EXHIBIT 10.36
AIRCRAFT SUBLEASE AGREEMENT
THIS AIRCRAFT SUBLEASE AGREEMENT (the "Sublease or Agreement") is dated as
of this 24th day of August 2004, by and between Terayon Communication Systems,
Inc., a Delaware corporation ("Sublessor") and United Furniture Equipment
Rental, Inc., an Ohio corporation ("Sublessee").
RECITALS
WHEREAS, Sublessor has leased that certain Canadair Challenger 604
aircraft, United States Registration Number N881TW; Manufacturer's Serial No.
5348, together with two (2) General Electric CF34-3B engines bearing
manufacturer's serial numbers 872196 and 872198 (the "Engines") (the
"Aircraft"); and
WHEREAS, Sublessor wishes to sublease the Aircraft to the Sublessee, and
the Sublessee wishes to sublease the Aircraft from the Sublessor upon the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, Sublessee and Sublessor agree as follows:
AGREEMENTS
1. Aircraft Subleased. The Sublessor hereby subleases the Aircraft to the
Sublessee and the Sublessee hereby subleases the Aircraft from the Sublessor,
effective as of August [23], 2004 (the "Commencement Date"). The Aircraft
includes the Miscellaneous and Optional Equipment set forth on Exhibit "A"
hereto.
(a) General Electric Capital Corporation Lease. Sublessee
acknowledges that Sublessor has heretofore leased the Aircraft from General
Electric Capital Corporation ("GECC"), all as more particularly set forth in
that certain Aircraft Lease Agreement, as amended (the "GECC Lease") and related
documents between Sublessor and GECC (the "GECC Documents"). A copy of the GECC
Lease is attached hereto as Exhibit "B" and incorporated by reference herein.
Sublessee acknowledges and agrees that Sublessee's rights to the Aircraft, as
herein established, are subject and subordinate to the interests of GECC
pursuant to the GECC Documents, and that the effectiveness of this Sublease is
dependant on Sublessor obtaining the consent of GECC to this Sublease.
(b) Sublessee's Conditions Precedent. Sublessee's obligation to
sublease the Aircraft from Sublessor is conditioned upon the following
conditions having been met (or waived by Sublessee) as follows:
(i) Sublessor delivers the Aircraft on or before August 24, 2004,
unless the delivery is delayed due to work being performed on the Aircraft at
the direction of Sublessee and the Aircraft is in compliance with the
requirements of Sections 5 and 9 of
this Sublease with a U.S. Standard Certificate of Airworthiness, effective on
the date of delivery;
(ii) Sublessee shall have received a certificate executed by the
President of the Sublessor certifying that the stockholders and directors of
Sublessor, as required, have taken all steps necessary to authorize the entry
into and performance by Sublessor of this Sublease and its obligations hereunder
and certifying that the representations and warranties of Sublessor set forth in
this Agreement are true and correct as of the date of delivery;
(iii) On the date of delivery of the Aircraft, the following
statements shall be true and Sublessee shall have received evidence that (A)
GECC has good and valid title to the Aircraft, free and clear of all liens,
claims and encumbrances of every type and nature, (B) the GECC Lease is in full
force and effect and there is no continuing Event of Default under the GECC
Lease and (C) the Aircraft is fully registered in the name of GECC with the
Federal Aviation Administration;
(iv) Sublessee shall have received written evidence of GECC's
consent to this Sublease, including (i) Sublessor's rights with respect to the
Aircraft purchase option under the GECC Lease, and (ii) nondisturbance
provisions acceptable to Sublessee and GECC; and
(v) The MSP and JSSI programs with respect to the Aircraft shall be
in full force and effect without any outstanding amounts or payments due
thereunder from Sublessor and the benefits of such programs shall be available
to Sublessee in accordance with Paragraph 9 hereof.
2. Term of Sublease. The term of this Sublease shall be for a
period of twenty eight (28) months, commencing on the Commencement Date, and
terminating on December 31, 2006 (the "Sublease Term").
3. Rental Payments.
(a) The Sublessee agrees to pay to Sublessor as rent for the use of the
Aircraft the sum of One Hundred Thousand Dollars ($100,000.00) per month during
the Term, subject to the adjustment provided in Paragraph 12 hereof ("Rent").
Rent shall be payable as follows:
(b) Rent shall be paid without deduction or setoff to Sublessor, or at any
other place that may be designated by the Sublessor. Rent shall be payable by
wire transfer on or before the Commencement Date, and thereafter on or before
the 1st business day of each month during the Sublease Term. If delivery date of
the Aircraft is not on the first calendar day of the month, the Rent for month 2
of the Sublease Term shall be reduced by an amount equal to One Hundred Thousand
Dollars ($100,000) Dollars divided by thirty (30) and multiplied by the number
of calendar days in month 1 that have elapsed from and including the first day
of month 1 until the day immediately preceding the date of delivery
2.
of the Aircraft to Sublessee, as evidenced on the Certificate of Acceptance.
The instructions for wire transfers to Sublessor are as follows:
Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
000-000-0000
Routing number:
Swift Code:
For Credit of:
Terayon Communication Systems Inc
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
000-000-0000
Credit Account #:
(c) Notwithstanding anything to the contrary contained in this Sublease,
except as provided in subparagraph 3(d) below and in Paragraph 35 hereof, in the
event that the Sublessor's covenant of quiet enjoyment in Paragraph 24(e) hereof
is breached by Sublessor and Sublessor, or another person claiming by, through
or on behalf of Sublessor, or GECC, deprives Sublessee of the possession and use
of the Aircraft or the Aircraft becomes ineligible for U.S. registration or
Sublessee is otherwise deprived of use or possession of the Aircraft by the
failure of any representation or warranty of Sublessor contained herein to be
true when given or any breach by Sublessor of any covenant or undertaking
contained herein, and Sublessee does not terminate this Agreement pursuant to
Paragraph 22 hereof, Sublessee shall not be required to perform any obligations
imposed on it under this Sublease including but not limited to obligations to
pay Rent or maintain insurance with respect to the Aircraft during the period in
which Sublessee is deprived of use or possession of the Aircraft; provided,
however, if Sublessee retains care, custody and control of the Aircraft during
any such period of ineligibility of U.S. registration or loss of use or
possession of the Aircraft, Sublessee shall (i) only be relieved of the Rent
obligations under this Sublease and all other obligations shall remain in full
force and effect and (ii) cooperate with Sublessor and GECC in good faith and
take such steps, at Sublessor's expense, as are necessary to cause the Aircraft
to be re-registered with the FAA in a manner which does not impose restrictions
on the location or use of the Aircraft or otherwise restrict Sublessee's ability
to operate the Aircraft in the ordinary course of its business or increase its
cost associated therewith. Sublessee shall be entitled to a refund of any Rent
paid in respect of any period during which Sublessee is deprived of use or
possession of the Aircraft directly resulting from the circumstances described
in the preceding sentence.
(d) Notwithstanding the foregoing subparagraph, in the event the FAA
imposes requirements upon the use or operation of the Aircraft which require the
addition of equipment, avionics, or other items during the term of this Sublease
in order for the
3.
Aircraft to be operated in accordance with the Federal Aviation Regulations
during the Sublease Term, then Sublessor agrees to be responsible for up to a
maximum of $100,000 of the cost of installation of such equipment, avionics or
other items. Sublessee shall be responsible for all costs in excess of $100,000,
necessary to meet the requirements imposed by the FAA. If Sublessee does not pay
such excess costs, then Sublessee shall not be entitled to terminate this
Sublease as provided in Paragraph 22 hereof, and shall continue to be obligated
to pay Rent and perform all of its obligations under this Sublease. If Sublessor
fails to pay for the cost of installation of such equipment, avionics or other
items as provided herein after ten (10) days written notice from Sublessee, then
Sublessee shall have the right to set-off such unpaid amounts against the Rent
due to Sublessor up to the maximum amount of $100,000 as provided herein.
(e) Copies of GECC Lease Rent Payments. Concurrently with Sublessor's
quarterly payment of rent to GECC under the GECC Lease, Sublessor shall provide
Sublessee with a copy of each rent check and a copy of the airbill to GECC for
each such payment made by Sublessor to GECC during the Sublease Term.
4. Security Deposit. Sublessee has paid to Insured Aircraft Title Service,
Inc., 0000 X.X. 00xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, Attention Xxxx
Xxxxxx, Telephone (000) 000-0000, Facsimile (000) 000-0000 (the "Escrow Agent"),
the sum of One Hundred Thousand Dollars ($100,000.00) to be held in an interest
bearing escrow account, as a security deposit to secure all obligations of
Sublessee hereunder, and to secure that upon the expiration or earlier
termination of this Sublease, the Aircraft shall be returned to Sublessor in a
condition that conforms in all respects to the "return conditions" for the
Aircraft, as set forth in Paragraph 18 of this Sublease (the "Sublease
Deposit"). Interest shall accrue on the Sublease Deposit for the benefit of the
Sublessee, but shall become a part of the Sublease Deposit available to
Sublessor as provided herein. Sublessor shall have the right to direct the
Escrow Agent to disburse funds from the Sublease Deposit as follows:
(a) If Sublessee fails to pay Rent to Sublessor, after five (5) days
advance written notice to Sublessee and Escrow Agent, Sublessor may demand and
receive payment of the delinquent Rent from Escrow Agent, without any consent of
Sublessee being required; and
(b) If Sublessee fails to pay any of its other financial obligations
under this Sublease when due, and Sublessor makes payment of such obligations on
behalf of Sublessee, then after five (5) days advance written notice to
Sublessee and Escrow Agent, Sublessor may demand and receive payment of the
delinquent amounts from Escrow Agent, without any consent of Sublessee being
required; and
(c) If on return of the Aircraft, whatever the cause, the Aircraft
does not conform to the conditions set forth in Paragraph 18 of this Sublease
and Sublessor is required to incur expense in order to correct such
deficiencies, then Sublessor shall invoice Sublessee for all such expenses. If
Sublessee fails to pay any such invoices when due, after five (5) days advance
written notice to Sublessee and Escrow Agent, then Sublessor
4.
may demand and receive payment from Escrow Agent for such invoices, without any
consent of Sublessee being required. Upon payment of all amounts due to
Sublessor by Sublessee pursuant to this Sublease, Sublessor shall promptly
refund the Sublease Deposit (or balance thereof) to Sublessee, plus any interest
accrued thereon. Sublessor's return of the Deposit to Sublessee within a thirty
(30) day period shall be deemed to be a prompt refund of the Deposit.
If Sublessor is required to use some or all of the Sublease Deposit to pay
any of Sublessee's obligations hereunder, then Sublessee shall deposit an
equivalent sum with the Escrow Agent within ten (10) business days of any such
disbursement to Sublessor. Sublessee's failure or refusal to make any such
additional deposits to the Escrow Agent shall be cause for Sublessor to
terminate this Sublease.
5. Aircraft Delivery; Pre-Delivery Inspection. The Sublessor shall deliver
the Aircraft to the Sublessee on August 24, 2004, or as soon as practical after
the pre-lease inspection and installation of EGPWS, at Columbus, Ohio. On
receipt of the Aircraft, the Sublessee shall execute and deliver to Sublessor a
receipt evidencing delivery and acceptance of the Aircraft in the form attached
hereto as Exhibit "C". Sublessee shall have the right, at its sole cost and
expense, to conduct an industry standard pre-delivery inspection of the
Aircraft, the scope of which shall be defined by Sublessee. The scope of the
pre-delivery inspection shall be subject to the prior approval of Sublessor.
Sublessee shall use its commercially reasonable best efforts to cause the
pre-delivery inspection to be scheduled and completed so as not to delay the
delivery date of the Aircraft as set forth herein. Prior to delivery to
Sublessee, Sublessor shall, at its sole cost and expense, correct any Aircraft
discrepancies determined during the pre-delivery inspection to be "unairworthy"
or any Aircraft systems, equipment or accessories not operating normally and
within the manufacturer's specifications (collectively, the "Pre-Delivery
Discrepancies"). In the event Sublessee completes the pre-delivery inspection
but Sublessor elects to not correct the Pre-Delivery Discrepancies in accordance
with this Paragraph 5, Sublessor shall promptly notify Sublessee in writing and
reimburse Sublessee for the cost of the pre-delivery inspection. Thereafter,
this Agreement shall terminate and neither party shall have any further
obligation to the other.
6. Sublessee's Operations. At all times during the Term of this Sublease,
Sublessee shall have complete and absolute "operational control" of the Aircraft
and shall maintain "possession, command and control" of the Aircraft (as
determined by the Internal Revenue Service) pursuant to this Sublease.
"Operational control" as defined in 14 C.F.R. Paragraph 1.1 and for the purpose
of this Agreement, with respect to a flight, means the exercise of authority
over initiating, conducting or terminating a flight. Sublessee represents and
warrants that its operation of the Aircraft shall not be "predominantly" outside
of the United States, as defined in Section 168(g)(10)(A) of the Internal
Revenue Code of 1986, as amended. Sublessee shall defend, indemnify, and hold
Sublessor, and its officers, directors, partners, employees, shareholders, and
affiliates, harmless from any and all liabilities, claims, demands, suits,
causes of action, losses, penalties, fines, expenses (including without
limitation attorney's fees and costs) or damages, relating to or arising
5.
out of Sublessee's breach of the representations and warranties contained in
this Paragraph 6.
7. Net Sublease; Operating Expenses. Sublessor and Sublessee agree that
this is a net Sublease. Thus, in addition to the Rent payable pursuant to
Xxxxxxxxx 0, Xxxxxxxxx shall pay all costs related to Sublessee's flights,
including, but not limited to, fuel and other lubricant expenses, landing or
departure fees, hangar rental, tie down fees, pilot compensation, lodging,
subscriptions, and travel expenses, catering, and any and all other expenses
incurred as a result of Sublessee's possession or use of the Aircraft.
8. Storage and Maintenance. During the Sublease Term, Sublessee shall use
its best efforts to store the Aircraft in covered hangar facilities. During the
Sublease Term, Sublessee shall maintain the Aircraft, including the airframe,
Engines, instruments, equipment, appliances and accessories in (i) fully
operable condition, (ii) in compliance with all applicable maintenance and
safety requirements of the FAA and the manufacturer's computerized aircraft
maintenance program ("CIMMS") as well as Chapter 5 of the manufacturer's
maintenance manual (the "Maintenance Manual"), and (iii) in full compliance with
the maintenance provisions contained in Section 7 of the GECC Lease. All
maintenance and repair work shall be performed by personnel duly certified to
perform such work by the FAA. All such work shall be performed in accordance
with minimum standards of the FAA and in accordance with standards set forth in
the Maintenance Manual, and Section 7 of the GECC Lease. The costs of scheduled
maintenance events and the replacement of life limited components shall be
reasonably prorated with the portion used or consumed during the Sublease Term
paid by the Sublessee and the balance paid by the Sublessor. The costs of
unscheduled maintenance events occurring during the Sublease Term shall be paid
for by Sublessee. Sublessor shall cause the Aircraft's APU to be enrolled in a
MSP program, the monthly cost of which shall be paid by Sublessee. The
Aircraft's Engines are to remain enrolled on the Jet Support Systems
International ("JSSI") program, and the JSSI hourly cost for each Engine during
the Sublease Term shall be paid by Sublessee. Sublessor shall notify JSSI and
Honeywell of the existence of this Sublease, and that Sublessee shall be
entitled to the benefits of the MSP and JSSI programs during the Sublease Term.
If Engine maintenance is required during the Sublease Term, any such cost not
paid by JSSI shall be paid by Sublessor, unless caused by the negligence, abuse
or misconduct of Sublessee. Sublessor shall make available to Sublessee the
benefits of all manufacturer, vendor and repair facility warranties relating to
the Aircraft or any part thereof to the extent permitted by the terms of such
warranties.
9. Alterations/Improvements. Upon (i) the execution of this Sublease by
both Sublessor and Sublessee, (ii) Sublessor's receipt of GECC's consent to this
Sublease, and (iii) confirmation from the Escrow Agent of receipt of the
Sublease Deposit, Sublessor shall, at its sole cost and expense, cause the
Gulfstream Service Center in Dallas, Texas, or such other Service Center
selected by Sublessor, to install an Enhanced Ground Proximity Warning System
("EGPWS") in the Aircraft prior to the Commencement Date.
(a) Sublessor agrees that Sublessee may paint the Aircraft, provided
(i) the paint work shall be performed by a Service Center approved in writing by
Sublessor, (ii)
6.
Sublessor shall be responsible to reimburse Sublessee for up to a maximum of
$50,000 of the cost to paint the Aircraft, and Sublessee shall be responsible
for all remaining costs and expenses of the paint work, (iii) the paint scheme
chosen by Sublessee shall be approved in writing in advance by GECC, (iv) the
approved paint work shall be completed prior to the expiration or earlier
termination of the Sublease Term, unless Sublessee exercises its purchase option
pursuant to Paragraph 19 hereof, in which case the Sublessor will pay Sublessee
$50,000 towards the cost of new paint to be completed by Sublessee. In this
respect, Sublessee shall open a work order with the Service Center for its
account to pay all costs and expenses of the paint work. The approved paint work
performed pursuant to the work order shall (i) become a part of the Aircraft,
(ii) and shall become the property of Sublessor. If Sublessor fails to reimburse
Sublessee for the cost of such paint work as provided herein after ten (10) days
written notice from Sublessee, then Sublessee shall have the right to set-off
such unpaid amount against the Rent due to Sublessor up to the maximum amount of
$50,000 as provided herein.
(b) Sublessee shall be entitled from time to time during the
Sublease Term to acquire and install on the Aircraft at Sublessee's expense, any
additional accessory, device or equipment as Sublessee may desire (each such
accessory, device or equipment, an "Addition"), but only so long as such
Addition (i) is ancillary to the Aircraft; (ii) is not required to render the
Aircraft complete for its intended use by Sublessee; (iii) does not alter or
impair the originally intended function or use of the Aircraft; and (iv) can be
readily removed without causing material damage. Title to each Addition which is
not removed by Sublessee prior to the return of the Aircraft to Sublessor shall
vest in Sublessor upon such return. Sublessee shall repair all damage to the
Aircraft resulting from the installation or removal of any Addition so as to
restore the Aircraft to its condition prior to installation, ordinary wear and
tear excepted.
(c) Except as otherwise provided herein, the Sublessee shall make no
other change or alteration to the Aircraft without first submitting in writing a
full description of the proposed change and obtaining prior written approval of
the proposed change from the Sublessor. The Sublessor may withhold approval of
any such proposed change or alteration in its sole and absolute discretion. Any
approved work performed shall (i) become a part of the Aircraft, (ii) and shall
become the property of Sublessor.
10. Conduct of Flight Operations. The Aircraft shall be operated at all
times in full compliance with applicable rules, regulations, and requirements of
the United States Department of Transportation, the FAA, and other federal,
state, local and foreign regulations, and the Sublessee shall be responsible for
any fines, penalties, or forfeitures occasioned by any violation of such
regulations. Sublessee may operate the Aircraft only for the purposes and within
the geographical limits set forth in the insurance policy or policies obtained
in compliance with Paragraph 12 of this Agreement. Sublessee shall operate the
Aircraft at all times in accordance with the flight manual, and all
manufacturers' suggested operating procedures. Subject to the restrictions set
forth herein, the Aircraft may be operated anywhere in the world, except that
the Aircraft shall not be operated knowingly within the borders of any country
with known national interests hostile to the United States of America. Subject
to the prior written consent of GECC and
7.
Sublessor, Sublessee shall have the right to place the Aircraft on AirNet's (or
other GECC approved charter operator's) FAR Part 135 Certificate for use in
charter operations, so long as throughout the Sublease Term, the Aircraft is
predominately based and operated within the United States of America. Except as
provided herein, under no circumstances shall Sublessee charter, sublease or
otherwise make the Aircraft available for use by any other person or entity
without Sublessor's consent, which may be withheld in Sublessor's sole and
absolute discretion and GECC's consent.
11. Liens. The Sublessee shall be liable for and is required to discharge
promptly any liens, claims, or demands that may attach to the Aircraft in
connection with, or as a result of, the Sublessee's operation, repair,
maintenance, or storage of the Aircraft, other than those which result from (i)
the respective rights of Sublessor and Sublessee as herein provided; (ii) liens
arising from the acts of Sublessor; (iii) liens for taxes not yet due; and (iv)
inchoate materialmen's, mechanics', workmen's, repairmen's, employees' or other
like liens arising in the ordinary course of business of Sublessee for sums not
yet delinquent or being contested in good faith (and for the payment of which
adequate assurances in Sublessor's judgment have been provided Sublessor). In
the event any such liens are filed against the Aircraft and not removed within
ten (10) days thereafter, Sublessor shall have the right to demand and receive
payment from the Escrow Agent of an amount equal to such lien for payment
thereof, without any consent of Sublessee being required. However, the Sublessee
shall not be responsible for any liens, claims, or demands resulting from any
act or omission of the Sublessor. Sublessor represents and warrants that it has
not heretofore taken any action or omitted to take any action which would result
or permit the imposition of any hangarkeeper's, mechanic's or materialman's lien
or encumbrance on the Aircraft, other than any security interest associated with
the GECC lease, and in particular, Sublessor has not taken any action or omitted
to take any action which would permit the imposition of any lien under, inter
alia, California Code of Civil Procedure Section 1208.61 et., seq., California
Civil Code Section 2782 et, seq., or Section 3051, or California Business and
Professions Code Section 9792 or 9798.1 et., seq.
12. Insurance. In consideration of Sublessee's anticipated use and
operation of the Aircraft, Sublessee shall have the option to either (i) pay the
cost to maintain the Aircraft hull and liability insurance currently maintained
by Sublessor, or (ii) provide replacement hull and liability insurance for the
Aircraft, with liability limits equal to or greater than the current insurance
($200,000,000), with deductibles and other terms, and with an insurance carrier,
reasonably acceptable to Sublessor and GECC. Any replacement insurance policy
obtained by Sublessee must be approved in writing by Sublessor, shall name
Sublessor as an additional insured, and shall conform, in all respects, to the
insurance requirements set forth in the GECC Lease. Sublessor and Sublessee
acknowledge and agree that the GECC Lease requires that the Aircraft hull
insurance coverage at all times equal the Capitalized Lessor's Cost of the
Aircraft as specified in Annex F of the GECC Lease. The parties further
acknowledge that the Capitalized Lessor's Cost of the Aircraft is presently
$19,500,000. Accordingly, Sublessee shall insure the hull of the Aircraft for
not less than $19,500,000 throughout the Sublease Term, provided however, that
Sublessee shall be entitled to deduct from the payment of Rent each month an
amount equal to l/12th
8.
of 3.5/19.5ths of the annual premium for such hull coverage throughout the
Sublease Term.
In the event of damage to the Aircraft to an extent less than total
destruction, the Sublessee is required, during the period of repair, to continue
paying Rent hereunder. However, in the event of a total loss, or damage to the
Aircraft beyond economical repair as determined by the insurance carrier or
carriers furnishing the insurance covering damage to the Aircraft, this Sublease
shall terminate, and the Sublessee shall be relieved of any further obligation
to pay Rent hereunder. In the event of a partial destruction of the Aircraft,
the proceeds from the insurance shall be paid to the Sublessee, and such
proceeds shall be used to repair the Aircraft. Otherwise, the insurance proceeds
shall be paid to the Sublessor, and Sublessor shall, at its sole option, use
such proceeds to repair or replace the Aircraft.
13. Aircraft Management. Concurrent with the execution of this Sublease,
Sublessee shall engage AirNet ("AirNet"), or such other management company
reasonably acceptable to Sublessor and GECC, to manage the operation of the
Aircraft at all times during the Sublease Term. Such management shall include,
but not be limited to, the provision of oversight in connection with all
scheduled and unscheduled maintenance of the Aircraft.
14. Pilots; Pilot Qualifications. At all times during the Sublease Term,
Sublessee shall be responsible for obtaining qualified pilots to operate the
Aircraft for Sublessee's use, all of whom shall meet or exceed the pilot
warranty provisions of the aircraft insurance policy and shall be approved by
the insurance carrier. Sublessee shall have the responsibility to ascertain that
any pilots selected meet the criteria established by the insurer of the
Aircraft. Such pilots shall also be subject to review and approval of both
AirNet, or such other management company reasonably acceptable to Sublessor, and
Sublessor, prior to conducting any flights of the Aircraft.
15. Accidents; Incidents and Losses. Sublessee shall immediately notify
Sublessor, or Sublessor's designated agent, of any accident or incident
involving the Aircraft, which notification shall specify, to the extent known,
the time, place, and nature of the accident, incident or damage, the names and
addresses of all parties involved, persons injured, witnesses, passengers, and
owners of properties damaged, and such other information as may be known about
the accident, incident or damage. Sublessor and Sublessee shall advise each
other of all correspondence, papers, notices, and documents whatsoever received
by them in connection with any claim or demand involving or relating to the
Aircraft or its operation, and shall aid in any investigation instituted and in
the recovery of damages from third persons liable therefor.
16. INDEMNIFICATION. SUBLESSEE AGREES TO INDEMNIFY, DEFEND AND HOLD
HARMLESS SUBLESSOR AND ITS OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES,
SHAREHOLDERS, ATTORNEYS, AGENTS AND AFFILIATES, FROM ANY CLAIM, DAMAGE, LOSS, OR
REASONABLE EXPENSE, INCLUDING ANY INSURANCE DEDUCTIBLE, AND REASONABLE
ATTORNEY'S FEES RESULTING FROM ANY BODILY INJURY OR PROPERTY DAMAGE CAUSED BY AN
OCCURRENCE AND ARISING OUT OF OR IN
9.
CONNECTION WITH SUBLESSEE'S POSSESSION, USE, STORAGE, OPERATION OR MAINTENANCE
OF THE AIRCRAFT DURING THE SUBLEASE TERM, UNLESS CAUSED BY THE WILLFUL AND
INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF SUBLESSOR, ITS EMPLOYEES AND
AGENTS.
IN NO EVENT SHALL SUBLESSOR BE LIABLE FOR OR HAVE ANY DUTY FOR
INDEMNIFICATION OR CONTRIBUTION TO SUBLESSEE FOR ANY CLAIMED INDIRECT, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR ANY DAMAGES CONSISTING OF DAMAGES FOR
LOSS OF USE OF THE AIRCRAFT, DIMINUTION IN VALUE, OR LOSS OF PROFIT.
SUBLESSEE ALSO WAIVES ANY SIMILAR PROVISIONS PROVIDED UNDER ANY OTHER
STATE OR FEDERAL LAW.
17. DISCLAIMER. EXCEPT FOR THE WARRANTIES SET FORTH IN PARAGRAPH 24 OF
THIS SUBLEASE, THE AIRCRAFT AND EACH PART THEREOF IS BEING SUBLEASED HEREUNDER
IN ITS "AS IS, WHERE IS" CONDITION, WITHOUT ANY REPRESENTATION, WARRANTY OR
GUARANTEE OF ANY KIND BEING MADE OR GIVEN BY SUBLESSOR, ITS DIRECTORS,
SHAREHOLDERS, OFFICERS, AFFILIATES, PARTNERS, AGENTS, EMPLOYEES, ATTORNEYS AND
ASSIGNS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE (INCLUDING STRICT
LIABILITY IN TORT) AND SUBLESSOR DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS. SUBLESSEE HEREBY WAIVES ANY
CLAIM (INCLUDING, WITHOUT LIMITATION, INCIDENTAL OR CONSEQUENTIAL DAMAGE) OR
EXPENSE CAUSED BY THE AIRCRAFT OR BY SUBLESSEE'S LOSS OF USE THEREOF FOR ANY
REASON WHATSOEVER, EXCEPT FOR ANY CLAIM ARISING OUT OF THE WARRANTIES SET FORTH
IN PARAGRAPH 24 HEREIN. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND
EXCEPT AS RESPECTS THE WARRANTIES OF PARAGRAPH 24, SUBLESSOR SHALL NOT BE LIABLE
OR RESPONSIBLE FOR ANY DEFECTS, EITHER PATENT OR LATENT IN THE AIRCRAFT, OR FOR
ANY DIRECT OR INDIRECT DAMAGE TO PERSONS OR PROPERTY RESULTING THEREFROM, OR FOR
SUBLESSEE'S LOSS OF USE OF THE AIRCRAFT OR FOR ANY INTERRUPTION IN SUBLESSEE'S
BUSINESS CAUSED BY SUBLESSEE'S INABILITY TO USE THE AIRCRAFT FOR ANY REASON
WHATSOEVER.
18. Return on Termination/Expiration. On the expiration or earlier
termination of this Sublease whatever the cause, the Sublessee agrees to return
the Aircraft to the Sublessor at the San Xxxx International Airport, or at such
other place as mutually acceptable to Sublessor and Sublessee. Sublessee
covenants and agrees that it shall, at Sublessee's sole cost and expense (i)
return the Aircraft to Sublessor in the same condition as received at the time
of delivery, normal wear and tear excepted, (ii) return the Aircraft to
Sublessor in full compliance with each of the following at Sublessee's sole cost
and expense: (a) correction of all airworthiness discrepancies identified during
the 24 month
10.
inspection on the Aircraft, which inspection shall be arranged and paid for by
Sublessor, (b) ensure that each Engine is paid up in full for the hours of usage
by Sublessee during the term of the Sublease Agreement on JSSI, and the APU is
paid up in full on MSP, (c) ensure that the Aircraft is airworthy, with all
systems, equipment, and accessories operating normally according to the
manufacturer's specifications, (d) ensure that all maintenance on the Aircraft
is current, with all due items complied with according to the manufacturer's
recommended maintenance procedures as outlined in CIMMS, and all manuals and
equipment installed on the Aircraft shall be up to date and current per the
latest revisions. The Sublessee covenants and agrees that it will, upon
expiration or earlier termination of this Sublease, return the Aircraft to the
Sublessor with the identical equipment, Engines and Auxiliary Power Unit that
were on the Aircraft at delivery to Sublessee save and except as otherwise
herein provided. The Sublessee agrees that it will, if requested, supply the
Sublessor with an FAA Standard Certificate of Airworthiness dated immediately
prior to the return of the Aircraft.
19. Option to Purchase Aircraft. Provided that Sublessee is not in default
under this Sublease, then Sublessee shall have the option to purchase the
Aircraft at the expiration of the Sublease Term pursuant to the terms and
conditions of Section 19 of the GECC Lease at the Aircraft's then fair market
value. Sublessee may exercise the option by providing written notice to
Sublessor at least one hundred and ten (110) days, but not more than one hundred
and eighty (180) days, prior to the date of expiration of the Sublease Term. In
the event that Sublessee fails to timely exercise the option as provided herein,
then the option shall automatically expire, and shall be of no force and effect.
Prior to the Commencement Date of this Sublease, Sublessor shall obtain GECC's
consent to Sublessor's assignment to Sublessee of its option to purchase the
Aircraft pursuant to Section 19 of the GECC Lease.
20. Assignment and Sublease. Except as provided in Paragraph 10 of this
Sublease, the Sublessee shall not assign this Sublease, nor shall the Sublessee
charter, sublease or otherwise allow the Aircraft to be used by third parties,
without the prior written consent of the Sublessor, which consent may be
withheld in Sublessor's sole and absolute discretion, and GECC.
21. Taxes. The Sublessee agrees to pay all taxes, interest and penalties,
if any, accruing to the Sublessee as operator of the Aircraft, and the Sublessee
agrees to defend, indemnify and hold the Sublessor and its officers, directors,
partners, employees, shareholders, and affiliates, harmless from any claim or
losses as the result of the imposition of any such taxes; provided, however,
that the Sublessee shall not be responsible for any taxes attributable to the
period, or any event occurring, prior to the delivery of the Aircraft to
Sublessee (including personal property ad velorem taxes relating to the Aircraft
or any part thereof for the calendar or tax year 2004, including any California
taxes assessed as a result of the Sublessor's domicile or Aircraft's previous
base in California or for any income, franchise, or other taxes imposed on
Sublessor, or any California sales or use taxes that may be imposed on the Rent
which taxes shall be the obligation of the Sublessor. On the Commencement Date,
Sublessee shall execute and deliver to Sublessor a California Use Tax Exemption
Certificate in a form acceptable to
11.
Sublessor. In the event that property taxes for the Aircraft for tax years with
a lien date arising prior to the Commencement Date are claimed by the County of
Santa Clara, California, Sublessor shall be solely responsible for such property
taxes. Sublessee shall be responsible for all other property taxes arising out
of its use and operation of the Aircraft during the Sublease Term.
(a) Contests. If claim is made against Sublessor for taxes with
respect to which Sublessee is liable for a payment or indemnity under this
Sublease, Sublessor will promptly give Sublessee notice in writing of such
claim; provided, however, that Sublessor's failure to give notice will not
relieve Sublessee of its obligations hereunder unless such failure materially
impairs or precludes Sublessee's ability to contest the claim. So long as (i) a
contest of such taxes does not involve any material risk of the sale, forfeiture
or loss of the Aircraft or any interest therein, (ii) if Sublessor or GECC so
requests, Sublessee has provided Sublessor and GECC with an opinion of
independent tax counsel that a reasonable basis exists for contesting such
claim, and (iii) adequate reserves have been made for such taxes or, if
required, an adequate bond has been posted, then Sublessor, at Sublessee's
written request, will in good faith, with due diligence and at Sublessee's
expense, permit Sublessee to contest (in the name of Sublessee or Sublessor) the
validity, applicability or amount of such taxes.
(b) Refunds. Upon receipt by Sublessor of a refund of all or any
part of any taxes that Sublessee has paid, Sublessor will promptly pay to
Sublessee the amount of such taxes refunded.
(c) Cooperation in Filing Tax Returns. Sublessee and Sublessor will
cooperate with one another in providing information which may be reasonably
required to fulfill each party's tax filing requirements and any audit
information request arising from such filing.
22. Default. Except with respect to the payment of Rent, in the event that
either party is in default of any of the covenants or agreements contained in
this Sublease, the party not in default shall give the party in default notice
of the default and shall have the option of terminating this Sublease if the
default is not cured within ten (10) days after the party in default receives
the notice. In the event of a default in the payment of Rent, the Sublessee
shall have five (5) days after notice from the Sublessor within which to cure
the default. If such default is not cured within such five (5) day period, the
Sublessor may immediately terminate the Sublease, demand and receive payment of
the Rent due as of the date of termination from the Sublease Deposit per
Paragraph 4 herein, and pursue all such other legal remedies as may be available
to the Sublessor.
12.
23. Notices. Any notice to be given under this Sublease shall be addressed
as follows:
To the Sublessor: Terayon Communication Systems, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Facsimile No.: (000)-000-0000
Confirming No.: (000)-000-0000
Attn: Xxxxxxx Xxxxxx
With a Copy To: Groom & Cave, LLP
0000 Xxx Xxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Facsimile No.: (000)000-0000
Confirming No.: (000)000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
To the Sublessee: United Furniture Equipment Rental, Inc.
0000 X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Facsimile No.:
Confirming No.:
Email
Attn: Xxxxx Xxxxxxx, President
With a Copy To: Powell, Goldstein, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000)000-0000
Confirming No.: (000)000-0000
Attn: Xxx X. Xxxxxxxxx, Esq.
or to such other address as either party may designate to the other in writing,
pursuant to the notice provisions of this Paragraph 23. Any such notice shall
have been deemed duly given (i) three days after such notice is enclosed in a
properly sealed envelope, addressed as aforesaid, registered or certified mail,
and deposited (postage and registry or certificate fee prepaid) in the United
States Mail, (ii) when actually delivered by hand, or (iii) when actually
delivered by any nationally recognized overnight courier service.
24. Warranties. The Sublessor represents, covenants and warrants to the
Sublessee as follows:
(a) The Sublessor has been issued a Standard Certificate of
Airworthiness for the Aircraft by the FAA, and the Aircraft shall be in an
airworthy condition as of the Commencement Date.
13.
(b) The Sublessor has complied with all applicable laws,
regulations, and requirements of all governmental authorities pertaining to a
sublease of the Aircraft to the Sublessee and no consent of any third party is
required except as such as has already been obtained. This Agreement and the
performance by Sublessor of its obligations thereunder have been duly
authorized, executed and delivered by Sublessor and constitute valid, legal and
binding agreements, enforceable against Sublessor in accordance with their
terms, except to the extent that the enforcement of remedies may be limited
under applicable bankruptcy and insolvency laws.
(c) The Sublessor shall perform all of its obligations to GECC under
the GECC Lease. The entry into and performance by Sublessor of this Agreement
will not: (i) violate any judgment, order, law or regulation applicable to
Sublessor or any provision of Sublessor's Certificate of Incorporation or
Bylaws; or (ii) result in any breach of, constitute a default under or result in
the creation of any lien, charge, security interest or other encumbrance upon
the Aircraft pursuant to any indenture, mortgage, deed of trust, bank loan or
credit agreement or other instrument to which Sublessee is a party.
(d) Sublessor shall not take any actions during the Sublease term
which might interfere with the ability of the Aircraft to remain, without
interruption, fully registered with the FAA without restriction under 49 U.S.C.
subtitle VII, as amended, or any successor statute thereto. If Sublessor
interferes with the registration of the Aircraft with the FAA per the preceding
sentence, Sublessee shall have the right to terminate this Sublease upon giving
notice thereof to Sublessor as provided in Paragraph 22 hereof, and Sublessor
shall, whether or not Sublessee exercises such right of termination, be liable
to Sublessee for any damages suffered by Sublessee as the result of such failure
of registration.
(e) Sublessor shall not, and shall not permit any third party acting
by or through Sublessor, to interfere with Sublessee's quiet possession and
enjoyment of the Aircraft or otherwise interfere with Sublessee's exercise of
its rights hereto unless a default by Sublessee has occurred and is not cured in
accordance with Paragraph 22 hereof.
25. Personal Guaranty of Sublessee's Obligations. All of Sublessee's
financial and other obligations under this Sublease shall be guaranteed by the
Personal Guaranty of Xxxxx Xxxxxxx in the form attached hereto as Exhibit "D."
The Personal Guaranty shall be executed and delivered to Sublessor
simultaneously with the execution and delivery of this Sublease.
26. Entire Agreement. This Agreement cannot be changed orally and
constitutes the entire contract between Sublessor and Sublessee hereto. It shall
not be modified nor changed by any expressed or implied promises, warranties,
guarantees, representations or other information unless expressly and
specifically set forth in this Agreement or any addendum thereto properly
executed by Sublessor and Sublessee.
14.
27. Delays or Omissions; Cumulative Rights. No delay or omission to
exercise any right, power or remedy accruing upon any breach, default or
noncompliance under this Agreement shall impair any such right, power or remedy,
nor shall it be construed to be a waiver of any such breach, default or
noncompliance, or any acquiescence thereof or of any similar breach, default or
noncompliance thereafter occurring. It is further agreed that any waiver,
permit, consent, or approval of any kind or character of any breach, default or
noncompliance under this Agreement, or any waiver of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All rights and remedies,
either under this Agreement, by law, in equity or otherwise, shall be cumulative
and not alternative, and the exercise of any right or remedy shall be without
prejudice to the enforcement of any other right or remedy.
28. Status of the Parties. Nothing herein shall be construed to create a
partnership, joint venture, franchise, employer-employee relationship or to
create any relationship of principal and agent, but rather the relationship of
the parties shall be that of Sublessor and Sublessee of personal property. No
party shall have the authority to commit or bind any other party without such
party's prior written consent.
29. Attorneys' Fees. If any action (whether legal or equitable and whether
litigation, arbitration or some other proceeding, including an action for
declaratory relief, enforcement of judgments or any appeals) is commenced under
this Agreement, the prevailing party (as shall be determined by the court or
other adjudicator) shall be entitled to recover its reasonable attorneys' fees
and costs of suit from the other party in addition to such other relief as may
be granted.
30. Binding Effect. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns. Neither this Agreement nor
any right hereunder may be assigned by Sublessee without the prior written
consent of the Sublessor, which consent may be withheld in Sublessor's sole and
absolute discretion.
31. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to agreements
made and to be performed entirely within the State of California. The proper
venue for any action or other proceeding shall be Santa Xxxxx County,
California.
32. Counterparts. This Agreement may be executed in any number of
counterparts, each of which for all purposes shall be deemed to be an original,
but all of such counterparts shall together constitute one and the same
instrument; but in making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart. It is not necessary that
each party hereto execute the same counterpart, so long as identical
counterparts are executed by all parties.
33. Captions. The captions used in this Agreement are for convenience only
and do not in any way affect, limit, amplify or modify the terms and provisions
hereof.
15.
34. Waivers. Any consent to any assignment or sublease, or any waiver of
any provision of this Agreement or of any default of the Sublessee, shall not
constitute a waiver of any other provision of this Agreement.
35. Force Majeure. Neither Sublessee nor Sublessor shall have liability
for, and neither Sublessee nor Sublessor shall be in default under this Sublease
as a result of, any delay or failure to perform their respective obligations as
contemplated by this Sublease when such delay or failure is caused by Force
Majeure as defined below. For purposes of this Sublease, "Force Majeure" shall
mean an act of God, strike or lockout or other labor dispute, act of the public
enemy, war (declared or undeclared), blockade, revolution, civil commotion,
terrorist activity, lightning, fire, storm, flood, earthquake, explosion,
governmental restraint, embargo, grounding of the Aircraft, inability to obtain
or delay in obtaining governmental approvals, permits, licenses or allocations
and any other cause whether of the kind specifically enumerated above or
otherwise, provided that in order for any of the foregoing to constitute Force
Majeure, it must not be reasonably within the control of the Sublessor.
Notwithstanding the foregoing, Sublessee's obligation to pay Rent to Sublessor
shall not be excused by any "Force Majeure" as defined herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
16.
36. Truth-in-Leasing Clause. SUBLESSOR CERTIFIES THAT DURING THE TWELVE
(12) MONTHS PRECEDING THE DATE OF THIS AGREEMENT, THE AIRCRAFT HAS BEEN
MAINTAINED AND INSPECTED UNDER THE PROVISIONS OF FEDERAL AVIATION REGULATIONS
PART 91. SUBLESSEE CERTIFIES THAT (i) AT ALL TIMES DURING THE TERM HEREOF, THE
AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER THE PROVISIONS OF FEDERAL
AVIATION REGULATIONS PART 91 AND/OR PART 135, (ii) DURING THE TERM OF THIS
LEASE, SUBLESSEE, AND NOT SUBLESSOR, SHALL BE RESPONSIBLE FOR THE OPERATIONAL
CONTROL OF THE AIRCRAFT, AND (iii) SUBLESSEE UNDERSTANDS ITS RESPONSIBILITY FOR
COMPLIANCE WITH RESPECT TO ALL APPLICABLE FEDERAL AVIATION REGULATIONS. THE
PARTIES UNDERSTAND THAT AN EXPLANATION OF THE FACTORS BEARING ON OPERATIONAL
CONTROL OF THE AIRCRAFT AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE
OBTAINED FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT OFFICE. SUBLESSEE AGREES
TO KEEP A COPY OF THIS LEASE IN THE AIRCRAFT AT ALL TIMES DURING THE TERM
HEREOF.
IN WITNESS WHEREOF, the parties have executed and delivered this Sublease
Agreement as of the date first written above.
SUBLESSOR:
Terayon Communication Systems, Inc.,
a Delaware corporation,
By: /s/ Xx. Xxxx Xxxxx
----------------------------------
Title: Xx. Xxxx Rakib, CEO
SUBLESSEE:
United Furniture Equipment Rental,
Inc. a Ohio corporation,
By:
---------------------------------
Title:
------------------------------
17.
36. Truth-in-Leasing Clause. SUBLESSOR CERTIFIES THAT DURING THE TWELVE
(12) MONTHS PRECEDING THE DATE OF THIS AGREEMENT, THE AIRCRAFT HAS BEEN
MAINTAINED AND INSPECTED UNDER THE PROVISIONS OF FEDERAL AVIATION REGULATIONS
PART 91. SUBLESSEE CERTIFIES THAT (i) AT ALL TIMES DURING THE TERM HEREOF, THE
AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER THE PROVISIONS OF FEDERAL
AVIATION REGULATIONS PART 91 AND/OR PART 135, (ii) DURING THE TERM OF THIS
LEASE, SUBLESSEE, AND NOT SUBLESSOR, SHALL BE RESPONSIBLE FOR THE OPERATIONAL
CONTROL OF THE AIRCRAFT, AND (iii) SUBLESSEE UNDERSTANDS ITS RESPONSIBILITY FOR
COMPLIANCE WITH RESPECT TO ALL APPLICABLE FEDERAL AVIATION REGULATIONS. THE
PARTIES UNDERSTAND THAT AN EXPLANATION OF THE FACTORS BEARING ON OPERATIONAL
CONTROL OF THE AIRCRAFT AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE
OBTAINED FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT OFFICE. SUBLESSEE AGREES
TO KEEP A COPY OF THIS LEASE IN THE AIRCRAFT AT ALL TIMES DURING THE TERM
HEREOF.
IN WITNESS WHEREOF, the parties have executed and delivered this Sublease
Agreement as of the date first written above.
SUBLESSOR:
Terayon Communication Systems, Inc.,
a Delaware corporation,
By:
---------------------------------
Title:
------------------------------
SUBLESSEE:
United Furniture Equipment Rental,
Inc. a Ohio Corporation
By: /s/ [ILLEGIBLE]
---------------------------------
Title:
------------------------------
EXHIBIT "A"
MISCELLANOUS AND OPTIONAL EQUIPMENT
Xxxxxxxxxx 000, Xxxxxx Xx. 0000, X000XX
- 1 ea Airframe Log Book s/n 5348
- 2 ea Engine Logs CF34-3B
- s/n 872198 L/H Engine
- s/n 872196 R/H Engine
- 1 ea APU Log Book #1 and #2 s/n P378
- 1 ea Flammability Test Report, s/n 5348, Dec. 11 1997
- 1 xx Xxxxxxxxxx Completion Center Manual. S/N 5348 Equipment List, Weight
and Balance Report, 337 and SJC.
- 2 ea sets (8 binders ea) Supplemental Maintenance Manuals
- 1 ea set Airframe/Engine Maintenance Manuals (5 ea C.D.)
- 3 ea Box of Historical Maintenance Records
- 1 set Seat Covers
- 1 set Floor Runners
- 1 set Airframe Plugs and covers
- 1 box misc interior spares
- Galley has 1 set glasses + dishes + flatware
- 1 spare Mlg. wheel assembly
- P/N 000-00000-0
- S/W APR 97-0320
- 1 spare Nlg. wheel assembly
- P/N 601R85003-01
- S/N JUL98-1632
EXHIBIT "B"
GECC LEASE
Xxxxxxxxxx 000, Xxxxxx Xx. 0000, X000XX
19.
EXHIBIT "C"
CERTIFICATE OF ACCEPTANCE
Xxxxxxxxxx 000, Xxxxxx Xx. 0000, N881TW
This Certificate of Acceptance is being provided by Sublessee pursuant to
the Aircraft Sublease Agreement dated as of August 24, 2004 (the "Aircraft
Sublease"), between Terayon Communication Systems, Inc., as Sublessor (the
"Sublessor"), and United Furniture Equipment Rental, Inc., as Sublessee (the
"Sublessee").
A. Acceptance of the Aircraft: Sublessee hereby certifies that the
Aircraft as set forth and described in the Sublease has been delivered to
Sublessee, inspected by Sublessee, found to be in good order and fully equipped
to operate as required under applicable law for its intended purpose, and is, on
the date set forth below, fully and finally accepted under the Sublease.
B. Representations by Sublessee: Sublessee hereby represents and warrants
to Sublessor that on the date hereof:
(1) The representations and warranties of Sublessee set forth in the
Aircraft Sublease and all certificates and opinions delivered in
connection therewith were true and correct in all respects when
made and are true and correct as of the date hereof; and
(2) Sublessee has satisfied or complied with all conditions
precedent and requirements set forth in the Aircraft Sublease
which are required to be or to have been satisfied or complied
with on or prior to the date hereof; and
(3) No Default or Event of Default under the Aircraft Sublease has
occurred and is continuing on the date hereof; and
(4) Sublessee has obtained, and there are in full force and effect,
such insurance policies with respect to the Aircraft, as are
required to be obtained under the terms of the Aircraft
Sublease; and
(5) Sublessee has furnished no equipment for the Aircraft other than
as permitted as an addition thereto pursuant to the Aircraft
Sublease; and
(6) Sublessee has inspected the Aircraft and all pertinent records
therefor and the Aircraft has no damage history.
Date of Acceptance: August 24, 2004
Location of Acceptance: ____________________________________________
20.
Aircraft Total time: ________________ Landings: ____________________
Engine Hours: Cycles:
Left: ______________ ________________
Right: _____________ ________________
IN WITNESS WHEREOF, Sublessee has caused this Certificate of Acceptance to
be duly executed by its officers thereunto duly authorized.
Sublessee:
UNITED FURNITURE EQUIPMENT RENTAL, INC.,
an Ohio corporation,
By: _________________________________
Title: ______________________________
21.
EXECUTION COPY
CERTIFICATE OF ACCEPTANCE
Xxxxxxxxxx 000, Xxxxxx Xx. 0000, N881TW
This Certificate of Acceptance is being provided by Sublessee pursuant to
the Aircraft Sublease Agreement dated as of August 26, 2004 (the "Aircraft
Sublease"), between Terayon Communication Systems, Inc., as Sublessor (the
"Sublessor"), and United Furniture Equipment Rental, Inc., as Sublessee (the
"Sublessee").
A. Acceptance of the Aircraft: Sublessee hereby certifies that the
Aircraft as set forth and described in the Sublease has been delivered to
Sublessee, inspected by Sublessee, found to be in good order and fully equipped
to operate as required under applicable law for its intended purpose, and is, on
the date set forth below, fully and finally accepted under the Sublease.
B. Representations by Sublessee: Sublessee hereby represents and warrants
to Sublessor that on the date hereof:
(1) The representations and warranties of Sublessee set forth in
the Aircraft Sublease and all certificates and opinions
delivered in connection therewith were true and correct in all
respects when made and are true and correct as of the date
hereof; and
(2) Sublessee has satisfied or complied with all conditions
precedent and requirements set forth in the Aircraft Sublease
which are required to be or to have been satisfied or complied
with on or prior to the date hereof; and
(3) No Default or Event of Default under the Aircraft Sublease has
occurred and is continuing on the date hereof; and
(4) Sublessee has obtained, and there are in full force and
effect, such insurance policies with respect to the Aircraft,
as are required to be obtained under the terms of the Aircraft
Sublease; and
(5) Sublessee has furnished no equipment for the Aircraft other
than as permitted as an addition thereto pursuant to the
Aircraft Sublease; and
(6) Sublessee has inspected the Aircraft and all pertinent records
therefor and the Aircraft has no damage history.
Date of Acceptance: August 26, 2004
Location of Acceptance: Columbus, Ohio
Aircraft Total time: 3238.6 Landings: 1890
Engine Hours: Cycles:
Left: 3238.6 1890
Right: 3238.6 1890
EXECUTION COPY
IN WITNESS WHEREOF, Sublessee has caused this Certificate of Acceptance to
be duly executed by its officers thereunto duly authorized.
Sublessee:
UNITED FURNITURE EQUIPMENT RENTAL, INC.,
an Ohio corporation,
By: /s/ [ILLEGIBLE]
----------------------------------
Title: President
EXHIBIT "D"
GUARANTY OF XXXXX XXXXXXX
Challenger 604, Serial No. 5348, N881TW
GUARANTY
To: TERAYON COMMUNICATION SYSTEMS, INC.
This guaranty dated as of August 24, 2004 (the "Guaranty") is being given
by XXXXX XXXXXXX (the "Guarantor"), an individual residing in the State of Ohio,
in connection with that certain Aircraft Sublease Agreement (the "Aircraft
Sublease"), dated as of August 24, 2004, between Terayon Communication Systems,
Inc., a Delaware corporation ("Sublessor"), and United Furniture Equipment
Rental, Inc., an Ohio corporation ("Sublessee"), with respect to that certain
Canadair Challenger 604 aircraft, United States Registration Number N881TW,
Manufacturer's Serial Number 5348 (the "Aircraft").
The Guarantor requests you enter into the foregoing Aircraft Sublease and
to induce you to do so and in consideration hereof and of benefits to accrue to
the Guarantor therefrom, the Guarantor, as primary obligor, unconditionally
guarantees to you or to any of your direct or indirect affiliates and
subsidiaries, (each hereinafter called an "Affiliate"), that Sublessee will
fully and promptly pay and perform all its obligations to you under the Aircraft
Sublease, whether direct or indirect, joint or several, absolute or contingent,
secured or unsecured, matured, unmatured or matured by acceleration and whether
originally contracted with you or otherwise acquired by you, irrespective of any
invalidity or unenforceability of any such obligation or the insufficiency,
invalidity or unenforceability of any security therefor and notwithstanding any
waiver or limitation of liability of Sublessee under the Aircraft Sublease.
Guarantor agrees, without your first having to proceed against Sublessee
or to liquidate paper or any security therefor, to pay on written demand all
sums due and to become due to you from Sublessee and all losses, costs,
attorneys' fees or expenses which may be suffered by you by reason of
Sublessee's default or default of the undersigned and agrees to be bound by and
on written demand to pay any amount owed under the Aircraft Sublease, with or
without notice to the Guarantor. This Guaranty is an unconditional guarantee of
payment and performance, rather than a guarantee of collection. The Guarantor
shall not be released or discharged, either in whole or in part, by your failure
or delay to perfect or continue the perfection of any security interest in any
property which secures the obligations of Sublessee to you under the Aircraft
Sublease or of the Guarantor to you under this Guaranty, or to protect the
property covered by any such security interest. No termination hereof shall be
effected by Guarantor's death.
The Guarantor hereby waives: notice of acceptance hereof; presentment,
demand, protest and notice of nonpayment or protest as to the Aircraft Sublease;
any and all rights
22.
of subrogation, reimbursement, indemnity, exoneration, contribution or any other
claim which the Guarantor may now or hereafter have against Sublessee or any
other person directly or contingently liable for the obligations guaranteed
hereunder, or against or with respect to Sublessee's property (including,
without limitation, property collateralizing its obligations to you), arising
from the existence or performance of this Guaranty; all exemptions and homestead
laws and any other demands and notices required by law; all setoffs and
counterclaims; and any duty on your part (should any such exist) to disclose to
the Guarantor any manner, fact or thing related to the business operations or
condition (financial or otherwise) of Sublessee or its affiliates or property,
whether now or hereafter known by you.
You may at any time without the Guarantor's consent, without notice to
the Guarantor and without affecting or impairing the Guarantor's obligations
hereunder, do any of the following:
1. renew, extend (including extensions beyond the original term of the
Aircraft Sublease), modify, release or discharge any obligations of
Sublessee, the Guarantor or of other guarantors (under a separate
instrument) or of any other party at any time directly or contingently
liable for the payment of Sublessee's obligations under the Aircraft
Sublease;
2. accept partial payments of Sublessee's obligations under the
Aircraft Sublease;
3. accept new or additional documents, instruments or agreements
relating to or in substitution of Sublessee's obligations under the
Aircraft Sublease;
4. settle, release (by operation of law or otherwise), compound,
compromise, collect or liquidate any of Sublessee's obligations under
the Aircraft Sublease and any security therefor in any manner;
5. consent to the transfer or return of any security, and take and
hold additional security or guaranties for Sublessee's obligations
under the Aircraft Sublease; or
6. amend, exchange, release or waive any security or guaranty.
If any claim is made upon you at any time for repayment or recovery of
any amount(s) or other value received by you, from any source, in payment of or
on account of the obligations of Sublessee guaranteed hereunder and you repay or
otherwise become liable for all or any part of such claim by reason of:
(a) any judgment, decree or order of any court or administrative body
having competent jurisdiction; or
(b) any settlement or compromise of any such claim, (a)
23.
the Guarantor shall remain liable to you hereunder for the amount so repaid or
for which you are otherwise liable to the same extent as if such amount(s) had
never been received by you, notwithstanding any termination hereof or the
cancellation of any note or other agreement evidencing any of the obligations of
Sublessee.
Prior to the commencement of the Aircraft Sublease, and at any time after
written request upon a default by Sublessee under the Aircraft Sublease,
Guarantor agrees to furnish to you, within five (5) days of such request,
Guarantor's personal financial statements, in form and detail satisfactory to
you, and copies of Guarantor's tax returns, as soon as available and in any
event not later than 15 days after such tax returns are required to be filed.
Guarantor agrees that its guaranty hereunder shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of Sublessee's obligations under the Aircraft Sublease are
rescinded, invalidated, declared to be fraudulent or preferential, or must
otherwise be returned, refunded, repaid or restored by you upon the bankruptcy
or reorganization of Sublessee or the Guarantor or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, Sublessee or the Guarantor, or otherwise, all as though such
payments had not been made.
Until the indefeasible payment in full of all Sublessee's obligations
under the Aircraft Sublease, the Guarantor shall not have (and hereby waives)
any right by way of subrogation or otherwise as a result of the payment of any
sums hereunder. Guarantor agrees that Guarantor will never have, and hereby
waives and disclaims, any claim or right against Sublessee by way of subrogation
or otherwise in respect of any payment hereunder.
This Guaranty shall bind the Guarantor's respective heirs, administrators,
representatives, successors, and assigns, and shall inure to your successors and
assigns, including, but not limited to, any party to whom you may assign the
Aircraft Sublease (the Guarantor hereby waives notice of any such assignment).
All of your rights are cumulative and not alternative.
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
THEREOF. Guarantor hereby consents (i) that any action or proceeding against it
may be commenced and maintained in any federal or state court in the State of
California by service of process on Guarantor, and (ii) that such courts shall
have jurisdiction with respect to the subject matter hereof and the person of
the undersigned.
Guarantor:
_____________________________________
Xxxxx Xxxxxxx
Address: 0000 X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
24.
EXECUTION COPY
GUARANTY OF XXXXX XXXXXXX
Challenger 604, Serial No. 5348, N881TW
GUARANTY
To: TERAYON COMMUNICATION SYSTEMS, INC.
This guaranty dated as of August 26, 2004 (the "Guaranty") is being given
by XXXXX XXXXXXX (the "Guarantor"), an individual residing in the State of Ohio,
in connection with that certain Aircraft Sublease Agreement (the "Aircraft
Sublease"), dated as of August 26, 2004, between Terayon Communication Systems,
Inc., a Delaware corporation ("Sublessor"), and United Furniture Equipment
Rental, Inc., an Ohio corporation ("Sublessee"), with respect to that certain
Canadair Challenger 604 aircraft, United States Registration Number N881TW,
Manufacturer's Serial Number 5348 (the "Aircraft").
The Guarantor requests you enter into the foregoing Aircraft Sublease and
to induce you to do so and in consideration hereof and of benefits to accrue to
the Guarantor therefrom, the Guarantor, as primary obligor, unconditionally
guarantees to you or to any of your direct or indirect affiliates and
subsidiaries, (each hereinafter called an "Affiliate"), that Sublessee will
fully and promptly pay and perform all its obligations to you under the Aircraft
Sublease, whether direct or indirect, joint or several, absolute or contingent,
secured or unsecured, matured, unmatured or matured by acceleration and whether
originally contracted with you or otherwise acquired by you, irrespective of any
invalidity or unenforceability of any such obligation or the insufficiency,
invalidity or unenforceability of any security therefor and notwithstanding any
waiver or limitation of liability of Sublessee under the Aircraft Sublease.
Guarantor agrees, without your first having to proceed against Sublessee
or to liquidate paper or any security therefor, to pay on written demand all
sums due and to become due to you from Sublessee and all losses, costs,
attorneys' fees or expenses which may be suffered by you by reason of
Sublessee's default or default of the undersigned and agrees to be bound by and
on written demand to pay any amount owed under the Aircraft Sublease, with or
without notice to the Guarantor. This Guaranty is an unconditional guarantee of
payment and performance, rather than a guarantee of collection. The Guarantor
shall not be released or discharged, either in whole or in part, by your failure
or delay to perfect or continue the perfection of any security interest in any
property which secures the obligations of Sublessee to you under the Aircraft
Sublease or of the Guarantor to you under this Guaranty, or to protect the
property covered by any such security interest. No termination hereof shall be
effected by Guarantor's death.
The Guarantor hereby waives: notice of acceptance hereof; presentment,
demand, protest and notice of nonpayment or protest as to the Aircraft
Sublease; any and all rights of subrogation, reimbursement, indemnity,
exoneration, contribution or any other claim which the Guarantor may now or
hereafter have against Sublessee or any other person directly or contingently
liable for the obligations guaranteed hereunder, or against or with
EXECUTION COPY
respect to Sublessee's property (including, without limitation, property
collateralizing its obligations to you), arising from the existence or
performance of this Guaranty; all exemptions and homestead laws and any other
demands and notices required by law; all setoffs and counterclaims; and any duty
on your part (should any such exist) to disclose to the Guarantor any manner,
fact or thing related to the business operations or condition (financial or
otherwise) of Sublessee or its affiliates or property, whether now or hereafter
known by you.
You may at any time without the Guarantor's consent, without notice to the
Guarantor and without affecting or impairing the Guarantor's obligations
hereunder, do any of the following:
1. renew, extend (including extensions beyond the original term of the
Aircraft Sublease), modify, release or discharge any obligations of
Sublessee, the Guarantor or of other guarantors (under a separate
instrument) or of any other party at any time directly or
contingently liable for the payment of Sublessee's obligations under
the Aircraft Sublease;
2. accept partial payments of Sublessee's obligations under the
Aircraft Sublease;
3. accept new or additional documents, instruments or agreements
relating to or in substitution of Sublessee's obligations under the
Aircraft Sublease;
4. settle, release (by operation of law or otherwise), compound,
compromise, collect or liquidate any of Sublessee's obligations
under the Aircraft Sublease and any security therefor in any manner;
5. consent to the transfer or return of any security, and take and hold
additional security or guaranties for Sublessee's obligations under
the Aircraft Sublease; or
6. amend, exchange, release or waive any security or guaranty.
If any claim is made upon you at any time for repayment or recovery of any
amount(s) or other value received by you, from any source, in payment of or on
account of the obligations of Sublessee guaranteed hereunder and you repay or
otherwise become liable for all or any part of such claim by reason of:
(a) any judgment, decree or order of any court or administrative body
having competent jurisdiction; or
(b) any settlement or compromise of any such claim,
the Guarantor shall remain liable to you hereunder for the amount so repaid or
for which you are otherwise liable to the same extent as if such amount(s) had
never been received by
2.
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you, notwithstanding any termination hereof or the cancellation of any note or
other agreement evidencing any of the obligations of Sublessee.
Prior to the commencement of the Aircraft Sublease, and at any time after
written request upon a default by Sublessee under the Aircraft Sublease,
Guarantor agrees to furnish to you, within five (5) days of such request,
Guarantor's personal financial statements, in form and detail satisfactory to
you, and copies of Guarantor's tax returns, as soon as available and in any
event not later than 15 days after such tax returns are required to be filed.
Guarantor agrees that its guaranty hereunder shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of Sublessee's obligations under the Aircraft Sublease are
rescinded, invalidated, declared to be fraudulent or preferential, or must
otherwise be returned, refunded, repaid or restored by you upon the bankruptcy
or reorganization of Sublessee or the Guarantor or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, Sublessee or the Guarantor, or otherwise, all as though such
payments had not been made.
Until the indefeasible payment in full of all Sublessee's obligations
under the Aircraft Sublease, the Guarantor shall not have (and hereby waives)
any right by way of subrogation or otherwise as a result of the payment of any
sums hereunder. Guarantor agrees that Guarantor will never have, and hereby
waives and disclaims, any claim or right against Sublessee by way of subrogation
or otherwise in respect of any payment hereunder.
This Guaranty shall bind the Guarantor's respective heirs, administrators,
representatives, successors, and assigns, and shall inure to your successors and
assigns, including, but not limited to, any party to whom you may assign the
Aircraft Sublease (the Guarantor hereby waives notice of any such assignment).
All of your rights are cumulative and not alternative.
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
THEREOF. Guarantor hereby consents (i) that any action or proceeding against it
may be commenced and maintained in any federal or state court in the State of
California by service of process on Guarantor, and (ii) that such courts shall
have jurisdiction with respect to the subject matter hereof and the person of
the undersigned.
Guarantor
/s/ Xxxxx Belfbrd
-------------------------------------
Xxxxx Belfbrd
Address: 0000 X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
3.
