Renewal Term.
"title": when used in the context of Lessor's title to any
Equipment, such title retained by Lessor, which, after giving
effect to the provisions of this Lease, constitutes a first
priority security interest in such Equipment under Applicable
Law.
"Total Invoice Cost": with respect to each Equipment
Schedule, the amount specified as such thereon.
"Total Loss": any of (a) the actual or constructive total
loss of any item of the Equipment; or (b) the loss,
disappearance, theft or destruction of any item of the Equipment;
or (c) damage (including any contamination by hazardous
substances) to any item of the Equipment to such extent as shall
make repair thereof uneconomical, or shall render any item of the
Equipment permanently unfit for normal use, for any reason
whatsoever; or (d) the condemnation, confiscation, requisition,
seizure, forfeiture or other taking of title to or use of any
item of the Equipment, or any imposition of a Lien thereon by an
Governmental Authority in excess of $___; or (e) as a result of
any Law or other action taken by any Governmental Authority, the
use of the Equipment in the normal course of Lessee's business
shall have been prohibited (i) indefinitely or (ii) for a period
in excess of (1) 60 days, or (2) for a period that extends beyond
the then existing Term; all of the foregoing, to the extent
established to the reasonable satisfaction of Lessor.
"UCC": a Uniform Commercial Code financing statement.
(b) Any defined term used in the singular preceded by
"any" indicates any number of the members of the relevant class.
(i) "including shall mean containing, embracing or involving all
of the enumerated items, but not limited to such items unless
such term is followed by the words "and limited to," or similar
words; and (ii) use of the word "or" shall mean at lest one, but
not necessarily only one, or the alternatives enumerated. 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 a Law shall also mean such Law as amended,
superseded or replaced from time to time. Unless otherwise
expressly provided herein to the contrary, all actions that
Lessee takes or is required to take under this Lease or any other
Lease Document, shall be taken at Lessee's sole cost and expense,
and all such costs and expenses shall constitute Claims and be
covered by Section 14 hereof. To the extent Lessor is required
to give its consent to Lessee 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 (1) an impairment of Lessor's rights, title or
interests hereunder or under any Equipment Schedule or other
Lease Document, or to the Equipment, or (2) expose Lessor to any
Claims, or (ii) to the extent Lessee fails to provide promptly to
Lessor any filings, certificates, opinions or indemnities
specified by Lessor to Lessee in writing.
(c) Lessor and Lessee agree that the definitions and rules
of construction herein shall constitute an integral part of this
Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Lease
to be duly executed as of the day and year first above set forth.
ALLY CAPITAL CORPORATION ELECTROSOURCE, INC.
/s/ /s/
Name: Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxx
Title: Vice President-Production Title: Vice
President, Finance, Law & Contracts
0000 Xxxxxxxxx Xxx, Xxxxx 000 0000 X Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000 Xxxxxx, Xxxxx 00000-0000
