LEASE AGREEMENT
Exhibit 99.1
Lease Agreement Number NA013107
This Lease Agreement, dated January 31, 2007, by and between FARNAM STREET FINANCIAL, INC.
(the “Lessor”) with an office located at 240 Pondview Plaza, 0000 Xxxx Xxxxxxx, Xxxxxxxxxx, XX
00000 and NATIONSHEALTH, INC. (the “Lessee”) with an office located at 00000 Xxxxxxxxx
0xx Xxxxxx, Xxxxxxx, XX 00000.
Lessor hereby leases or grants to the Lessee the right to use and Lessee hereby rents and accepts
the right to use the equipment listed by serial number and related services, and software and
related services on the Lease Schedule(s) attached hereto or incorporated herein by reference
from time to time (collectively, the equipment, software and services are the “Equipment”),
subject to the terms and conditions hereof, as supplemented with respect to each item of
Equipment by the terms and conditions set forth in the appropriate Lease Schedule. The term
“Lease Agreement” shall include this Lease Agreement and the various Lease Schedule(s)
identifying each item of Equipment or the appropriate Lease Schedule(s) identifying one or more
particular items of Equipment.
1. TERM: This Lease Agreement is effective from the date it is executed by both parties.
The term of this Lease Agreement, as to all Equipment designated on any particular Lease Schedule,
shall commence on the Installation Date for all Equipment on such Lease Schedule and shall continue
for an initial period ending that number of months from the Commencement Date as set forth in such
Lease Schedule (the “Initial Term”) and shall continue from year to year thereafter until
terminated. The term of this Lease Agreement as to all Equipment designated on any particular
Lease Schedule may be terminated without cause at the end of the Initial Term or any year
thereafter by either party mailing written notice of its termination to the other party not less
than one-hundred twenty (120) days prior to such termination date.
2. COMMENCEMENT DATE: The Installation Date for each item of Equipment shall be the day said item
of Equipment is installed at the Location of Installation, ready for use, and accepted in writing
by the Lessee. The Commencement Date for any Lease Schedule is the first of the month following
installation of all the Equipment on the Lease Schedule, unless the latest Installation Date for
any Equipment on the Lease Schedule falls on the first day of the month, in which case that is the
Commencement Date. The Lessee agrees to complete, execute and deliver a Certificate(s) of
Acceptance to Lessor upon installation of the Equipment.
3. LEASE CHARGE: The lease charges for the Equipment leased pursuant to this Lease Agreement shall
be the aggregate “Monthly Lease Charge(s)” as set forth on each and every Lease Schedule executed
pursuant hereto (the aggregate “Monthly Lease Charge(s)” are the “Lease Charges”). Lessee agrees
to pay to Lessor the Lease Charges in accordance with the Lease Schedule(s), and the payments shall
be made at Lessor’s address indicated thereon. The Lease Charges shall be paid by Lessee monthly
in advance with the first full month’s payment due on the Commencement Date. If the Installation
Date does not fall on the first day of a month, the Lease Charge for the period from the
Installation Date to the Commencement Date shall be an amount equal to the “Monthly Lease Charge”
divided by thirty (30) and multiplied by the number of days from and including the Installation
Date to the Commencement Date and such amount shall be due and payable upon receipt of an invoice
from Lessor. Charges for taxes made in accordance with Section 4 and charges made under any other
provision of this Lease Agreement and payable by Lessee shall be paid to Lessor at Lessor’s address
specified on the Lease Schedule(s) on the date specified in invoices delivered to Lessee. If
payment, as specified above, is not received by Lessor on the due date, Lessee agrees to and shall,
to the extent permitted by law, pay on demand, as a late charge, an amount equal to one and
one-half percent (11/2%), or the maximum percentage allowed by law if less, of the amount past due
(“Late Charges”). Late Charges shall be charged and added to any past due amount on the date such
payment is due and every thirty (30) days thereafter until all past due amounts are paid in full to
Lessor.
4. TAXES: In addition to the Lease Charges set forth in Section 3, the Lessee shall reimburse
Lessor for all license or registration fees, assessments, sales and use taxes, rental taxes, gross
receipts taxes, personal property taxes and other taxes now or hereafter imposed by any government,
agency, province or otherwise upon the Equipment, the Lease Charges or upon the ownership, leasing,
renting, purchase, possession or use of the Equipment, whether the same be assessed to Lessor or
Lessee (the “Taxes”). Lessor shall file all property tax returns and pay all Taxes when due.
Lessee, upon notice to Lessor, may, in Lessee’s own name, contest or protest any Taxes, and Lessor
shall honor any such notice except when in Lessor’s sole opinion such contest is futile or will
cause a levy or lien to arise on the Equipment or cloud Lessor’s title thereto. Lessee shall, in
addition, be responsible to Lessor for the payment and discharge of any penalties or interest as a
result of Lessee’s actions or inactions. Nothing herein shall be construed to require Lessee to be
responsible for any federal or state taxes or payments in lieu thereof, imposed upon or measured by
the net income of Lessor, or state franchise taxes of Lessor, or except as provided hereinabove,
any penalties or interest resulting from Lessor’s failure to timely remit such tax payments.
5. DELIVERY AND FREIGHT COSTS: Lessee shall accept delivery of the Equipment and allow the
Equipment to be installed within seven (7) days after delivery.
All transportation charges upon the Equipment for delivery to Lessee’s designated Location of
Installation are to be paid by Lessee. All rigging, drayage charges, structural alterations,
rental of heavy equipment and/or other expense necessary to place the Equipment at the Location of
Installation are to be promptly paid by Lessee.
6. INSTALLATION: Lessee agrees to pay for the actual installation of the Equipment at Lessee’s
site. Lessee shall make available and agrees to pay for all costs associated with providing a
suitable place of installation and necessary electrical power, outlets and air conditioning
required for operating the Equipment as defined in the Equipment manufacturer’s installation manual
or instructions. All supplies consumed or required by the Equipment shall be furnished and paid
for by Lessee.
7. RETURN TO LESSOR: On the day following the last day of the lease term associated with a Lease
Schedule (the “Return Date”), Lessee shall cause and pay for all the Equipment (by serial number
where serialized) on that Lease Schedule to be deinstalled, packed using the manufacturer’s
original packing materials and shipped to a location designated in writing by Lessor (the “Return
Location”). If all the Equipment on the applicable Lease Schedule is not at the Return Location
within ten (10) days of the Return Date, or Lessee fails to deinstall and ship all the Equipment on
the Return Date, then any written notice of termination delivered by Lessee shall become void, and
the Lease Schedule shall continue in accordance with this Lease Agreement. Irrespective of any
other provision hereof, Lessee will bear the risk of damage from fire, the elements or otherwise
until delivery of the Equipment to the Return Location. At such time as the Equipment is delivered
to the Lessor at the Return Location, the Equipment will be at the risk of Lessor.
8. MAINTENANCE: Lessee, at its sole expense, shall maintain the Equipment in good working order
and condition. Lessee shall enter into, pay for and maintain in force during the entire term of
any Lease Schedule, a maintenance agreement with the original manufacturer of the Equipment
providing for continuous uninterrupted maintenance of the Equipment (the “Maintenance Agreement”).
Lessee will cause the manufacturer to keep the Equipment in good working order in accordance with
the provisions of the Maintenance Agreement and make all necessary adjustments and repairs to the
Equipment. The manufacturer is hereby authorized to accept the directions of Lessee with respect
thereto. Lessee agrees to allow the manufacturer full and free access to the Equipment. All
maintenance and service charges, whether under the Maintenance Agreement or otherwise, and all
expenses, if any, of the manufacturer’s customer engineers incurred in connection with maintenance
and repair services, shall be promptly paid by Lessee. Lessee warrants that all of the Equipment
shall be in good working order operating according to manufacturer’s specification and eligible for
the manufacturer’s standard maintenance agreement upon delivery to and inspection and testing by
the Lessor. If the Equipment is not operating according to manufacturer’s specification, in good
working order and/or certified by the manufacturer as eligible for the manufacturer’s standard
maintenance agreement, Lessee agrees to reimburse Lessor for all costs, losses, expenses and fees
associated with such equipment and the repair or replacement thereof.
9. LOCATION, OWNERSHIP AND USE: The Equipment shall, at all times, be the sole and exclusive
property of Lessor. Lessee shall have no right or property interest therein, except for the right
to use the Equipment in the normal operation of its business at the Location of Installation, or as
otherwise provided herein. The Equipment is and shall remain personal property even if installed
in or attached to real property. Lessor shall be permitted to display notice of its ownership on
the Equipment by means of a suitable stencil, label or plaque affixed thereto.
Lessee shall keep the Equipment at all times free and clear from all claims, levies,
encumbrances and process. Lessee shall give Lessor immediate notice of any such attachment or
other judicial process affecting any of the Equipment. Without Lessor’s written permission, Lessee
shall not attempt to or actually: (i) pledge, lend, create a security interest in, sublet,
exchange, trade, assign, swap, use for an allowance or credit or otherwise; (ii) allow another to
use; (iii) part with possession; (iv) dispose of; or (v) remove from the Location of Installation,
any item of Equipment. If any item of Equipment is exchanged, assigned, traded, swapped, used for
an allowance or credit or otherwise to acquire new or different equipment (the “New Equipment”)
without Lessor’s prior written consent, then all of the New Equipment shall become Equipment owned
by Lessor subject to this Lease Agreement and the applicable Lease Schedule.
Any feature(s) installed on the Equipment at the time of delivery that are not specified on
the Lease Schedule(s) are and shall remain the sole property of the Lessor.
Lessee shall cause the Equipment to be operated in accordance with the applicable vendor’s or
manufacturer’s manual of instructions by competent and qualified personnel.
10. FINANCING STATEMENT: Lessor is hereby authorized by Lessee to cause this Lease Agreement or
other instruments, including Uniform Commercial Code Financing Statements, to be filed or recorded
for the purposes of showing Lessor’s interest in the Equipment. Lessee agrees to execute any such
instruments as Lessor may request from time to time.
11. ALTERATIONS AND ATTACHMENTS: Upon prior written notice to Lessor, Lessee may, at its own
expense, make minor alterations in or add attachments to the Equipment, provided such alterations
and attachments shall not interfere with the normal operation of the Equipment and do not otherwise
involve the pledge, assignment, exchange, trade or substitution of the Equipment or any component
or part thereof. All such alterations and attachments to the Equipment shall become part of the
Equipment leased to Lessee and owned by Lessor. If, in Lessor’s sole determination, the alteration
or attachment reduces the value of the Equipment or interferes with the normal and satisfactory
operation or maintenance of any of the Equipment, or creates a safety hazard, Lessee shall, upon
notice from Lessor to that effect, promptly remove the alteration or attachment at Lessee’s expense
and restore the Equipment to the condition the Equipment was in just prior to the alteration or
attachment.
12. LOSS AND DAMAGE: Lessee shall assume and bear the risk of loss, theft and damage (including
any governmental requisition, condemnation or confiscation) to the Equipment and all component
parts thereof from any and every cause whatsoever, whether or not covered by insurance. No loss or
damage to the Equipment or any component part thereof shall impair any obligation of Lessee under
this Lease Agreement, which shall continue in full force and effect except as hereinafter expressly
provided. Lessee shall repair or cause to be repaired all damage to the Equipment. In the event
that all or part of the Equipment shall, as a result of any cause whatsoever, become lost, stolen,
destroyed or otherwise rendered irreparably unusable or damaged (collectively, the “Loss”) then
Lessee shall, within ten (10) days after the Loss, fully inform Lessor in writing of such a Loss
and shall pay to Lessor the following amounts: (i) the Monthly Lease Charges (and other amounts)
due and owing under this Lease Agreement, plus (ii) one-hundred (100%) percent of the original cost
of the Equipment subject to the Loss if the loss occurs in the first nine months of the Initial
Term, and, thereafter, the original cost of the Equipment amortized by the subsequent Monthly Lease
Charges received by Lessor during the Initial Term using an amortization rate of eight hundred and
ninety (890) basis points over the interest rate of the three (3) year United States Treasury Note
as reported by the Federal Reserve on the Commencement Date (collectively, the sum of (i) plus (ii)
shall be the “Casualty Loss Value”). Notwithstanding the proceeding, if Lessee has provided notice
to terminate the applicable Lease Schedule prior to informing Lessor in writing of a Loss and such
Loss is not covered by insurance proceeds pursuant to Section 13 hereof, then Lessee shall pay two
(2) times the Casualty Loss Value on the Equipment subject to such Loss. Upon receipt by Lessor of
the Casualty Loss Value: (i) the applicable Equipment shall be removed from the Lease Schedule; and
(ii) Lessee’s obligation to pay Lease Charges associated with the applicable Equipment shall cease.
Lessor may request, and Lessee shall complete, an affidavit(s) that swears out the facts supporting
the Loss of any item of Equipment.
13. INSURANCE: Until the Equipment is returned to Lessor or as otherwise herein provided, whether
or not this Lease Agreement has terminated as to the Equipment, Lessee, at its expense, shall
maintain: (i) property and casualty insurance insuring the Equipment for its Casualty Loss Value
naming Lessor or its assigns as sole loss payee; and (ii) comprehensive public liability and
third-party property insurance naming Lessor and its assigns as additional
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loss payees. The
insurance shall cover the interest of both the Lessor and Lessee in the Equipment, or as the case
may be, shall protect both the Lessor and Lessee in respect to all risks arising out of the
condition, delivery, installation, maintenance, use or operation of the Equipment. All such
insurance shall provide for thirty (30) days prior written notice to Lessor of cancellation,
restriction, or reduction of coverage. Lessee hereby irrevocably appoints Lessor as Lessee’s
attorney-in-fact to make claim for, receive payment of and execute and endorse all documents,
checks or drafts for loss or damage or return premium under any insurance policy issued on the
Equipment. Prior to installation of the Equipment, all policies or certificates of insurance shall
be delivered to Lessor by Lessee. Lessee agrees to keep the Equipment insured with an insurance
company which is at least “A” rated by A.M. Best. The proceeds of any loss or damage insurance
shall be payable to Lessor, but Lessor shall remit all such insurance proceeds to Lessee at such
time as Lessee either (i) provides Lessor satisfactory proof that the damage has been repaired and
the Equipment has been restored to good working order and condition or (ii) pays to Lessor the
Casualty Loss Value. It is understood and agreed that any payments made by Lessee or its insurance
carrier for loss or damage of any kind whatsoever to the Equipment are not made as accelerated
rental payments or adjustments of rental, but are made solely as indemnity to Lessor for loss or
damage of its Equipment.
14. ENFORCEMENT OF WARRANTIES: Upon receipt of a written request from Lessee, Lessor shall, so
long as this Lease Agreement is in force, take all reasonable action requested by Lessee to enforce
the Equipment manufacturer’s warranties, expressed or implied, issued on or applicable to the
Equipment, which are enforceable by Lessor in its own name. Lessor shall obtain for Lessee all
service furnished by manufacturer in connection therewith; provided, however, that Lessor shall not
be required to commence any suit or action or resort to litigation to enforce any such warranty
unless Lessee shall first pay to Lessor in advance all expenses in connection therewith, including
attorney’s’ fees.
If any such warranty shall be enforceable by Lessee in its own name, Lessee shall, upon
receipt of written request from Lessor, so long as this Lease Agreement is in force, take all
reasonable action requested by Lessor to enforce any such warranty, which is enforceable by Lessee
in its own name; provided, however, that Lessee shall not be obligated to commence any suit or
action or resort to litigation to enforce any such warranty unless Lessor shall pay all expenses in
connection therewith.
15. WARRANTIES, DISCLAIMERS AND INDEMNITY: THE LESSOR DOES NOT MAKE ANY WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. LESSEE
ACKNOWLEDGES THAT IT IS NOT RELYING ON LESSOR’S SKILL OR JUDGEMENT TO SELECT OR FURNISH GOODS
SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES CONTAINED IN THIS LEASE
AGREEMENT. LESSEE ACKNOWLEDGES AND AGREES THAT LESSOR HAS NOT MADE ANY STATEMENT, REPRESENTATION OR
WARRANTY RELATIVE TO THE ACCOUNTING OR TAX ENTRIES, TREATMENT, BENEFIT, USE OR CLASSIFICATION OF
THE LEASE AGREEMENT OR ASSOCIATED LEASE SCHEDULES. LESSEE ACKNOWLEDGES THAT IT AND/OR ITS
INDEPENDENT ACCOUNTANTS ARE SOLELY RESPONSIBLE FOR (i) ANY AND ALL OF LESSEE’S ACCOUNTING AND TAX
ENTRIES ASSOCIATED WITH THE LEASE AGREEMENT AND/OR THE LEASE SCHEDULES AND (ii) THE ACCOUNTING AND
TAX TREATMENT, BENEFITS, USES AND CLASSIFICATION OF THE LEASE AGREEMENT OR ANY LEASE SCHEDULE.
LESSOR SHALL NOT BE LIABLE FOR DAMAGES, INCLUDING SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE EQUIPMENT OR ITS USE BY LESSEE, AND
SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH LESSOR’S FAILURE TO PERFORM ITS OBLIGATION HEREUNDER. THIS LEASE AGREEMENT IS A
“FINANCE LEASE” AS THAT TERM IS DEFINED AND USED IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE. NO
RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE WILL BE CONFERRED ON
LESSEE.
Lessee agrees that Lessor shall not be liable to Lessee for, and Lessee shall indemnify,
defend and hold Lessor harmless with respect to, any claim from a third party for any liability,
claim, loss, damage or expense of any kind or nature, whether based upon a theory of strict
liability or otherwise, caused, directly or indirectly, by: (i) the inadequacy of any item of
Equipment, including software, for any purpose; (ii) any deficiency or any latent or other defects
in any Equipment, including software, whether or not detectable by Lessee; (iii) the selection,
manufacture, rejection, ownership, lease, possession, maintenance, operation, use or performance of
any item of Equipment, including software; (iv) any interruption or loss of service, use or
performance of any item of Equipment, including software; (v) patent, trademark or copyright
infringement; or (vi) any loss of business or other special, incidental or consequential damages
whether or not resulting from any of the foregoing. Lessee’s duty to defend and indemnify Lessor
shall survive the expiration, termination, cancellation or assignment of this Lease Agreement or a
Lease Schedule and shall be binding upon Lessee’s successors and permitted assigns.
16. EVENT OF DEFAULT: The occurrence of any of the following events shall constitute an Event of
Default under this Lease Agreement and/or any Lease Schedule:
| (1) | the nonpayment by Lessee of any Lease Charges when due, or the nonpayment by Lessee of any
other sum required hereunder to be paid by Lessee which non-payment continues for a period of
ten (10) days from the date when due; |
| (2) | the failure of Lessee to perform any other term, covenant or condition of this Lease
Agreement, any Lease Schedule or any other document, agreement or instrument executed
pursuant hereto or in connection herewith, which is not cured within ten (10) days; |
| (3) | Lessee attempts to or does remove, transfer, sell, swap, assign, sublease, trade, exchange,
encumber, receive an allowance or credit for, or part with possession of, any item of
Equipment; |
| (4) | Lessee or any guarantor of this Lease Agreement ceases doing business as a going concern,
is insolvent, makes an assignment for the benefit of creditors, fails to pay its debts as
they become due, offers a settlement to creditors or calls a meeting of creditors for any
such purpose, files a voluntary petition in bankruptcy, is subject to an involuntary petition
in bankruptcy, is adjudicated bankrupt or insolvent, files or has filed against it a petition
seeking any reorganization, arrangement or composition, under any present or future statute,
law or regulation; |
| (5) | any representations or warranties made at any time by Lessee or any guarantor in this Lease
Agreement or in any agreement, statement, certificate, financial or credit information
provided in connection herewith shall be false or misleading when made; |
| (6) | Lessee or any guarantor of this Lease Agreement defaults under any other
agreement now existing or hereafter made with Lessor, including an Equipment Purchase
Agreement; or |
| (7) | the breach or repudiation by any party thereto of any guaranty, subordination agreement or
other agreement
running in favor of Lessor obtained in connection with this Lease Agreement. |
17. REMEDIES: Should any Event of Default occur and be continuing, Lessor may, in order to protect
its interests and reasonably expected profits, with or without notice or demand upon
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Lessee, pursue and enforce,
alternatively, successively and/or concurrently, any one or more of the following remedies:
| (1) | recover from Lessee all accrued and unpaid Lease Charges and other amounts due and owing on
the date of the default; |
| (2) | recover from Lessee from time to time all Lease Charges and other amounts as and when
becoming due hereunder; |
| (3) | accelerate, cause to become immediately due and recover the present value of all Lease
Charges and other amounts due and/or likely to become due hereunder from the date of the
default to the end of the lease term using a discount rate of six (6%) percent; |
| (4) | cause to become immediately due and payable and recover from Lessee the Casualty Loss Value
of the Equipment; |
| (5) | terminate any or all of the Lessee’s rights, but not its obligations, associated with the
lease of Equipment under this Lease Agreement; |
| (6) | retake (by Lessor, independent contractor, or by requiring Lessee to assemble and surrender
the Equipment in accordance with the provisions of Section 7 hereinabove) possession of the
Equipment without terminating the Lease Schedule or the Lease Agreement free from claims by
Lessee which claims are hereby expressly waived by Lessee; |
| (7) | require Lessee to deliver the Equipment to a location designated by Lessor; |
| (8) | proceed by court action to enforce performance by Lessee of its obligations associated with
any Lease Schedule and/or this Lease Agreement; and/or |
| (9) | pursue any other remedy Lessor may otherwise have, at law, equity or under any statute, and
recover damages and expenses (including attorneys’ fees) incurred by Lessor by reason of the
Event of Default. |
Upon repossession of the Equipment, Lessor shall have the right to lease, sell or otherwise
dispose of such Equipment in a commercially reasonable manner, with or without notice, at a public
or private sale. Lessor’s pursuit and enforcement of any one or more remedies shall not be deemed
an election or waiver by Lessor of any other remedy. Lessor shall not be obligated to sell or
re-lease the Equipment. Any sale or re-lease may be held at such place or places as are selected
by Lessor, with or without having the Equipment present. Any such sale or re-lease, may be at
wholesale or retail, in bulk or in parcels. Time and exactitude of each of the terms and
conditions of this Lease Agreement are hereby declared to be of the essence. Lessor may accept
past due payments in any amount without modifying the terms of this Lease Agreement and without
waiving any rights of Lessor hereunder.
18. COSTS AND ATTORNEYS’ FEES: In the event of any default, claim, proceeding, including a
bankruptcy proceeding, arbitration, mediation, counter-claim, action (whether legal or equitable),
appeal or otherwise, whether initiated by Lessor or Lessee (or a debtor-in-possession or bankruptcy
trustee), which arises out of, under, or is related in any way to this Lease Agreement, any Lease
Schedule, or any other document, agreement or instrument executed pursuant hereto or in connection
herewith, or any governmental examination or investigation of Lessee, which requires Lessor’s
participation (individually and collectively, the “Claim”), Lessee, in addition to all other sums
which Lessee may be called upon to pay under the provisions of this Lease Agreement, shall pay to
Lessor, on demand, all costs, expenses and fees paid or payable in connection with the Claim,
including, but not limited to, attorneys’ fees and out-of-pocket costs, including travel and
related expenses incurred by Lessor or its attorneys.
19. LESSOR’S PERFORMANCE OPTION: Should Lessee fail to make any payment or to do any act as
provided by this Lease Agreement, then Lessor shall have the right (but not the obligation),
without notice to Lessee of its intention to do so and without releasing Lessee from any obligation
hereunder to make or to do the same, to make advances to preserve the Equipment or Lessor’s title
thereto, and to pay, purchase, contest or compromise any insurance premium, encumbrance, charge,
tax, lien or other sum which in the judgment of Lessor appears to affect the Equipment, and in
exercising any such rights, Lessor may incur any liability and expend whatever amounts in its
absolute discretion it may deem necessary therefor. All sums so incurred or expended by Lessor
shall be due and payable by Lessee within ten (10) days of notice thereof.
20. QUIET POSSESSION AND INSPECTION: Lessor hereby covenants with Lessee that Lessee shall quietly
possess the Equipment subject to and in accordance with the provisions hereof so long as Lessee is
not in default hereunder; provided, however, that Lessor or its designated agent may, at any and
all reasonable times during business hours, enter Lessee’s premises for the purposes of inspecting
the Equipment and the manner in which it is being used.
21. ASSIGNMENTS: This Lease Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Lessee, however, shall not assign this
Lease Agreement or sublet any of the Equipment without first obtaining the prior written consent of
Lessor and its assigns, if any, which shall not be unreasonably withheld. Lessee acknowledges that
the terms and conditions of this Lease Agreement have been fixed in anticipation of the possible
assignment of Lessor’s rights under this Lease Agreement and in and to the Equipment as collateral
security to a third party (“Assignee” herein) which will rely upon and be entitled to the benefit
of the provisions of this Lease Agreement. Lessee agrees to provide Lessor or its potential
assigns with Lessee’s most recent audited and its most current financial statements. Lessee agrees
with Lessor and such Assignee to recognize in writing any such assignment within fifteen (15) days
after receipt of written notice thereof and to pay thereafter all sums due to Lessor hereunder
directly to such Assignee if directed by Lessor, notwithstanding any defense, set-off or
counterclaim whatsoever (whether arising from a breach of this Lease Agreement or not) that Lessee
may from time to time have against Lessor. Upon such assignment, the Lessor shall remain obligated
to perform any obligations it may have under this Lease Agreement and the Assignee shall (unless
otherwise expressly agreed to in writing by the Assignee) have no obligation to perform such
obligations. Any such assignment shall be subject to Lessee’s rights to use and possess the
Equipment so long as Lessee is not in default hereunder.
22. SURVIVAL OF OBLIGATIONS: All covenants, agreements, representations, and warranties contained
in this Lease Agreement, any Lease Schedule, or in any document attached thereto, shall be for the
benefit of Lessor and Lessee and their successors, any assignee or secured party. Further, all
covenants, agreements, representations, and warranties contained in this Lease Agreement, any Lease
Schedule, or in any document attached thereto, shall survive the execution and delivery of this
Lease Agreement and the expiration or other termination of this Lease Agreement.
23. CORPORATE AUTHORITY: The parties hereto covenant and warrant that the persons executing this
Lease Agreement and each Lease Schedule on their behalf have been duly authorized to do so, and
this Lease Agreement and any Lease Schedule constitute a valid and binding obligation of the
parties hereto. The Lessee will, if requested by Lessor, provide to Lessor, Certificates of
Authority naming the officers of the Lessee who have the authority to execute this Lease Agreement
and any Lease Schedules attached thereto.
24. LANDLORDS’ AND MORTGAGEES’ WAIVER: If requested, Lessee shall furnish waivers, in form and
substance satisfactory to Lessor, from all landlords and mortgagees of any premises upon which any Equipment
is located.
25. MISCELLANEOUS: This Lease Agreement, the Lease Schedule(s), attached riders and any documents
or instruments issued or executed pursuant hereto will have been made, executed and delivered in,
and shall be governed by the internal laws (as opposed to conflicts of law provisions) and
decisions of, the State of Minnesota. Lessee and Lessor consent to jurisdiction of any local,
state or federal court located
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within Florida. Venue shall be in Florida. At Lessor’s sole
election and determination, Lessor may select an alternative forum, including arbitration or
mediation, to adjudicate any dispute arising out of this Lease Agreement. THE PARTIES HERETO,
AFTER CONSULTING (OR HAVING HAD AN OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS
LEASE, INCLUDING ANY LITIGATION REGARDING THE ENFORCEMENT OF THIS LEASE OR ANY RELATED AGREEMENT.
This Lease Agreement was jointly drafted by the parties, and the parties hereby agree that
neither should be favored in the construction, interpretation or application of any provision or
any ambiguity. There are no unwritten or oral agreements between the parties. This Lease
Agreement and associated Lease Schedule(s) constitute the entire understanding and agreement
between Lessor and Lessee with respect to the lease of the Equipment superseding all prior
agreements, understandings, negotiations, discussions, proposals, representations, promises,
commitments and offers between the parties, whether oral or written. No provision of this Lease
Agreement or any Lease Schedule shall be deemed waived, amended, discharged or modified orally or
by custom, usage or course of conduct unless such waiver, amendment or modification is in writing
and signed by an officer of each of the parties hereto. If any one or more of the provisions of
this Lease Agreement or any Lease Schedule is for any reason held invalid, illegal or
unenforceable, the remaining provisions of this Lease Agreement and any such Lease Schedule will be
unimpaired, and the invalid, illegal or unenforceable provisions shall be replaced by a mutually
acceptable valid, legal and enforceable provision that is closest to the original intention of the
parties. Lessee agrees that neither the manufacturer, nor the supplier, nor any of their
salespersons, employees or agents are agents of Lessor.
Any notice provided for herein shall be in writing and sent by certified or registered mail to
the parties at the addresses stated on page 1 of this Lease Agreement.
This Lease Agreement shall not become effective until delivered to Lessor at its offices at
Minnetonka, Minnesota and executed by Lessor. If this Lease Agreement shall be executed by
Lessor prior to being executed by Lessee, it shall become void at Lessor’s option five (5) days
after the date of Lessor’s execution hereof, unless Lessor shall have received by such date a copy
hereof executed by a duly authorized representative of Lessee.
This Lease Agreement is made subject to the terms and conditions included herein and Lessee’s
acceptance is effective only to the extent that such terms and conditions are consistent with the
terms and conditions herein. Any acceptance which contains terms and conditions which are in
addition to or inconsistent with the terms and conditions herein will be a counter-offer and will
not be binding unless agreed to in writing by Lessor.
The terms used in this Lease Agreement, unless otherwise defined, shall have the meanings
ascribed to them in the Lease Schedule(s).
26. REPOSSESSION: LESSEE ACKNOWLEDGES THAT, PURSUANT TO SECTION 17 HEREOF, LESSOR HAS BEEN GIVEN
THE RIGHT TO REPOSSESS THE EQUIPMENT SHOULD LESSEE BECOME IN DEFAULT OF ITS OBLIGATIONS HEREUNDER.
LESSEE HEREBY WAIVES THE RIGHT, IF ANY, TO REQUIRE LESSOR TO GIVE LESSEE NOTICE AND A JUDICIAL
HEARING PRIOR TO EXERCISING SUCH RIGHT OF REPOSSESSION.
27. NET LEASE: This Lease Agreement is a net lease and Lessee’s obligations to pay all Lease
Charges and other amounts payable hereunder shall be absolute and unconditional and, except as
expressly provided herein, shall not be subject to any: (i) delay, abatement, reduction, defense,
counterclaim, set-off, or recoupment; (ii) discontinuance or termination of any license; (iii)
Equipment failure, defect or deficiency; (iv) damage to or destruction of the Equipment; or (v)
dissatisfaction with the Equipment or otherwise, including any present or future claim against
Lessor or the manufacturer, supplier, reseller or vendor of the Equipment. To the extent that the
Equipment includes intangible (or intellectual) property, Lessee understands and agrees that: (i)
Lessor is not a party to and does not have any responsibility under any software license and/or
other agreement with respect to any software; and (ii) Lessee will be responsible to pay all of the
Lease Charges and perform all its other obligations under this Lease Agreement despite any defect,
deficiency, failure, termination, dissatisfaction, damage or destruction of any software or
software license. Except as expressly provided herein, this Lease Agreement shall not terminate
for any reason, including any defect in the Equipment or Lessor’s title thereto or any destruction
or loss of use of any item of Equipment.
28. HEADINGS: Section headings herein are used for convenience only and shall not otherwise affect
the provisions of this Lease Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to be signed by their
respective duly authorized representative.
| Every Term is Agreed to and Accepted: | Every Term is Agreed to and Accepted: | |||||
| FARNAM STREET FINANCIAL, INC. | NATIONSHEALTH, INC. | |||||
By:
|
/s/ Xxxxxx X. Xxxxxx | By: | /s/ Xxxxxxx Xxxxxxxxx | |||
Print
|
||||||
Name:
|
Xxxxxx X. Xxxxxx | Name: | Xxxxxxx Xxxxxxxxx | |||
Title:
|
President | Title: | CFO | |||
Date:
|
February 5, 2007 | Date: | 2/1/07 | |||
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