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EXHIBIT 10.16
MASTER LEASE OF PERSONAL PROPERTY NO. 3769
LESSEE: AudioNet, Inc. LESSOR: Charter Financial, Inc.
0000 Xxxxxx Xxxxxx 000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000 Xxx Xxxx, XX 00000
In consideration of the mutual covenants set forth herein, the above named
Lessee and the above named Lessor hereby enter into this Master Lease of
Personal Property and agree to the terms and conditions set forth herein. Each
Rental Schedule executed by Lessee and Lessor from time to time pursuant to this
Master Lease of Personal Property shall be deemed a separate lease incorporating
all of the terms and conditions of this Master Lease of Personal Property.
References in this Master Lease of Personal Property to "Lease", "hereunder" and
"herein" shall mean a Rental Schedule which incorporates this Master Lease of
Personal Property.
1. DEFINITIONS. The following terms shall have the following
meanings for all purposes of this lease:
(a) "Acquisition Cost" of Equipment is an amount equal to the
sum of the vendor's delivered price, dealer's delivery and handling charges, the
cost of any original equipment which may be added, excise tax on the Equipment,
and sales and use taxes, expenses of installation and freight, and other
expenses required to effect delivery of the Equipment to Lessee.
(b) "Term" shall mean the number of months set forth in a
Rental Schedule.
(c) "Equipment" means the personal property described in an
equipment schedule attached to a Rental Schedule together with all
substitutions, replacements, parts, repairs, improvements, additions and
accessories thereto.
(d) "Lease Commencement Date" with respect to Equipment under
a Rental Schedule means the date of the commencement of the applicable Rental
Schedule as set forth in such Rental Schedule.
(e) "Rental Schedule" means a schedule to be executed by
Lessor and Lessee, substantially in the form attached hereto and labeled "Rental
Schedule" including a schedule describing the Equipment which is subject thereto
and setting forth its location, Acquisition Cost, the amount of rent payable by
Lessee with respect thereto, the lease term thereof, the Lease Commencement Date
with respect thereto, and such other details as Lessor and Lessee may desire.
2. AGREEMENT FOR LEASE OF EQUIPMENT. Lessor shall lease to Lessee
and Lessee shall lease from Lessor Equipment in the manner and upon the terms
and conditions specified in this Lease, provided that the Equipment can be
obtained. Lessee shall evidence its agreement to lease particular Equipment
hereunder by executing and delivering a Rental Schedule for such Equipment to
Lessor. Lessee's execution of such Rental Schedule shall obligate Lessee to
lease the Equipment described therein from Lessor upon the acceptance of such
Equipment by Lessee for lease hereunder. Anything to the contrary
notwithstanding, Lessor shall have no obligation to accept any Rental Schedule
from Lessee or to acquire and lease to Lessee the Equipment described therein if
(i) such Equipment is not acceptable to Lessor; or (ii) Lessee has not submitted
to Lessor by December 31, 1998 a Rental Schedule covering such Equipment; or
(iii) such Equipment has not been accepted by Lessee for lease hereunder by
December 31, 1998 or Lessor has determined the scheduled dates for delivery and
installation of such Equipment makes acceptance of the Equipment by such date
impossible; or (iv) an Event of Default (or any other event which, after a lapse
of time, or notice, or both, would become an Event of Default) has occurred and
is continuing hereunder; or (v) Lessor
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determines that Lessee's financial condition or business operation (or that of
any Guarantor,) has suffered any material adverse change from the condition
reported in, or in conjunction with, any credit application. Notwithstanding any
trade-in or down payment by Lessee or on its behalf with respect to the
Equipment, Lessee shall have no right, title or interest therein or thereto
except as to the use thereof subject to the terms and/or conditions of this
Lease. In the event that for any reason specified or referred to in clauses (i)
through (v) of this Section 2, Lessor submits a written request to a vendor for
the cancellation, in whole or in part, of any purchase order or other purchase
commitment issued by Lessor to such vendor for the Equipment described on a
Rental Schedule, (a) Lessee shall promptly pay Lessor the full amount of any
restocking, cancellation and other charge or penalty which such vendor may
require Lessor to pay for such cancellation, and (b) Lessee shall promptly pay
Lessor an amount equal to the total Acquisition Cost of all Equipment as to
which such vendor is unwilling, in Lessor's sole judgment, to permit such
cancellation on terms acceptable to Lessor and (c) upon Lessor's receipt of such
payment from Lessee, Lessor shall convey to Lessee whatever right, title and
interest Lessor may have in and to such Equipment on an as-is, where-is basis
without representations or warranties of any kind whatsoever.
3. LEASE TERM. The lease term of Equipment under a Rental
Schedule shall be the Term and shall commence on the Lease Commencement Date set
forth on such Rental Schedule.
4. RENTAL. Lessee agrees to pay to Lessor or its assignee during
the term applicable to any Equipment the rent payments shown on each Rental
Schedule with the first rent payment due on the Lease Commencement Date shown
therein. Lessee hereby authorizes Lessor to insert the Lease Commencement Date
in the space provided therein. The rent payments shown therein together with any
and all additional payments to be made by Lessee to Lessor under this Lease are
hereinafter referred to as "Rental". All Rental shall be paid without notice or
demand and without abatement, deduction or set off of any amount whatsoever, at
such address and to such person or persons as Lessor or its assignee shall
direct. Any nonpayment of Rental when due shall result in the obligation on the
part of Lessee promptly to pay also an amount equal to five per cent (5%) (or
the maximum rate permitted by law, whichever is less) of the amounts overdue.
5. DISCLAIMER OF WARRANTIES; LESSEE'S OBLIGATIONS. LESSEE
ACKNOWLEDGES THAT: LESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT NOR THE
MANUFACTURER=S AGENT NOR A DEALER THEREIN; THE EQUIPMENT IS OF A SIZE, DESIGN,
CAPACITY, DESCRIPTION AND MANUFACTURE SELECTED BY THE LESSEE; LESSEE HAS
SELECTED THE EQUIPMENT PRIOR TO HAVING REQUESTED LESSOR TO PURCHASE THE SAME FOR
LEASING TO LESSEE; LESSEE IS SATISFIED THAT THE EQUIPMENT IS SUITABLE AND FIT
FOR ITS PURPOSES; AND LESSOR HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY OR
REPRESENTATION WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS,
CONDITION, MERCHANTABILITY, DESIGN OR OPERATION OF THE EQUIPMENT, ITS FITNESS
FOR ANY PARTICULAR PURPOSE, THE QUALITY OR CAPACITY OF THE MATERIALS IN THE
EQUIPMENT OR WORKMANSHIP OF THE EQUIPMENT, LESSOR=S TITLE TO THE EQUIPMENT, NOR
ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER. LESSOR SHALL NOT BE LIABLE TO
LESSEE FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED, DIRECTLY
OR INDIRECTLY, BY ANY EQUIPMENT LEASED HEREUNDER OR THE USE OR MAINTENANCE
THEREOF OR THE FAILURE OR OPERATION THEREOF, OR THE REPAIR, SERVICE OR
ADJUSTMENT THEREOF, OR BY ANY DELAY OR FAILURE TO PROVIDE ANY SUCH MAINTENANCE,
REPAIRS, SERVICE OR ADJUSTMENT, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE
THEREOF OR FOR ANY LOSS OF BUSINESS HOWSOEVER CAUSED. LESSOR SHALL NOT BE LIABLE
FOR DAMAGES OF ANY KIND INCLUDING ANY CONSEQUENTIAL DAMAGES AS THAT TERM IS USED
IN THE UNIFORM COMMERCIAL CODE OR OTHERWISE. No defect or unfitness of the
Equipment, nor any failure on the part of the manufacturer or the shipper of the
Equipment to deliver the Equipment or any part thereof to Lessee, shall relieve
Lessee of the obligation to pay Rental or any other obligation under this Lease.
Lessor shall have no obligation in respect of the Equipment and shall have no
obligation to install, erect, test, adjust or service the Equipment. Lessor
agrees, so long as there shall
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not have occurred or be continuing any Event of Default hereunder or event which
with lapse of time or notice, or both, might become an Event of Default
hereunder, that Lessor will permit Lessee to enforce in Lessee's own name and at
Lessee's sole expense any supplier's or manufacturer's warranty or agreement in
respect of the Equipment to the extent that such warranty or agreement is
assignable. The parties agree that this Lease is a "Finance Lease" as defined in
Article 2A of the Uniform Commercial Code. Lessee acknowledges either (a) that
Lessee has reviewed and approved the purchase order, supply contract or purchase
agreement ("Supply Contract") covering the Equipment purchased from the vendor
or supplier thereof for lease to Lessee or (b) that Lessor has informed or
advised Lessee in writing, either previously or by this Lease, of the following:
(i) the identity of the supplier/vendor; (ii) that the Lessee may have rights
under the Supply contract; and (iii) that the Lessee may contact the
supplier/vendor for a description of any such rights Lessee may have under the
Supply Contract. In the event that a court of competent jurisdiction shall
determine that this Lease is a "lease intended as security" then Lessee hereby
grants a security interest in and to the Equipment as a security for all
Lessee's obligations to Lessor of every kind and nature.
6. ASSIGNMENT BY LESSOR. This Lease, any Rental Schedule
hereunder and Lessor's interest in the Equipment shall be assignable by Lessor
and by its assigns without notice to or the consent of Lessee, but Lessee shall
not be obligated to any assignee of Lessor except upon written notice of such
assignment from Lessor or such assignee. The obligation of Lessee to pay Rental
to such assignee and perform all other obligations hereunder shall be absolute,
irrevocable, independent and unconditional and shall not be affected by any
circumstances whatsoever, and such payments shall be made without interruption,
deduction, offset or abatement notwithstanding any event or circumstance
whatsoever, including, without limitation the late delivery, non-delivery,
destruction or damage of or to the Equipment, the deprivation or limitation of
the use of the Equipment, the bankruptcy or insolvency of Lessor or Lessee or
any disaffirmance of this Lease by or on behalf of Lessee, and notwithstanding
any defense, setoff, recoupment or counterclaim or any other right whatsoever,
whether by reason of breach of this Lease or otherwise which Lessee may now or
hereafter have against Lessor and whether any such event shall be by reason of
any act or omission of Lessor or otherwise; provided, however, that nothing
herein contained shall affect any right of Lessee to enforce against Lessor any
claim which Lessee may have against Lessor in any manner other than by
abatement, attachment, or recoupment of, interference with, or set-off,
counterclaim or defense against, the aforementioned payments. Lessee's
undertaking herein to pay the Rental to and to perform the other obligations of
Lessee hereunder for the benefit of an assignee of Lessor shall constitute a
direct, independent and unconditional obligation of Lessee to said assignee.
Lessee also acknowledges and agrees that any assignee of Lessor's interest in
this Lease shall have the right to exercise all rights, privileges and remedies
(either in its own name or in the name of Lessor) which by the terms of this
Lease are permitted to be exercised by Lessor. Lessee acknowledges that any
assignment or transfer by Lessor shall not materially change Lessee's duties or
obligations under this Lease nor materially increase the burdens or risks
imposed on Lessee. Lessee agrees that Lessor shall have the absolute right to
assign this Lease.
7. DAMAGE TO OR LOSS OF THE EQUIPMENT; REQUISITION. No loss or
damage to the Equipment or any part thereof shall affect any obligation of
Lessee under this Lease which shall continue in full force and effect. Lessee
shall advise Lessor in writing promptly of any item of Equipment lost or damaged
and of the circumstances and extent of such damage. If the Equipment under a
Rental Schedule is totally destroyed, irreparably damaged, lost, stolen or title
thereto shall be requisitioned or taken by any governmental authority under the
power of eminent domain or otherwise, Lessee shall, at the option of the Lessor,
replace the same with like equipment in good repair, condition and working order
and such replacement shall be deemed to be Equipment subject the terms hereof
and such Rental Schedule, or pay to Lessor the present value of all Rental due
and to become due under this Lease discounted at a rate equal to six percent
(6%), less the net amount of the recovery, if any, actually received by Lessor
from insurance or otherwise for such destruction, damage, loss, theft,
requisition or taking, and upon such payment, title to such Equipment shall pass
to Lessee and Lessee shall be subrogated to Lessor's rights with respect to such
casualty. Whenever the Equipment is destroyed or damaged and, in the sole
discretion of the Lessor, such destruction or damage can
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be repaired, Lessee shall, at its expense, promptly effect such repairs as
Lessor shall deem necessary for compliance with Section 8(a) below. Any proceeds
of insurance received by Lessor with respect to such reparable damage to the
Equipment shall, at the election of Lessor, be applied either to the repair of
the Equipment by payment by Lessor directly to the party completing the repairs,
or to the reimbursement of Lessee for the cost of such repairs; provided,
however, that Lessor shall have no obligation to make such payment or any part
thereof until receipt of such evidence as Lessor shall deem satisfactory that
such repairs have been completed and further provided that Lessor may apply such
proceeds to the payment of any Rental or other sum due or to become due
hereunder if at the time such proceeds are received by Lessor there shall have
occurred and be continuing any Event of Default hereunder or any event which
with lapse of time or notice, or both, would become an Event of Default. Lessee
shall when and as requested by Lessor, undertake, by litigation or otherwise, in
Lessee's name, the collection of any claim against any person for such
destruction, damage, loss, theft, requisition or taking, but Lessor shall not be
obligated to undertake, by litigation or otherwise, the collection of any claim
against any person for such destruction, damage, loss, theft, requisition or
taking.
8. AFFIRMATIVE COVENANTS OF LESSEE. Lessee shall (a) cause the
Equipment to be kept in good condition and use the Equipment only in the manner
for which it was designed and intended so as to subject it to only ordinary wear
and tear and cause to be made all needed and proper repairs, renewals, and
replacements thereto; (b) maintain at all times property damage, fire theft and
comprehensive insurance for the greater of the full replacement value or the
present value of all Rental due and to become due under this Lease discounted at
a rate equal to six percent (6%), with loss payable provisions in favor of
Lessor and any assignee of Lessor as their interests may appear, and maintain
general liability insurance in amounts satisfactory to Lessor naming Lessor and
any assignee of Lessor as insureds with all of said insurance and loss payable
provisions to be in form, substance and amount and written by companies approved
by Lessor, and deliver policies thereof, or duplicates thereof, to Lessor; (c)
pay or reimburse Lessor for any and all taxes, assessments and other
governmental charges of whatever kind or character, however designated (together
with any penalties, fines or interest thereon) levied or based upon or with
respect to the Equipment or the Rental or upon the manufacture, purchase,
ownership, delivery, leasing possession, use, storage, operation, maintenance,
repair, return or other disposition of the Equipment, or for titling or
registering the Equipment, or upon the income or other proceeds received with
respect to the Equipment or this Lease provided, however, that Lessee shall pay
taxes on or measured by the net income of Lessor and franchise taxes of Lessor
only to the extent that such net income taxes or franchise taxes are levied or
assessed in lieu of such other taxes, assessments or other governmental charges;
(d) pay all shipping and delivery charges and other expenses incurred in
connection with the Equipment and pay all lawful claims, whether for labor,
materials, supplies, rent or services, which might or could if unpaid become a
lien on the Equipment; (e) comply with all governmental laws, regulation,
requirements and rules, all manufacturer's instructions and warranty
requirements, and with the conditions and requirements of all policies of
insurance with respect to the Equipment and this Lease; (f) xxxx and identify
the Equipment with all information and in such manner as Lessor or its assigns
may request from time to time and replace promptly any such markings or
identification which are removed, defaced or destroyed; (g) at any and all times
during business hours, xxxxx Xxxxxx free access to enter upon the premises
wherein the Equipment shall be located or used and permit Lessor to inspect the
Equipment; (h) reimburse Lessor for all charges, costs and expenses (including
attorneys' fees), incurred by Lessor in defending or protecting its interest in
the Equipment, in the attempted enforcement or enforcement of the provisions of
this Lease or in the attempted collection or collection of any Rental under this
Lease; (i) indemnify and hold Lessor harmless from and against all claims,
losses, liabilities (including negligence, tort and strict liability), damages,
judgments, suits, and all legal proceedings, and any and all costs and expenses
in connection therewith (including attorneys' fees) arising out of or in any
manner connected with the manufacture, purchase, financing, ownership, delivery,
rejection, non-delivery, transportation, possession, use, storage, operation,
maintenance, repair, return or other disposition of the Equipment or with this
Lease, including without limitation, claims for injury to or death of persons
and for damage to property, and give Lessor prompt notice of any such claim or
liability; (j) except as otherwise expressly provided herein, upon the
expiration of the Term
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of a Rental Schedule, or upon sooner termination of a Rental Schedule as
provided for herein, at its own cost and expense, deliver possession of the
Equipment to Lessor in the condition in which it is required to be maintained by
Lessee hereunder, at a location within the United States designated by the
Lessor; (k) except as otherwise expressly provided herein, upon the expiration
of the Term of a Rental Schedule, or upon sooner termination of a Rental
Schedule as provided for herein, upon request of Lessor, provide suitable and
adequate storage space at the place where the Equipment is to be located
hereunder, and permit Lessor to store the Equipment in such storage space free
of charge for a period not to exceed ninety (90) days, during which period
Lessor will be allowed reasonable access thereto; and (l) maintain a system of
accounts established and administered in accordance with generally accepted
accounting principles and practices consistently applied; and within thirty (30)
days after the end of each fiscal quarter, deliver to Lessor a balance sheet as
at the end of such quarter and statement of operations for such quarter, and
within one hundred and twenty (120) days after the end of each fiscal year,
deliver to Lessor a balance sheet as at the end of such year and statement of
operations for such year, in each case prepared in accordance with generally
accepted accounting principles and practices consistently applied and certified
by Lessee's chief financial officer as fairly presenting the financial position
and results of operations of Lessee, and, in the case of year end financial
statements, certified, by an independent accounting firm acceptable to Lessor.
9. NEGATIVE COVENANTS OF LEASE. Lessee shall not (a) voluntarily
or involuntarily create, incur, assume or suffer to exist any mortgage, lien,
pledge or other encumbrance or attachment of any kind whatsoever upon, affecting
or with respect to the Equipment or this Lease or any of Lessee's interests
thereunder; (b) make any changes or alterations in or to the Equipment except as
necessary for compliance with Section 8(a) above; (c) permit the name of any
person, association or corporation other than the Lessor to be placed on the
Equipment as a designation that might be interpreted as a claim of ownership or
security interest; (d) part with possession or control of or suffer or allow to
pass out of its possession or control any item of the Equipment or change the
location of the Equipment or any part thereof from the address shown above; (e)
ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS
UNDER THIS LEASE OR ENTER INTO ANY SUBLEASE OF ALL OR ANY PART OF THE EQUIPMENT;
(f) change its name or address from that set forth above unless it shall have
given Lessor or its assigns no less than thirty (30) days' prior written notice
thereof; (g) sell any shares of its capital stock or transfer any ownership
interest in the Lessee to any person, persons, entity or entities (whether in
one single transaction or in multiple transactions) which results in a transfer
or a majority interest in the ownership and/or the control of the Lessee from
the person, persons, entity or entities who hold ownership and/or control of the
Lessee as of the date of this Lease; or (h) consolidate with or merge into or
with any other entity, or purchase or otherwise acquire all or substantially all
of the assets or stock or other ownership interest of any person or entity or
sell, transfer, lease or otherwise dispose of all or substantially all of
Lessee's assets to any person or entity.
10. USE OF EQUIPMENT; EQUIPMENT PERSONALTY. So long as no Event of
Default shall have occurred, Lessee shall be entitled to possession and use of
the Equipment for the applicable Term in its lawful business in accordance with
the provisions of this Lease. The Equipment is, and shall at all times be and
remain, personal property notwithstanding that the Equipment or any part thereof
may now be, or hereafter become, in any manner affixed or attached to, or
imbedded in, or permanently resting upon, real property or any building thereon,
or attached in any manner to real property by cement, plaster, nails, bolts,
screws, wires, pipes or otherwise. If requested by Lessor with respect to any
item of the Equipment, Lessee will obtain and deliver to Lessor waivers of
interest or liens in recordable form, satisfactory to Lessor, from all persons
claiming any interest in the real property on which such item of the Equipment
is installed or located.
11. EVENTS OF DEFAULT AND REMEDIES. If any one or more of the
following events ("Events of Default") shall occur; (a) Lessee shall fail to
make any payment hereunder, when due, whether for rent or otherwise; or (b) any
certificate, statement, representation, warranty or financial report heretofore
or hereafter furnished by or on behalf of Lessee or any guarantor of any of
Lessee's obligations hereunder proves to have been false in any material respect
at the time as of which the facts therein set forth were stated or certified or
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has omitted any material contingent or unliquidated liability or claim against
Lessee or any such guarantor; or (c) Lessee or any guarantor of Lessee's
obligations shall fail to perform or observe any covenant (including, without
limitation, the covenant to keep the Equipment free from any mortgage, lien,
pledge, encumbrance or attachment of any kind whatsoever), condition or
agreement to be performed or observed by it hereunder; or (d) Lessee or any
guarantor of any of Lessee's obligations hereunder shall be in breach of or in
default in the payment and performance of any obligation owing to Lessor whether
or not related to this Lease and howsoever arising, whether by operation of law
or otherwise, present or future, contracted for or acquired, and whether joint,
several, absolute, contingent, secured, unsecured, matured and unmatured; or (e)
Lessee or any guarantor of any of Lessee's obligations hereunder shall be in
breach of or in default in the payment or performance of any obligation owing to
any bank, lender, lessor or financial institution, howsoever arising, present or
future, contracted for or acquired, and whether joint, several, absolute,
contingent, secured, unsecured, matured or unmatured; (f) Lessee or any
guarantor of any of Lessee's obligations hereunder shall cease doing business as
a going concern, make an assignment for the benefit of creditors, admit its
inability to pay its debts as they become due, file a petition commencing a
voluntary case under any chapter of Title 11 of the United States Code entitled
"Bankruptcy" (the "Bankruptcy Code"), be adjudicated as insolvent, file a
petition seeking for itself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar arrangement under any present
or future statute, law rule or regulation or file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
consent to the filing of such a petition or acquiesce in the appointment of a
trustee, receiver or liquidator of it or of all or any part of its assets or
properties, or take any action looking to its dissolution or liquidation; (g) an
order for relief against Lessee or any guarantor of any of Lessee's obligations
hereunder shall have been entered under any chapter of the Bankruptcy Code or a
decree or order by a court having jurisdiction in the premises shall have been
entered approving as properly filed a petition seeking reorganization,
arrangement, readjustment, liquidation, dissolution or similar relief against
Lessee or any guarantor of any of Lessee's obligations hereunder under any
present or future statute, law, rule or regulation, or within thirty (30) days
after the appointment without Lessee's or such guarantor's consent or
acquiescence of any trustee, receiver or liquidator of it or such guarantor or
of all or any part of its or such guarantor's assets and properties, such an
appointment shall not be vacated, or an order, judgment, or decree shall be
entered against Lessee or such guarantor by a court of competent jurisdiction
and shall continue in effect for any period of ten (10) consecutive days without
a stay of execution or any execution or writ or process shall be issued under
any action or proceeding against Lessee whereby the Equipment or its use may be
taken or restrained; or (h) Lessee shall suffer an adverse material change in
its financial condition from the date hereof, and as a result thereof Lessor
deems itself or any of the Equipment to be insecure; then and in any such event,
Lessor may (but is not obligated to), at the sole discretion of Lessor, without
notice or demand, take any one or more of the following steps: (1) immediately
terminate Lessee's rights hereunder; (2) require Lessee, at its expense,
promptly to return all or any portion of the Equipment to the possession of the
Lessor at such place within the United States as Lessor may designate, with or
without process of law, directly or acting through agents, without liability to
Lessor, enter upon the premises of Lessee or other premises where all or any
portion of the Equipment may be and take immediate possession of all or any
portion of the Equipment, and thenceforth hold, possess, and enjoy the same free
from any right of the Lessee to the possession and use of the Equipment for any
purpose whatsoever in which event Lessee hereby expressly waives all further
rights to possession of the Equipment and all claims for injuries suffered
through or caused by any such repossession; or (3) xxx for and seek to recover
from Lessee all rent and other sums then past due pursuant to the terms and
provisions of this Lease; or (4) declare immediately due and payable and xxx for
and seek to recover, all payments of rent, whether or not accrued, and all other
amounts payable hereunder, provided, however, upon the occurrence of any of the
events specified in subparagraphs (f) and (g) above, all sums as specified in
this subparagraph (4) shall immediately be due and payable without notice to
Lessee (the date on which Lessor declares all rent and other amounts to be due
and payable is hereinafter referred to as the "Declaration Date"); or (5) sell
or re-lease any or all of the Equipment at a public or private sale on such
terms and notice as Lessor shall deem reasonable and recover from Lessee
damages, not as penalty, but herein liquidated for all purposes and in an amount
equal to the sum of (i) any accrued and unpaid rent as of the later of (A) the
date of default or (B) the
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date that Lessor has obtained possession of the Equipment (the "Computation
Date"); (ii) the present value of all future rent reserved in this Lease and
contracted to be paid over the unexpired term of this Lease as of the
Computation Date, discounted at a rate equal to six percent (6%); (iii) all
commercially reasonable costs and expenses incurred by Lessor in any
repossession, recovery, storage, repair, sale, re-lease or other disposition of
the Equipment including reasonable attorneys' fees and costs incurred in
connection with or otherwise resulting from the Lessee's default; and (iv) any
indemnity, if then determinable, plus interest at one and one-half percent
(1.5%) per month; LESS the amount received by Lessor upon such public or private
sale or re-lease of such items of Equipment, if any (with any excess of the
amount received from such sale or re-lease over and above the amounts set forth
in clauses (i) through (iv) to be paid to Lessee); or (6) with or without
terminating this Lease, recover from Lessee damages, not as a penalty, but
herein liquidated for all purposes in an amount equal to the sum of (i) any
accrued and unpaid rent as of the Declaration Date plus interest at the rate of
one and one-half percent (1.5%) per month; (ii) the present value of all future
rent reserved in this Lease and contracted to be paid over the unexpired term of
this Lease discounted at a rate equal to six percent (6%); (iii) all
commercially reasonable costs and expenses incurred by Lessor in any
repossession, recovery, storage, repair, sale, re-lease, or other disposition of
the Equipment including reasonable attorneys' fees and costs incurred in
connection therewith or otherwise resulting from the Lessee's default; and (iv)
any indemnity, if then determinable, plus interest at one and one-half percent
(1.5%) per month, and upon such payment, title to the Equipment shall pass to
Lessee; or (7) exercise any other right or remedy which may be available under
the Uniform Commercial Code or any other applicable law or proceed by
appropriate court action or actions, at law or in equity, either to enforce
performance by Lessee of the applicable covenants of this Lease or to recover
damages for the breach thereof or of any warranty or representation herein
contained, or in aid of the exercise of any power, right or remedy granted
herein. Lessee shall be liable for all costs and expenses, including reasonable
attorneys' fees and disbursements, incurred by reason of the occurrence of any
Event of Default or the exercise by Lessor of remedies with respect thereto. Any
personalty in or attached to the Equipment when repossessed may be held by
Lessor without any liability arising with respect thereto, and any and all
claims in connection with such personalty shall be deemed to have been waived
unless notice of such claim is made by certified or registered mail upon Lessor
within three business days after repossession. A termination of this Lease after
the occurrence of an Event of Default shall occur only upon notice by Lessor and
only as to such items of Equipment as Lessor specifically elects to terminate
and this Lease shall continue in full force and effect as to the remaining
items, if any. If this Lease is deemed at any time to be one intended as
security, Lessee agrees that the Equipment shall secure, in addition to the
indebtedness set forth herein, any other indebtedness at any time owing by
Lessee to Lessor.
12. LESSOR'S RIGHT TO PERFORM FOR LESSEE. If Lessee fails to
perform or comply with any of its agreements contained herein, Lessor may
perform or comply with such agreements and the amount of any payments and
expenses of Lessor incurred in connection with such performance or compliance,
together with interest thereon at the rate provided in Section 16 below, shall
be deemed Rental payable by Lessee upon demand.
13. FURTHER ASSURANCES. Lessee will cooperate with Lessor for the
purpose of protecting the interests of Lessor in the Equipment, this Lease and
the sums due under this Lease, including, without limitation the execution of
all Uniform Commercial Code financing statements requested by Lessor. Lessor and
any assignee of Lessor is authorized if permitted by applicable law to file one
or more Uniform Commercial Code financing statements disclosing any security
interest in the Equipment, this Lease and the sums due under this Lease without
the signature of Lessee or signed by Lessor or any assignee of Lessor as
attorney-in-fact for Lessee. Lessee will pay all costs of filing any financing,
continuation or termination statements with respect to this Lease including,
without limitation, any documentary stamp taxes relating thereto. Lessee will do
whatever may be necessary to have a statement of the interest of Lessor and any
assignee of Lessor in the Equipment noted on any certificate of title relating
to the Equipment and will deposit said certificate with Lessor or such assignee.
Lessee shall execute and deliver to Lessor upon request such other instruments
and assurances as Lessor deems necessary or advisable for the implementation,
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effectuation, confirmation or perfection of this Lease and any rights of Lessor
hereunder.
14. NON-WAIVER. No course of dealing between Lessor and Lessee or
any delay or omission on the part of Lessor in exercising any rights hereunder
shall operate as a waiver of any rights of Lessor. A waiver on any one occasion
shall not be construed as a bar to or waiver of any right or remedy on any
future occasion. No waiver or consent shall be binding upon Lessor unless it is
in writing and signed by Lessor. To the extent permitted by applicable law,
Lessee hereby waives the benefit and advantage of, and covenants not to assert
against Lessor, any valuation, inquisition, stay, appraisement, extension or
redemption laws now existing or which may hereafter exist which, but for this
provision, might be applicable to any sale or re-leasing made under the
judgment, order or decree of any court or under the powers of sale and
re-leasing conferred by this Lease or otherwise. To the extent permitted by
applicable law, Lessee hereby waives any and all rights and remedies conferred
upon a Lessee by Article 2A-508 through 2A-522 of the Uniform Commercial Code,
including but not limited to Lessee's rights to: (i) cancel this Lease; (ii)
repudiate this Lease; (iii) reject the Equipment; (iv) revoke acceptance of the
Equipment; (v) recover damages from Lessor for any breaches of warranty or for
any other reason; (vi) claim a security interest in the Equipment in Lessee's
possession or control for any reason; (vii) deduct all or any part of any
claimed damages resulting from Lessor's default, if any, under this Lease;
(viii) accept partial delivery of the Equipment; (ix) "cover" by making any
purchase or lease of or contract to purchase or lease Equipment in substitution
of Equipment identified to this Lease; (x) recover any general, special,
incidental, or consequential damages, for any reason whatsoever; and (xi)
specific performance, replevin, detinue, sequestration, claim, delivery or the
like for any Equipment identified to this Lease. To the extent permitted by
applicable law, Lessee also hereby waives any rights now or hereafter conferred
by statute or otherwise which may require Lessor to sell, lease or otherwise use
any Equipment in mitigation of Lessor's damages as set forth in Section 11 or
which may otherwise limit or modify any of Lessor's rights or remedies under
Section 11.
15. ENTIRE AGREEMENT; SEVERABILITY; ETC. This instrument and the
Rental Schedules (including the Equipment Schedules and Amortization Schedules
thereto) constitute the entire agreement between Lessor and Lessee relating to
the Equipment and all conversations, agreements or representations relating to
this Lease or to the Equipment are integrated herein. Lessee acknowledges and
agrees that neither the manufacturer, supplier, shipper, dealer or vendor
("Supplier") nor any salesman, representative or other agent of Supplier, is an
agent of Lessor. No salesman, representative or agent of Supplier is authorized
to bind Lessor or to waive or alter any term of condition to this Lease and no
representation as to the Equipment or any other matter by a Supplier shall in
any way affect Lessee's duty to pay Rental and perform its other obligations as
set forth in this Lease. If any provision hereof or any remedy herein provided
for shall be invalid under applicable law, such provision or remedy shall be
inapplicable and deemed omitted, but the remaining provisions and remedies
hereunder shall be given effect in accordance with the intent hereof. Neither
this Lease nor any term hereof may be changed, discharged, terminated or waived
except by an instrument in writing signed by the party against which enforcement
of the change, discharge, termination or waiver is sought. THIS LEASE SHALL BE
DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK BY VIRTUE OF LESSOR HAVING
SIGNED AND ACCEPTED THIS LEASE IN THE STATE OF NEW YORK, REGARDLESS OF THE ORDER
IN WHICH THE SIGNATURES OF THE PARTIES SHALL BE AFFIXED HERETO, SHALL BE DEEMED
TO BE PERFORMED IN THE STATE OF NEW YORK AND SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS
OF LAW OR CHOICE OF LAW, AND AS PART OF THE CONSIDERATION OF THE LESSOR
EXECUTING THIS LEASE, LESSEE HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING DIRECTLY OR INDIRECTLY FROM THIS LEASE SHALL BE LITIGATED ONLY IN COURTS
HAVING SITUS WITHIN THE STATE OF NEW YORK AND LESSEE HEREBY CONSENTS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN THE STATE OF
NEW YORK AND WAIVES THE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON THE LESSEE
HEREIN, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY CERTIFIED
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MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE LESSEE AT THE ADDRESS SHOWN ON
THE FACE HEREOF AND SERVICE SO MADE SHALL BE COMPLETE TWO (2) DAYS AFTER THE
SAME SHALL HAVE BEEN POSTED AS AFORESAID. LESSEE HEREBY WAIVES ANY RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY MATTER ARISING UNDER OR IN CONNECTION WITH THIS
LEASE. The captions in this Lease are for convenience for reference only and
shall not define or limit any of the terms or provisions hereof. This Lease
shall inure to the benefit of and be binding upon Lessor and Lessee and their
respective successors and assigns, subject, however, to the limitations set
forth in this Lease with respect to Lessee's assignment hereof. No right or
remedy referred to in this Lease is intended to be exclusive but each shall be
cumulative and in addition to any other right or remedy referred to in this
Lease or otherwise available to Lessor at law or in equity, and shall be in
addition to the provisions contained in any instrument referred to herein and
any instrument in supplement hereto. TIME IS OF THE ESSENCE WITH RESPECT TO THE
OBLIGATIONS OF LESSEE UNDER THIS LEASE.
16. NO PREPAYMENT; INTEREST. Lessee may not prepay this Lease, in
whole or in part, at any time. However, in the event Lessor declares all rents
and other amounts payable hereunder to be due and payable pursuant to paragraph
11 above, Lessee shall, upon demand, be required to pay the full amount demanded
pursuant to said paragraph 11. All amounts due and payable under this Lease
(including past due installments of rent) shall bear interest from and after
their respective due dates, at the lesser of one and one-half (1.5%) per month
or the highest rate permitted by applicable law, provided, however, that Lessee
shall have no obligation to pay any interest on interest except to the extent
permitted by applicable law.
17. NOTICES. Notices hereunder shall be deemed given if served
personally or by certified or registered mail, return receipt requested, to
Lessor and Lessee at their respective addresses set forth at the head of this
Lease. Any party hereto may from time to time by written notice to the other
change the address to which notices are sent to such party.
18. NO PURCHASE OPTION. Except as may be provided in a purchase
option agreement executed by Lessor and Lessee with regard to a Rental Schedule,
Lessee shall have no option to purchase or otherwise acquire title to or
ownership of any of the Equipment and shall have only the right to use the same
under and subject to the terms and provisions of this Lease.
IN WITNESS WHEREOF, Lessor and Lessee by their duly authorized
representatives have executed this Master Lease of Personal Property as of the
date set forth below.
AUDIONET, INC. CHARTER FINANCIAL, INC.
By: /s/ XXXX XXXXX By: /s/ XXXX XXXXXX
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Title: CFO Title: Vice President
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Date: April 15, 1998 Accepted On: April 27, 1998
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