EXHIBIT 10.24
[BANC OF AMERICA LOGO]
Lease Number
Banc of America Leasing & Capital, LLC Lease Agreement 03834 - 00400
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THIS LEASE AGREEMENT (this "Agreement") dated as of July 01, 2002 between BANC
OF AMERICA LEASING & CAPITAL, LLC ("Lessor"), a Delaware Limited Liability
Company having an office at 0000 Xxxxxxxxx Xxxxxxx, 0 Xxxxx, Xxxxxx, XX 00000,
and TRIPATH IMAGING, INC. ("Lessee"), a Delaware corporation, having its chief
executive office at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000.
1. LEASE AGREEMENT; SCHEDULES; TITLE. Subject to the terms and conditions
hereof, Lessor shall lease to Lessee, and Lessee shall lease from Lessor, the
items of personal property (collectively with all attachments and accessories
thereto, the "Units") described in one or more schedules (each, a "Schedule";
each Schedule, together with this Agreement as it pertains thereto, a "Lease")
which incorporate by reference this Agreement. Each Schedule shall constitute a
separate and independent lease and contractual obligation of Lessee. Upon
delivery and acceptance by Lessee of each Unit, Lessee shall execute and
deliver the Schedule relating to the Unit, with all information required on the
Schedule fully completed, identifying and accepting the Unit. Lessee hereby
assigns to Lessor all of Lessee's interest in any purchase orders, invoices or
other contracts of sale with respect to the Units provided that Lessor assumes
no obligations under such agreements other than the obligation to pay for the
Units if Lessee has complied with the terms of this Agreement. Lessee hereby
conveys whatever right, title and interest it may have in the Units to the
Lessor hereunder.
2. TERM OF LEASE; RENTALS. The lease term with respect to any Unit shall
consist of an "Interim Term" (if any) and a "Base Term" as specified in the
Schedule covering such Unit. Lessee shall pay rent for the Interim Term
("Interim Rent") and for the Base Term ("Base Rent") as specified in the
applicable Schedule.
3. NET LEASE; DISCLAIMER OF WARRANTIES. EACH LEASE IS A NET LEASE. ALL
COSTS, EXPENSES AND OTHER LIABILITIES ASSOCIATED WITH THE UNITS SHALL BE BORNE
SOLELY BY LESSEE. LESSEE'S OBLIGATION TO PAY RENT AND ALL OTHER OBLIGATIONS
UNDER ANY LEASE ARE ABSOLUTE AND UNCONDITIONAL, AND NOT SUBJECT TO ANY
ABATEMENT, DEFERMENT, REDUCTION, SETOFF, DEFENSE, COUNTERCLAIM OR RECOUPMENT
FOR ANY REASON WHATSOEVER. NO LEASE SHALL TERMINATE, EXCEPT AS EXPRESSLY
PROVIDED HEREIN, NOR SHALL THE OBLIGATIONS OF LESSEE BE AFFECTED, BY REASON OF
ANY DEFECT OR DAMAGE TO, OR ANY DESTRUCTION, LOSS, THEFT, FORFEITURE,
GOVERNMENTAL REQUISITION OR OBSOLESCENCE OF ANY UNIT, REGARDLESS OF CAUSE.
LESSEE ACKNOWLEDGES THAT LESSOR IS NOT A MERCHANT OR MANUFACTURER, OR AGENT OF
ANY SUCH PERSON, OR ENGAGED IN THE SALE OR DISTRIBUTION OF THE UNITS, AND HAS
NOT MADE, AND DOES NOT HEREBY MAKE, ANY REPRESENTATION OR WARRANTY AS TO
MERCHANTABILITY, PERFORMANCE, CONDITION, FITNESS OR SUITABILITY FOR LESSEE'S
PURPOSES OF ANY OF THE UNITS, OR MAKE ANY OTHER REPRESENTATION OR WARRANTY WITH
RESPECT TO THE UNITS. LESSOR SHALL NOT BE LIABLE TO LESSEE FOR, NOR SHALL
LESSEE'S OBLIGATIONS UNDER ANY LEASE BE AFFECTED BY, ANY LOSS, CLAIM,
LIABILITY, COST, DAMAGE OR EXPENSE OF ANY KIND CAUSED, OR ALLEGED TO BE CAUSED,
DIRECTLY OR INDIRECTLY, BY ANY UNIT, OR BY ANY INADEQUACY OF THE UNIT FOR ANY
PURPOSE, OR BY ANY DEFECT IN, THE USE OR MAINTENANCE OF, ANY REPAIRS, SERVICING
OR ADJUSTMENTS OF, OR ANY INTERRUPTION OR LOSS OF SERVICE OR USE OF, ANY UNIT,
OR ANY LOSS OF BUSINESS, PROFITS, CONSEQUENTIAL OR OTHER DAMAGE OF ANY NATURE.
Lessor hereby transfers and assigns to Lessee, to the extent allowable by law,
for and during the lease term of each Schedule, a non-exclusive interest in the
Unit warranties, if any, of the manufacturer, and hereby authorizes Lessee,
when there exists no Event of Default, to enforce such warranties and to obtain
at its own expense the customary services furnished by the manufacturer in
connection with the Units.
4. USE, MAINTENANCE, LOCATION. Lessee shall use, operate, protect and
maintain the Units in good operating order, repair, condition and appearance,
and in compliance with all applicable insurance policies, laws, ordinances,
rules, regulations and manufacturer's recommended procedures, and shall
maintain comprehensive records regarding the Units. The Units shall be used
solely for commercial or business purposes, and not for any consumer, personal,
home, or family purpose, and shall not be abandoned. Lessee shall not, through
modifications, alterations or otherwise, impair the value or originally
intended function of any Unit without Lessor's prior consent. Any replacement
or substitution of parts, improvements, upgrades, or additions to the Units
made by Lessee shall become and remain the property of Lessor and subject to
the Lease, except that if no Event of Default exists, Lessee may at its expense
remove improvements or additions provided by Lessee that can be readily removed
without impairing the value and function of the Unit. If requested by Lessor,
Lessee shall cause each Unit to be plainly marked to disclose Lessor's
ownership, as specified by Lessor. Lessee shall not change the location or base
of any Unit specified in its Schedule without Lessor's prior consent. Lessee
shall notify Lessor at least 30 days before changing the location of its chief
executive office.
5. LOSS AND DAMAGE. Lessee assumes all risk of, and shall promptly notify
Lessor of any occurrence of, any damage to or loss, theft, confiscation, or
destruction of (together, "Casualty") each Unit from any cause whatsoever from
the date the Unit is shipped by the vendor or manufacturer or otherwise made
available to Lessee ("Shipment Date"). If any Unit suffers a Casualty from the
Shipment Date until the
Acceptance Date (as defined in the applicable Schedule), Lessee shall pay
Lessor any sum required to be paid under any Progress Payment Agreement entered
into between Lessor and Lessee in relation to such Unit. If any Unit suffers a
Casualty on or after its Acceptance Date, Lessee shall, if the Casualty is
damage that is reparable in the judgment of Lessor, at its own expense promptly
place the same in good repair, condition or working order, and, if the Unit is
lost, stolen, confiscated, destroyed or damaged beyond repair ("Total Loss"),
on the rent payment date following such occurrence (or, if none, within 30
days) pay Lessor the Stipulated Loss Value (as defined in the applicable
Schedule) therefor, together with all other amounts owing under the Lease with
respect to the Unit. Upon such payment, (a) the Lease of the Unit shall
terminate and Lessor thereupon shall become entitled to possession of the Unit
and (b) Lessee shall become entitled to proceeds of insurance maintained by
Lessee to the extent of such payment, any excess proceeds to be retained by
Lessor. If less than all Units in the applicable Schedule suffer Total Loss,
the remaining Base Rent under the Schedule shall be reduced as reasonably
calculated by Lessor and notified to Lessee.
6. INSURANCE. Lessee, at its own expense, shall keep each Unit insured
against all risks for the value of the Unit, and in no event for less than the
Stipulated Loss Value of the Unit, and shall maintain public liability
insurance against such risks and for such amounts as Lessor may require. All
such insurance shall be in such form and with such companies as Lessor shall
approve, shall specify Lessor and Lessee as insureds and shall provide that
such insurance may not be canceled as to Lessor or altered in any way that
would affect the interest of Lessor without at least 30 days' prior written
notice to Lessor (10 days' in the case of nonpayment of premium). All insurance
shall be primary, without right of contribution from any other insurance
carried by Lessor, shall contain waiver of subrogation and "breach of warranty"
provisions satisfactory to Lessor, shall provide that all amounts payable by
reason of loss or damage to the Units shall be payable solely to Lessor, unless
Lessor otherwise agrees, and shall contain such other endorsements as Lessor
may reasonably require. Lessee shall provide Lessor with evidence satisfactory
to Lessor of the required insurance upon the execution of any Schedule and
promptly upon any renewal of any required policy.
7. INDEMNITIES. (a) General Indemnity. Lessee shall indemnify, on an
after-tax basis, Lessor, its successors and assigns, and their respective
officers, directors, employees, agents and affiliates ("Indemnified Persons")
against all claims, liabilities, losses and expenses whatsoever (except those
directly and primarily caused by the Indemnified Person's gross negligence or
willful misconduct), including reasonable attorneys' fees and allocated costs
of internal counsel (together, "Attorney Costs"), in any way relating to or
arising out of this Agreement, the Units or the Leases at any time, or the
ordering, acquisition, rejection, installation, possession, maintenance, use,
ownership, condition, destruction, return, or disposition of the Units,
including such matters based in negligence and strict liability in tort,
environmental liability, statutory liability, or infringement or Lessee's
breach of any representation, warranty or covenant contained herein or any
other agreement related hereto.
(b) General Tax Indemnity. Lessee shall pay or reimburse Lessor and its
successors and assigns on demand for, and indemnify and hold Lessor harmless
from, on an after-tax basis, all taxes, assessments, fees and other
governmental charges paid or required to be paid by Lessor or Lessee in any way
arising out of or related to the Units or the Leases, before, during or after
the lease term, including foreign, Federal, state, county and municipal fees,
taxes and assessments, and property, value-added, sales, use, gross receipts,
excise, stamp and documentary taxes, and all related penalties, fines,
additions to tax and interest charges (together, "Impositions"), excluding only
Federal and state taxes based on Lessor's net income unless such taxes are in
lieu of any Imposition Lessee would otherwise be required to pay hereunder.
Lessee shall timely pay any Imposition for which Lessee is primarily
responsible under law and any other Imposition not payable or not paid by
Lessor, but Lessee shall have no obligation to pay any such Imposition that
Lessee is contesting in good faith and by appropriate legal proceedings, the
nonpayment of which does not, in the opinion of Lessor, result in a material
risk of adverse effect on the title, property, use, disposition or other rights
of Lessor with respect to the Units. Lessee shall furnish on Lessor's request
proof of payment of any Imposition paid by Lessee.
(c) Special Tax Indemnity. (i) All references to "Lessor" in this Section
7(c) shall include (A) Lessor's successors and assigns, and (B) each member of
the affiliated group of corporations, as defined in Section 1504(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), of which Lessor or such
successor or assign is at any time a member.
(ii) Lessor shall be treated for Federal, state and local income
tax purposes as the owner of the Units and shall be entitled to take
into account in computing its income tax liabilities all items of
income, deduction (including depreciation consistent with Lessee's
representation in the applicable Schedule), credit, gain or loss
relating to ownership of the Units as are provided to owners of
similar equipment under the Code and applicable state and local tax
laws as in effect on the Acceptance Date of such Units (collectively,
the "Tax Benefits").
(iii) If (A) Lessor loses, is delayed in claiming, is required to
recapture (other than in connection with a sale of the Unit following
the end of the lease term, provided Lessee is not then in default), is
not allowed or does not claim as a result of a written opinion of
Lessor tax counsel to the effect that Lessor's claiming of such Tax
Benefits probably would not be upheld by a court if the matter were
litigated (that is, that the chances of a finding against Lessor are
at least as great as the chances of a finding in favor of Lessor) all
or any portion of any Tax Benefits, under any circumstances, at any
time and for any reason, or (B) Lessor is required under Section 467
of the Code or otherwise to include in its gross income with respect
to any Lease or Unit any amount at any time other than rentals and
other amounts as and when accrued in accordance with the express terms
of the Lease (together, "Tax Loss"), then, upon Lessor's demand and at
Lessor's option, either: (x) all further rental payments with respect
to such Unit, if any, shall be increased by an amount, or (y) Lessee
shall pay to Lessor a lump sum amount, which shall in either case
maintain the net economic after-tax yield, cash-flow and rate of
return Lessor originally anticipated, based on an assumed combined
Federal, state and local income tax rate for Lessor of 38.20% and
other assumptions originally used by Lessor in evaluating the
transaction and setting the rental therefor and the other terms
thereof. Lessee shall also pay to Lessor on demand all interest, costs
(including Attorney Costs), penalties and additions to tax associated
with the Tax Loss.
(iv) Lessee shall be under no obligation to make a payment under
the preceding paragraph (iii) relating to a Tax Loss to the extent
that the Tax Loss is caused by Lessor's failure to have sufficient
taxable income to benefit from any Tax Benefits. Lessor shall have no
obligation to contest any Tax Loss.
8. RETURN; EXTENSIONS; PURCHASES. (a) Upon any termination or expiration
of the lease term with respect to any Unit, Lessee shall, at its own expense,
prepare and adequately protect the Unit for shipment and either surrender it to
Lessor in place or, if instructed by Lessor, ship the Unit to Lessor, freight
and insurance pre-paid, at a place reasonably designated by Lessor, in the
condition required under Section 4 hereof and under the applicable Schedule,
and able to be put into immediate service and to perform at manufacturer's
rated levels (if any), together with all related manuals, documents and
records. If Lessee does not so surrender or return a Unit to Lessor, in
addition to all other rights and remedies available, at Lessor's election, such
Unit shall continue to be subject to all the terms and conditions of the Lease,
with rent and other charges continuing to accrue and be payable under the Lease
with respect to such Unit until it is so surrendered or returned to Lessor,
except that Base Rent shall accrue, payable on demand, at the rate of 150% of
the rate applicable in the last period for which Base Rent was payable.
(b) Except as set forth in the applicable Schedule, Lessee has no right to
extend any Lease or purchase any Unit.
9. LESSEE REPRESENTATIONS AND AGREEMENTS. (a) Lessee represents, warrants
and agrees as follows: Lessee is duly organized and is in good standing in all
jurisdictions where legally required in order to carry on its business, has
duly authorized the execution, delivery and performance of this Agreement, each
Schedule and all other documents contemplated hereby, which are, or upon
signing, will be binding on Lessee, do not and will not contravene any other
instrument or agreement to which Lessee is party and there is no pending
litigation, tax claim, proceeding or dispute that may adversely affect Lessee's
financial condition or impair its ability to perform its obligation under the
terms of this Agreement.
(b) Letter Of Credit. As additional security for the payment and
performance of Lessee's obligations to Lessor hereunder, Lessee shall provide
Lessor with an irrevocable transferable standby letter of credit in the amount
of $1,500,000.00 (the "Letter of Credit"), issued by a banking institution
acceptable at all times to Lessor (in Lessor's sole discretion), for the
benefit of Lessor. The Letter of Credit shall support all Lessee's obligations
hereunder, shall be in form and substance fully satisfactory to Lessor, and
shall be delivered to Lessor at or before the time of delivery of this
Agreement. Such Letter of Credit is to be non-cancelable and irrevocable while
any obligations hereunder remain unpaid. In addition to the Events of Default
defined herein, an Event of Default shall have occurred if (i) Lessor receives
a notice of cancellation of (or intent to cancel) the Letter of Credit, or (ii)
at least ninety (90) days prior to the expiration of the Letter of Credit
(unless the Letter of Credit expires on or subsequent to the final day of the
Base Term with respect to all Leases hereunder), Lessor has not received
confirmation that the Letter of Credit will be renewed, extended, or replaced
by a substantially identical letter of credit issued by a banking institution
satisfactory to Lessor in its sole discretion, entitling Lessor to draw on the
Letter of Credit and to exercise any and all remedies and rights available to
Lessor under this Agreement, any Lease, or otherwise. Lessor may in its
discretion apply all or part of any proceeds from such Letter of Credit (or any
replacement thereof) to any of Lessee's unperformed obligations, whereupon
Lessee shall immediately provide a substantially identical letter of credit,
issued by a banking institution satisfactory to Lessor in Lessor's sole
discretion, effective for the remainder of the Base Term with respect to all
Leases hereunder (including any renewal).
10. PERSONAL PROPERTY. The Units shall remain personal property at all
times, notwithstanding the manner in which they may be attached or affixed to
realty, and title shall at all times continue in Lessor. Lessee shall obtain
and record such instruments and take such steps as may be necessary (a) to
prevent any person from acquiring any right or lien in or on any Unit, whether
by reason of such Unit being deemed to be attached to real or other property,
or otherwise, and (b) to ensure Lessor's right of access to and removal of the
Unit, in accordance with the Lease.
11. DEFAULT AND REMEDIES. (a) Each of the following is an "Event of
Default" hereunder and under any and all Leases then in effect: (1) Lessee
fails to pay within five days of the day when due any installment of rent or
other sum owing by Lessee under any Lease; (2) Lessee fails to maintain
insurance in respect of any Unit as required herein, or sells, leases,
subleases, assigns, conveys, encumbers or suffers to exist any lien or charge
against, any Unit without Lessor's prior consent, or any Unit is subjected to
levy, seizure or attachment; (3) Lessee fails to perform and comply with any
other covenant or obligation under any Lease, or any progress payment,
assignment, security or other agreement related to any Lease or Unit (together,
"Related Agreements") and, if curable, such failure continues for 30 days after
written notice thereof by Lessor to Lessee, (4) any representation, warranty or
other written statement made to Lessor in
connection with this Agreement, any Lease, Related Agreement, or any guaranty,
by Lessee or any person providing such guaranty ("Guarantor"), including
financial statements, proves to have been incorrect in any material respect
when made; (5) Lessee (x) enters into any merger or consolidation with, or
sells or transfers all, substantially all or any substantial portion of its
assets to, or enters into any partnership or joint venture other than in the
ordinary course of business with, any entity, (y) dissolves, liquidates or
ceases or suspends the conduct of business, or ceases to maintain its
existence, or (z) enters into or suffers any transaction or series of
transactions as a result of which Lessee is directly or indirectly controlled
by persons or entities not affiliates of Lessee as of the date of this
Agreement; (6) Lessee undertakes any general assignment for the benefit of
creditors or commences any voluntary case or proceeding for relief under the
Bankruptcy Code, or any other law for the relief of debtors, or takes any
action to authorize or implement any of the foregoing; (7) the filing of any
petition or application against Lessee under any law for the relief of debtors,
including proceedings under the Bankruptcy Code, or for the subjection of
property of Lessee to the control of any court, receiver or agency for the
benefit of creditors if such petition or application is consented to by Lessee
or not dismissed within 60 days from the date of filing; (8) any payment
default or other event of default occurs under any other bilateral or
multi-lateral lease, or credit, or other agreement or instrument to which
Lessee and Lessor or any affiliate of Lessor are now or hereafter party; (9)
any payment default or other event of default occurs under any other lease, or
credit, or other agreement or instrument or any combination thereof to which
Lessee is now or hereafter party and under which there is outstanding (on a
present value basis for all future rent, in the case of leases), owing or
committed an aggregate amount greater than ss.$100,000.00; (10) the repudiation
of or breach or default under any guaranty relating to any Lease; (11) the
occurrence of any event described in clauses (5), (6), (7), (8) or (9) of this
Section with reference to "any Guarantor" in lieu of "Lessee", or any Guarantor
dies; or (12) failure to perform and observe the covenants in Section 9(b).
(b) Upon the occurrence of an Event of Default and in addition to all
other rights and remedies provided herein or under law, all of which rights and
remedies are cumulative and not exclusive, Lessor may: (i) proceed by
appropriate court action or actions, either at law or in equity, to enforce
performance by Lessee of the applicable covenants under any or all Leases, or
(ii) terminate any and all Leases, repossess the Units, and recover direct,
incidental, consequential and other damages for the breach thereof and, at its
election, dispose of the Units by lease, sale or otherwise, and pursue any and
all other remedies provided upon breach of personal property leases under the
Uniform Commercial Code of the state specified in Section 16(k) of this
Agreement (whether or not otherwise applicable) or as provided by other
applicable law. Lessor may recover from Lessee all Attorney Costs in the amount
of 15% of all amounts due on or after the time of such breach or default (but
not to exceed the amount actually incurred). To determine any present value
quantity for purposes of this Section, the applicable discount rate shall be
the then-current bond-equivalent yield per annum for United States Government
Treasury obligations of maturity corresponding to the weighted average life,
rounded to the second decimal place, of the discounted payment stream (or, if
no maturity exactly corresponds to such rounded weighted average life, the
discount rate shall be interpolated from the yields of the two most closely
corresponding published maturities). In the alternative, at its election,
Lessor may enforce as liquidated damages and not as a penalty, payment of an
amount equal to all accrued and unpaid rent plus the Stipulated Loss Value of
any and all Units.
(c) The exercise or partial exercise of, or failure to exercise, any
remedy shall not restrict Lessor from further exercise of that remedy or any
other remedy otherwise available. To the extent permitted by applicable law,
Lessee waives any right to require Lessor to sell, release or otherwise use or
dispose of any Units or otherwise mitigate Lessor's damages, or that may
otherwise limit or modify any of Lessor's rights or remedies.
12. ASSIGNMENT, ETC. (a) Lessor (and any subsequent assignee) may assign
or transfer any or all of Lessor's interest in any Lease, Unit or the rentals
therefrom without notice to Lessee. Lessee agrees that the rights of any
assignee shall not be affected by any breach or default of Lessor or of any
prior assignee. Lessee further agrees that (i) no such assignee shall be
required to assume any of the obligations of Lessor under any Lease except the
obligation in respect of the application of any insurance monies received by
such assignee as provided above, and the obligation of non-interference as
provided below, and (ii) any assignee expressly assuming the obligations of
Lessor shall thereupon be responsible for Lessor's duties under the applicable
Lease accruing after any such assignment and Lessor shall be released from such
duties. Lessor may disclose to any potential or actual assignee or transferee
any information regarding Lessee, any Guarantor and their affiliates.
(B) LESSEE SHALL NOT ASSIGN, PLEDGE, HYPOTHECATE OR IN ANY WAY DISPOSE OF
ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER ANY LEASE, OR ENTER INTO ANY
SUBLEASE OF ANY UNIT, WITHOUT LESSOR'S PRIOR WRITTEN CONSENT.
13. FINANCIAL AND OTHER DATA. (a) During the term of any Lease, Lessee
shall (i) maintain books and records in accordance with generally accepted
accounting principles ("GAAP") and prudent business practice, (ii) promptly and
in no event later than 120 days after each fiscal year end furnish Lessor
annual audited financial statements of Lessee and of any Guarantor, prepared in
accordance with GAAP consistently applied, together with an unqualified opinion
of an independent auditor, and (iii) at Lessor's request, furnish Lessor all
other financial information and reports reasonably requested by Lessor at any
time, including quarterly or other interim financial statements of Lessee and
of any Guarantor. Lessee shall furnish such other information as Lessor may
reasonably request at any time concerning Lessee, any Guarantor and their
respective affairs, or any Unit. Lessee shall promptly notify Lessor of any
Event of Default or event or circumstance which, with notice, lapse of time or
both, would be an Event of Default.
(b) Lessee represents and warrants that all information furnished and to
be furnished by Lessee or any Guarantor to Lessor is accurate, and
that all financial statements Lessee or any Guarantor has furnished and
hereafter may furnish to Lessor reasonably reflect and will reflect, as of
their respective dates, results of the operations and the financial condition
of Lessee, such Guarantor or any other entity they purport to cover.
(c) Credit and other information regarding Lessee, any Guarantor or their
affiliates may be shared by Lessor with its affiliates and agents.
14. INSPECTION; NON-INTERFERENCE. (a) Lessor, its agents and employees
shall have the right to enter any property where any Unit is located and
inspect any Unit, together with its related books and records, at any
reasonable time. Such right shall not impose any obligation on Lessor.
(b) So long as no Event of Default exists, Lessor shall not and each
direct or indirect assignee or transferee of Lessor agrees that it shall not,
interfere with the rights of use and enjoyment of the Units by Lessee.
15. OTHER CHARGES; APPLICATION. If Lessee fails to pay within ten days of
the date due any amount of regularly scheduled Interim Rent or Base Rent,
Lessee shall pay a late charge equal to five percent (5%) of the amount not
timely paid. Lessee shall pay interest at the per annum rate equal to the
lesser of (a) 15% or (b) the highest rate permitted by applicable law ("Default
Rate") on (i) any sum other than regularly scheduled Interim Rent and Base Rent
owing under any Lease and not paid when due, and (ii) any amount required to be
paid upon termination of any Lease under Section 11 hereof. Payments received
under any Lease will be applied, first, to interest, fees and other amounts
owing, other than Interim Rent or Base Rent, then to Interim Rent or Base Rent,
in order of Acceptance Date.
16. MISCELLANEOUS. (a) Each Lease is and is intended to be a lease of
personal property for commercial and federal income tax purposes, and Lessee
does not acquire any right, title or interest in or to the Units, except the
right to use the same under the conditions of the applicable Lease. Lessee
waives any right to assert any lien or security interest on the Units in
Lessee's possession or control for any reason.
(b) Lessee's indemnity and reimbursement obligations, including under
Section 7, shall survive the termination or cancellation of any Lease or this
Agreement.
(c) At Lessor's request, Lessee shall execute, deliver, file, and record
such financing statements and other documents, agreements and instruments as
Lessor shall deem necessary or advisable to protect Lessor's interest in the
Units and to effectuate the purposes of any Lease and the Related Agreements.
Lessee hereby irrevocably appoints Lessor as Lessee's agent and
attorney-in-fact for Lessee, coupled with an interest, (i) to execute, deliver,
file, or record any such item, and to take such action for Lessee and in
Lessee's name, place and stead, and (ii) to enforce claims relating to the
Units against insurers, vendors, and other persons, and to make, adjust,
compromise, settle and receive payment under such claims; without any
obligation to do so.
(d) Time is of the essence.
(e) The invalidity of any portion of this Agreement, any Schedule or
Related Agreement shall not affect the force and effect of the remaining valid
portions thereof. The term "including" is not limiting. The term "affiliate"
includes any entity controlling, controlled by or under common control with the
referent entity; "control" includes the ownership of 25% or more of the voting
stock of any entity. The term "guaranty" includes any guaranty, surety
instrument, indemnity, "keep-well" agreement or other instrument or arrangement
providing third party credit support to Lessor relating to any Lease or Unit.
(f) This Agreement, the Schedules, any approval letter by Lessor in
relation hereto and any replacement or successor letter thereto (together, the
"Approval Letter") and the Related Agreements, constitute the entire agreement
between the parties with respect to the leasing of the Units. Any amendment to
such documents must be made in writing and signed by the parties hereto or
thereto. Such documents may be executed in one or more counterparts. Where
multiple counterpart originals of any Schedule exist, only the counterpart
marked "Lessor's Copy" shall be deemed chattel paper and evidence a monetary
obligation of Lessee.
(g) All demands, notices, requests, consents, waivers and other
communications under this Agreement, any Lease, any Approval Letter or any
Related Agreement shall be in writing and shall be deemed to have been duly
given when received, personally delivered or three business days after being
deposited in the mail, first class postage prepaid, or the business day after
delivery to an express carrier, charges prepaid, or when sent by facsimile
transmission or electronic mail (with electronic confirmation of receipt),
addressed to each party at the address, electronic mail address or fax number
set forth below the signature of such party on the signature page, or at such
other address or fax number as may hereafter be furnished in writing by such
party to the other.
(h) (i) To secure the payment and performance of its obligations under the
Lease relating to such Unit and the repayment of any advances, with interest
and fees, made by Lessor on account of the Unit, and (ii) as a separate grant
of security, to secure the payment and performance of its obligations under all
other Leases and all other lease, loan or other obligations owing by Lessee to
Lessor, in each case,
now existing or hereafter arising, Lessee hereby grants to Lessor a security
interest in all of Lessee's right, title and interest in and to each Unit,
together with (A) all attachments, accessories and accessions to, substitutions
and replacements for, and products of, the Unit, (B) all rights to chattel
paper arising from the Unit, (C) all insurance, warranty and other claims
against third parties with respect to the Unit (including claims for rent upon
any lease of the Unit), (D) all software and other intellectual property rights
used or useful in connection therewith, (E) all proceeds of any of the
foregoing, including insurance proceeds, and (F) all books and records
regarding the foregoing, in each case, now existing or hereafter arising.
(i) To the extent permitted by applicable law, this is a "finance lease"
under the Article of the Uniform Commercial Code governing personal property
leases. Lessee waives any right (i) to cancel or repudiate any Lease, (ii) to
reject or revoke acceptance of any Unit, and (iii) to recover from Lessor any
general or consequential damages, for any reason whatsoever.
(j) To the extent specified in any Approval Letter, Lessee shall reimburse
Lessor upon demand for costs and expenses incurred by Lessor in connection with
the execution and delivery of this Agreement and the other documents
contemplated hereby. Lessee shall reimburse Lessor on demand for all costs and
expenses, including Attorney Costs, incurred in connection with any amendment
of any Lease or related document requested by Lessee, or any waiver.
(K) THIS AGREEMENT, EACH SCHEDULE AND (UNLESS OTHERWISE SPECIFIED THEREIN)
THE RELATED AGREEMENTS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE
INTERNAL LAWS OF THE STATE OF GEORGIA, TO THE NON-EXCLUSIVE JURISDICTION OF THE
COURTS OF WHICH, AND THE FEDERAL COURTS LOCATED THEREIN, THE PARTIES HERETO
SUBMIT.
(L) LESSOR AND LESSEE EACH WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER HOWEVER
ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY LEASE OR THE UNITS.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Agreement as of the
date first above written.
Banc of America Leasing TriPath Imaging, Inc.
& Capital, LLC (Lessor) (Lessee)
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------- -------------------------------
Printed Name: Xxxxx Xxxxx Printed Name: Xxxxx X. Xxxxxxxx
Title: Vice President Title: Director of Finance and
Address: 0000 Xxxxxxxxx Xxxxxxx, 0 Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000 Address: 0000 Xxxxxxx Xxxx Xx
Facsimile: (000)000-0000 Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
