Master Electronic Equipment Lease Lessor: Data Sales Company Name of Lessee: KeyOn Communications LLC Master Lease No. 3-9993 Street Address: 4067 Industrial Road Date: 08/18/05 City, State & Zip Code: Las Vegas, NV 89103
Master
Electronic Equipment Lease
Lessor:
Data
Sales Company
Name
of
Lessee: KeyOn
Communications LLC
Master
Lease No. 3-9993
Street
Address: 0000
Xxxxxxxxxx Xxxx
Date:
08/18/05
City,
State & Zip Code: Las
Vegas, NV 89103
1.
LEASE:
Lessor
("Lessor"), by its acceptance hereof at its home office, agrees to lease to
Lessee and Xxxxxx agrees to lease from Lessor, in accordance with the terms
and
conditions hereinafter set forth, the items of equipment and other property
(the
"Equipment") described in each equipment schedule ("Equipment Schedule") in
the
form of Exhibit "A" attached hereto, executed from time to time pursuant to
this
Master Electronic Equipment Lease ("Master Lease"). Each Equipment Schedule
shall incorporate the terms of this Master Lease and shall constitute a separate
and enforceable lease of the Equipment described in such Equipment Schedule.
Any
reference to the "Lease" shall mean each such Equipment Schedule (including
all
amendments, addenda or riders thereto) to the extent it incorporates this Master
Lease. In the event of any conflict between the terms of an Equipment Schedule
and the terms of this Master Lease, the terms of the Equipment Schedule shall
prevail.
2.
DEFINITIONS:
A. The
"Installation Date" means the date determined in accordance with the Equipment
Schedule.
B.
The
"Commencement Date" means the first day of the month following the Installation
Date, unless the Installation Date occurs on the first day of a month, in which
case the Commencement Date shall be the Installation Date.
3.
TERM OF LEASE:
The
term
of the Lease as to Equipment designated on the Equipment Schedule shall begin
on
the Installation Date in accordance with the Equipment Schedule, and shall
continue for an initial period ending that number of months from the
Commencement Date as is specified on the Equipment Schedule (the "Initial
Term"). THE LEASE IS NON-CANCELABLE FOR THE INITIAL TERM and Lessee has no
right
of prepayment unless such right is specifically granted to Lessee in the
Equipment Schedule. Lessee shall execute and deliver to Lessor a certificate
of
delivery and acceptance ("Acceptance") on the date the Equipment has been
installed and accepted by Lessee, and Lessor shall have no obligation to advance
funds for the Equipment's purchase unless and until Lessor receives such
Acceptance.
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The
Lease
shall remain in force until terminated by Lessee or Lessor upon no less than
two
(2) months prior written notice to the other party; provided, however, that
any
such termination shall be effective only on the last day of the Initial Term,
or
the last day of any successive extension rental period.
A.
OPTION
TO RENEW. Provided that no Event of Default has then occurred, Lessee shall
have
the option to renew the Lease, at the expiration of the original term, with
respect to all but not less than all of the Equipment leased under this
Equipment Schedule on the terms and conditions of the Lease, for a negotiated
renewal term at a periodic rent equal to the Fair Market Rental Value of such
Equipment determined at the time of renewal. Such election shall be effective
with respect to all Equipment leased under this Equipment Schedule. If Lessee
desires to exercise this option it shall give Lessor written notice of its
intention to exercise this option to renew at least ninety (90) days before
expiration of the original term with respect to this Equipment Schedule.
Thereafter, Xxxxxx shall engage in negotiations with Lessor to determine the
periodic rent to be paid during the renewal term. Not less then sixty (60)
days
before expiration of the original term with respect to this Equipment Schedule,
Lessee shall give Lessor written notice of its election to renew on the terms
mutually agreed upon during negotiations.
For
purposes of this Section, “Fair Market Rental Value” shall be deemed to be an
amount equal to the rental, as installed and in use, obtainable in an arms’
length transaction between a willing and informed lessor and a willing and
informed lessee under no compulsion to lease (and assuming that, as of the
date
of determination, the Equipment is in at least the condition required by section
9 of the Master Lease Agreement). If (prior to sixty (60) days before expiration
of the term of the Lease) the parties are unable to agree on the Fair Market
Rental Value of the Equipment, then (at least forty-five (45) days before
expiration of the term of the Lease) Lessor and Lessee shall obtain appraisal
values from three independent appraisers (one to be selected by Lessor at its
expense, one by Lessee at its expense, and the other by the two selected by
Lessor and Lessee (the expense of such third appraiser to be shared equally
by
Xxxxxx and Xxxxxx); each of whom must be associated with a professional
organization of equipment or personal property appraisers, such as the American
Society of Appraisers) and the average Fair Market Rental Value as determined
by
such appraisers shall be binding on the parties hereto.
B.
OPTION
TO
PURCHASE. Provided that no Event of Default has occurred, Lessee shall have
the
option to purchase, upon the expiration of the original term, or any subsequent
renewal term, if applicable, all but not less than all the Equipment leased
under this Equipment Schedule upon the following terms and conditions: If Lessee
desires to exercise this option it shall give Lessor written notice of its
intention to exercise this option to purchase at least ninety (90) days before
expiration of the original term with respect to this Equipment Schedule.
Thereafter, Lessee shall engage in negotiations with Lessor to determine the
purchase price for the Equipment. Not less then sixty (60) days before
expiration of the original term with respect to this Equipment Schedule, Lessee
shall give Lessor written notice of its election to purchase on the terms
mutually agreed upon during negotiations. Such election shall be effective
with
respect to all Equipment leased under this Equipment Schedule. Thereupon, at
the
expiration of the original term with respect to this Equipment Schedule, Lessee
shall pay to Lessor in cash the purchase price for the Equipment so purchased,
determined as hereinafter provided. The purchase price of the Equipment shall
be
an amount equal to its then Fair Market Value, together with all taxes and
charges upon sale.
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For
purposes of this Section, “Fair Market Value” shall be deemed to be an amount
equal to the sale price of the Equipment, as installed and in use, obtainable
in
an arms’ length transaction between a willing and informed buyer and a willing
and informed seller under no compulsion to sell (and assuming that, as of the
date of determination, the Equipment is in at least the condition required
by
Section 9 of the Master Lease Agreement.) If the parties are unable to agree
on
the Fair Market Value of the Equipment, then the appraisal procedure set forth
in Section A hereof shall be followed. Notwithstanding any election of Lessee
to
purchase, the provisions of the Lease shall continue in full force and effect
until the passage of ownership of the Equipment upon the date of purchase.
On
the date of purchase, Lessor shall deliver to Lessee a bill of sale transferring
and assigning to Lessee without recourse or warranty, except (with respect
to
the status of title conveyed) in respect of Xxxxxx’s acts, all of Lessor’s
right, title and interest in and to the Equipment. Lessor shall not be required
to make and may specifically disclaim any representation or warranty as to
the
condition of the Equipment or any other matters.
4.
RENTAL PAYMENTS:
The
monthly rental payments for each item of Equipment (the "Monthly Rental
Payments") shall be set forth in the applicable Equipment Schedule, shall begin
to accrue on the Installation Date of the Equipment and shall be due and payable
by Lessee in advance on the first day of each month. Any upfront deposit made
by
the Lessee to Lessor as a security deposit for the last month of the any Lease
shall be applied to the last month’s Monthly Rental Payment for the purpose of
any amounts due and payable by the Lessee to Lessor under
the
related Lease and any other calculations set forth in this Master
Lease. If
the
Installation Date does not fall on the first day of the month, the rental for
that period of time from the Installation Date until the first day of the
succeeding month shall be a pro rata portion of the Monthly Rental Payment,
calculated on a 30-day basis, due and payable on the Installation Date. Lessee
shall pay a late charge on all Monthly Rental Payments unpaid for more than
ten
(10) days after the due date thereof equal to one and one-half percent (1-1/2%),
or the highest rate permissible by law, whichever is less.
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5.
PAYMENT OF TAXES:
Lessee
shall also pay all taxes, however designated, which are levied or based on
the
Lease, the Equipment or its purchase, use, lease, operation, control or value,
including, without limitation, personal property taxes, state and local
privilege or excise taxes based on gross revenue, and any penalties or interest
in connection therewith, or taxes or amounts in lieu thereof paid or payable
by
Lessor or Lessee in respect of the foregoing, but excluding taxes based on
Lessor's net income. Charges for taxes, penalties and interest, if any, shall
be
promptly paid by Xxxxxx. In the event Lessee defaults in the payment of any
such
tax, Lessor may pay such tax and shall be promptly reimbursed by Xxxxxx, with
interest (plus attorneys' fees and costs if any) as additional
rent.
6.
ARTICLE 2A LEASE; DISCLAIMER OF WARRANTIES.
This
Lease is a true lease which is a "finance lease", as that term is defined under
Uniform Commercial Code ("UCC") Article 2A-103. Lessor has not selected,
manufactured or supplied the Equipment. Lessee has selected the Equipment from
the manufacturer, supplier or distributor of the Equipment (the "Vendor").
Lessor acquired the Equipment or the right to possession and use of the
Equipment only in connection with this Lease. Either Lessee has assigned to
Lessor its acquisition agreement for the Equipment on or before signing this
Lease or Xxxxxx's approval of the contract evidencing Lessor's purchase of
the
Equipment is a condition to the effectiveness of this Lease (and Xxxxxx's
execution of this Lease evidences its approval of said contract). Lessor here
informs Lessee that Lessee may have rights under the contract evidencing
Xxxxxx's purchase of the Equipment and advises Lessee to contact the Vendor
for
a description of any such rights. If Lessee has entered into any acquisition
agreement with Vendor, Lessee shall perform all of the obligations set forth
therein as if this Lease did not exist.
XXXXXX
HAS NOT MADE AND MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS ANY OTHER
REPRESENTATION OR EXPRESS OR IMPLIED WARRANTY WHATSOEVER HEREUNDER, INCLUDING
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, OR OTHERWISE,
REGARDING THE EQUIPMENT OR ANY PART OR THE DESIGN, QUALITY, OPERATION OR
CONDITION THEREOF OR WITH RESPECT TO PATENT INFRINGEMENT OR THE LIKE. Subject
to
the provisions of Section 14 hereof, Lessor hereby grants, transfers and assigns
to Lessee during the term of this Lease all of its right, title and interest
in
any express or implied warranties, indemnities or service agreements of the
Vendor which are assignable by Lessor. Lessor shall permit Lessee, as Xxxxxx's
sole remedy, to enforce any such representation, warranty, indemnity or service
agreement against the Vendor in the name of Lessor, and not against Lessor
or
Assignee (as hereinafter defined).
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Lessee
acknowledges that it is not relying on Lessor's skill or judgment to select
or
furnish goods suitable for any particular purpose and that there are no
warranties which are not contained in this Lease. LESSOR SHALL NOT BE LIABLE
FOR
DAMAGES, INCLUDING SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES,
arising out of or in connection with the performance of the Equipment or the
use
thereof by Xxxxxx and shall not be liable for any special, incidental or
consequential damages, arising out of or in connection with Xxxxxx's failure
to
perform its obligations hereunder. Upon written request from the Lessee, Lessor
shall take all reasonable action requested by Lessee to enforce any
manufacturer's warranty express or implied, relating to the condition or
performance of the Equipment which is enforceable by Lessor in its own name,
provided, however, that Lessor shall not be obligated to resort to litigation
to
enforce any such warranty unless Lessee shall pay all expenses incurred in
connection therewith. Similarly, if any such warranty shall be enforceable
by
Lessee in its own name, Lessee shall take reasonable action requested by Lessor
to enforce any such warranty. Lessee shall indemnify and hold Lessor and its
assigns harmless from any liability, claim, loss, damage or expense (including
reasonable attorneys' fees) of any kind or nature caused, directly or indirectly
by (1) inadequacy of any Equipment for any purpose, (2) any deficiency or defect
in any Equipment, (3) the use or performance of any Equipment, (4) any
interruption or loss of service, use or performance of any Equipment, (5) any
patent, copyright, or other infringement, or (6) any loss of business or other
consequential damage whether or not resulting directly from any or all of the
above. Xxxxxx acknowledges that it has made the selection of the Equipment
based
on its own judgment, and expressly disclaims any reliance upon statements made
by Xxxxxx. Lessee acknowledges that Lessor has made no statements or
representations upon which Lessee is relying in leasing the Equipment, and
that
this Lease contains all agreements and understandings between the
parties.
If
the
applicable Equipment Schedule provides that Lessor is warranting "Equipment
Maintenance Contract Eligibility" on the Installation Date: (i) Lessor warrants
that, as of the Installation Date, the Equipment on such Equipment Schedule
is
eligible for a manufacturer's maintenance contract, and (ii) in the event this
warranty is untrue, Lessor shall make and render such Equipment eligible for
a
manufacturer's maintenance contract, within 30 days (unless otherwise specified
in the Equipment Schedule) of written notice from Lessee of its ineligibility,
and should Lessor fail to make such Equipment eligible within said period,
Lessor shall be liable to remove any such Equipment that is not made eligible
within said 30-day period (unless otherwise specified in the Equipment
Schedule), at its own expense, and shall be liable for Lessee's out-of-pocket
expenses incurred for installation of the Equipment, but for no other expense
or
damages.
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7.
RISK OF LOSS:
A.
Lessor shall not be responsible for, nor shall the Monthly Rental Payments
or
other sums due hereunder xxxxx for any reason, including, but not limited to,
any interruption in or loss of the service or use of the Equipment or any part
thereof, or any loss or damage caused thereby, or by error in programming or
instruction to the Equipment, latent defect, wear and tear, or gradual
deterioration of the Equipment or any part thereof.
B.
Lessee assumes and shall bear the entire risk of partial or complete loss,
theft, damage, destruction or other interruption or termination of use of the
Equipment from any cause whatsoever, from the date of delivery of the Equipment
to Lessee until the Equipment is returned to and received by
Lessor.
During
the term of the Lease, and until the Equipment is redelivered to Lessor, Lessee
shall be liable for the prompt repair of the Equipment at its sole expense.
If
the Equipment or any portion thereof is lost, stolen, destroyed or damaged
beyond repair, Lessee, at its option, will (i) continue to make the Monthly
Rental Payments, and, at Lessee's sole expense, replace the Equipment with
equipment of identical manufacture and equal or greater capacity, utility and
residual value to that of the Equipment replaced (in which case Lessee will
transfer title to the replacement Equipment to the Lessor free of all liens,
claims and encumbrances), or (ii) pay Lessor on the next Monthly Rental Payment
date following the loss, theft, damage or destruction of the Equipment an amount
equal to the replacement value or the minimum casualty value, whichever is
greater, attached to the applicable Equipment Schedule for such Equipment in
effect on the date of the loss, theft, damage or destruction thereof and all
rent accrued on such Equipment up to the date of payment and all other
reasonable amounts then due in connection with such Equipment as set forth
in a
schedule to be provided by Lessor to Lessee at the time of such payment.
Notwithstanding the foregoing, any proceeds of insurance paid to the Lessor
as
an insured and/or loss payee under Xxxxxx’s insurance policies as a result of
the Equipment or any portion thereof being lost, stolen, destroyed or damaged
beyond repair shall be applied towards the replacement costs and Monthly Rental
Payments otherwise due from Lessee to Lessor under items (i) and (ii) in this
subparagraph.
Upon
such payment, the Equipment Schedule, or portion thereof, as applicable, will
terminate with respect to the Equipment so paid for, and Lessor will transfer
full ownership and title to such Equipment to Lessee, free of liens, claims
and
encumbrances created by Lessor.
6
8.
INSURANCE AND INDEMNITY:
Lessee
shall at all times during the term of this Lease, at its own expense, maintain:
(A) all-risk property damage insurance covering the Equipment in an amount
not
less than the greater of (i) the replacement value of the Equipment, or (ii)
the
minimum casualty value of such Equipment as set forth in the Equipment Schedule,
and (B) public liability coverage in such amounts, and with such companies
as
are in general usage by companies owning or operating similar property and
engaged in a business similar to Lessee's. The insurance required by this
Section 8 may be obtained by Lessee by endorsement on any blanket insurance
policies maintained by Lessee or its parent. All insurance so maintained shall
provide for a thirty-day prior written notice to Lessor and Assignee of any
cancellation or reduction of coverages and an option in favor of Lessor or
Assignee to prevent cancellation by payment of premiums, which shall promptly
be
repaid by Lessee, and further shall provide that all insurance proceeds shall
be
payable to the Lessee, Lessor and any Assignee as their respective interests
may
appear. Lessor and any such Assignee shall be named as a
loss
payee and additional insured on the insurance so maintained. Lessee shall
furnish to Lessor copies of such insurance policies and satisfactory insurance
certificates on or before the Installation Date. Lessee's above obligation
shall
commence on the date of delivery of the Equipment and shall continue until
the
Initial Term (or any extension or renewal thereof) of each Equipment Schedule
expires and the Equipment is returned to Lessor, regardless of whether the
Equipment was replaced . By this Section 8, Lessor does not modify or limit
any
provision of this Lease relating to disclaimer of warranties and liability,
or
indemnity.
Lessee
assumes all risk and liabilities, whether or not covered by insurance, and
shall
indemnify and hold Lessor and its assigns (including any Assignee) harmless
of
and from any liability, claim, loss, damage or expense (including reasonable
attorneys' fees) for injuries or deaths of persons and for damage to property,
howsoever arising from or incident to the use, operation or storage of the
Equipment, whether such injury or death to person be of agents or employees
of
Lessee or be of third persons and whether such damage to property be of Lessee,
or to property of others.
9.
MAINTENANCE, REPAIRS AND INSTALLATION:
Unless
otherwise agreed to by Lessor in writing, Lessee shall, at its expense, obtain
and keep in full effect, throughout the term of this Lease, a contract from
the
manufacturer of the Equipment (or another reputable maintenance organization
approved by Lessor) providing for prime shift maintenance service (as that
term
is defined by the manufacturer) and will otherwise maintain the Equipment in
good working order and appearance and make all necessary adjustments and repairs
thereto. Lessee will at all times cooperate with Lessor in allowing the
manufacturer or Lessor to control and install all engineering changes on the
Equipment as when determined necessary or desirable by the manufacturer or
Lessor, subject to Xxxxxx’s consent. Upon termination of the Lease, Lessee, at
its sole expense, shall return the Equipment to Lessor, or to such other
location within the Continental U.S. designated by Lessor, in good condition
and
repair excepting only reasonable wear and tear, and eligible for a
manufacturer's standard, full service maintenance contract. If the Equipment
returned is not so eligible, Xxxxxx shall reimburse Lessor for the cost of
qualifying the Equipment for such maintenance contract eligibility. Lessee
shall
pack the Equipment to be so returned in accordance with the manufacturer's
guidelines.
7
If
Lessee
fails to return the Equipment in accordance with the preceding paragraph upon
the expiration of the Initial Term or any extension thereof, at Lessor's option,
the Lease shall remain effective and shall become a month-to-month lease between
the parties on the same terms and conditions and the Monthly Rental Payment
then
in effect shall be the rent payable during such month-to-month term under the
applicable Equipment Schedule. In the event of such automatic month-to-month
extension, Lessor reserves the right to terminate the Lease by 30 days' written
notice to Xxxxxx.
Lessee
will provide the required suitable electric current to operate the Equipment,
with all appropriate facilities as specified by the manufacturer. Lessee will
grant access to the Equipment to Lessor, its designee, or the manufacturer,
during normal working hours for inspection, repair, maintenance, installation
or
engineering changes, and for any other reasonable purpose. Lessee shall
immediately notify Lessor of all details concerning any accident arising out
of
the alleged or apparent improper manufacture, functioning or operation of the
Equipment.
10. ALTERATION
AND ATTACHMENTS:
No
alterations or attachments to the Equipment shall be made without first
obtaining in each instance the prior written approval of Lessor, which approval
shall not unreasonably be withheld. If, after such written approval has been
obtained, the alterations or attachments interfere with the normal or
satisfactory maintenance, operation or insurability of the Equipment, or any
part thereof, in such manner as to increase the cost of maintenance or insurance
thereof, or create a safety hazard, Lessee will, upon notice from Lessor to
that
effect, promptly remove the alterations or attachments and restore the Equipment
to its normal condition. In the case of increased cost of maintenance and
insurance, or either, Lessee shall pay such increase.
11.
ASSIGNMENTS AND SECURITY INTERESTS:
Lessor
may assign or transfer this Lease to an assignee or may grant a security
interest in all or part of this Lease, the Equipment and/or sums payable
hereunder as collateral security for any loans or advances made or to be made
to
Lessor by a financial institution (such assignee or financial institution,
herein, the "Assignee"). Lessor shall notify Lessee of such Assignment and
of
the name of the Assignee no later than 3 Business Days within the effective
date
of such assignment. Lessee
hereby consents to such assignment, transfer and/or grant of security interest.
Lessee, upon receipt of notice of any such transfer, assignment, or grant to
an
Assignee and instructions from Lessor, shall pay all outstanding Monthly Rental
Payments and all other sums when due under this Lease (hereafter, collectively,
the "Payments"), to such Assignee in the manner specified in said instructions,
and Xxxxxx's obligation to make the Payments to such Assignee shall be absolute
and unconditional, and Lessee will pay directly to such Assignee all Payments
without regard to, and shall not assert against such Assignee any claim,
defense, counterclaim, recoupment, setoff or right to cancel or terminate the
Lease which Lessee may have against Lessor or any other party. Nothing in this
Section shall be deemed to relieve Lessor of any of its obligations to Lessee
under the Lease.
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Notwithstanding
any assignment, transfer or grant by Xxxxxx, and so long as the Lessee shall
not
be in default hereunder, neither Xxxxxx, nor any Assignee, shall interfere
with
Xxxxxx's right of quiet enjoyment and use of the Equipment. In the event that
Lessor notifies Lessee of its intention to transfer, assign, or grant a security
interest in all or any part of this Lease, the Equipment and/or sums payable
hereunder, Xxxxxx agrees to execute such documents as may be reasonably
necessary to secure and/or complete such transfer, assignment or
grant.
12.
USE OF EQUIPMENT:
The
Equipment will be kept by Lessee in its sole possession and control, will at
all
times be located at the location stated in the Equipment Schedule, and will
not
be removed therefrom, without prior written consent of Lessor, which shall
not
be unreasonably withheld. Lessee will keep and maintain the Equipment free
and
clear of all liens, charges and encumbrances (except any placed thereon by
Lessor). This Lease shall be binding upon, and shall inure to, the benefit
of
the parties hereto and their respective successors and assigns. Lessee may
not
assign the Lease or any of Xxxxxx's rights hereunder or sublease any Equipment
or its use without the prior written consent of Lessor or any such assignment
or
sublease shall be void. Any permitted sublessee or assignee of Lessee must
execute an assumption of this Lease in form and substance acceptable to Lessor,
but no sublease or assignment shall relieve Lessee of any of its obligations
or
liabilities under this Lease. Nothing contained herein shall limit the Lessee's
right to sell time on the Equipment to third parties while the Equipment is
located at the location set forth in the Equipment Schedule or at such other
location approved by Lessor.
Lessee
agrees that all cards, tapes, disks, diskettes, supplies, and/or other
input/output and storage media used to operate the Equipment shall meet the
specifications of the manufacturer of the Equipment.
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13.
TRANSPORTATION AND INSTALLATION:
The
Equipment is to be installed at the location indicated on the Equipment
Schedule.
All
transportation, rigging, drayage, and any other charges for the delivery of
the
Equipment to Lessee's premises shall be paid by the Lessee, unless indicated
otherwise on the Equipment Schedule. All installation charges shall be paid
by
Lessee unless indicated otherwise on the Equipment Schedule. All charges for
the
deinstallation shall be paid by Xxxxxx. Transportation, rigging, and drayage
from Xxxxxx's premises at the termination of the Lease shall be arranged for
by
Xxxxxx and paid by Xxxxxx.
If
Xxxxxx’s preferred vendor quote is less than or equal to Xxxxxx’s vendor quote
for the Equipment, Lessor shall be obligated to use Xxxxxx’s preferred vendor to
procure the Equipment. Furthermore, regardless of the relative
quote
received
from Xxxxxx's preferred vendor, if Xxxxxx's preferred vendor
cannot
supply the specified and requested Equipment, Lessee shall have
the
option to use a vendor of its choice.
14.
XXXXXX'S REMEDIES IN THE EVENT OF DEFAULT:
In
the
event (a) Lessee fails to pay any Monthly Rental Payment or any other amount
due
to Lessor hereunder within ten (10) days after the same is due, or (b) Lessee
fails to perform or observe any of its other material agreements or material
obligations under this Lease for a period of ten (10) days after written notice
thereof is issued by Lessor to Lessee, or (c) Lessee becomes insolvent or admits
in writing its inability to pay its debts as they mature or makes an assignment
for the benefit of creditors, or (d) a petition is filed by or against Lessee
or
any guarantor under any bankruptcy, insolvency or similar legislation, or for
the appointment of a receiver or trustee for any or all of its property, or
(e)
any warranty, representation, statement or report made in writing by Lessee
in
this Lease or any document or certificate furnished in connection herewith
proves to have been untrue or incorrect in any material respect, (collectively
defined herein as “Events of Default”), then, only after (i) Lessee receives
written notice from Lessor of Xxxxxx’s Event of Default under items (a)-(e) and
(ii) twenty (20) days to cure such said default, , Lessor may, at its option,
do
any or all of the following:
(1) In the case where such event occurs during the Initial Term of the
Lease: (i) terminate Lessee's right to possession and retake possession of
the
Equipment and for this purpose Lessor may enter upon Lessee's premises, or
such
other premises where the Equipment may be kept at any time, with or without
notice; (ii) sell, dispose of, hold, use or lease all or any of the Equipment
as
Lessor, in its sole discretion, may decide (but in no event shall Lessor be
obligated so to do).
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Lessee
shall continue to be responsible for the Monthly Rental Payments for all
Equipment for the balance of the Initial Term, and Lessor may, at its option,
elect to accelerate said payments such that all of the same shall be due upon
such election; provided, however, that, in the event that Lessor sells or
re-leases the Equipment, Lessee's liability shall be limited as follows: (a)
If
the Equipment is sold: Lessee shall be responsible for the actual value to
Lessor of the Lease of that Equipment, computed as of the date of sale according
to the sum of the Monthly Rental Payments past due, plus the present value
of
the future Monthly Rental Payments for the entire balance of the Initial Term
(associated with the sold Equipment) to become due, discounted at the rate
of 5%
per annum, LESS the net sale price of the Equipment, and "net sale price" shall
mean the gross sales price less any anticipated residual value of the Equipment
and all reasonable expenses
of sale, including attorneys' fees incurred in connection with the disposition,
advertising costs, commissions, transportation charges, installation costs
and
other like expenses to be included in a schedule to be provided by Lessor to
Lessee at the time of such sale of Equipment.
Any
excess of the net sale price shall be retained by Lessor; and (b) If the
Equipment is re-leased: Lessee shall be responsible for the actual value to
Lessor of the Lease to Lessee of the Equipment that is re-leased, computed
as of
the date of re-lease according to the sum of the Monthly Rental Payments past
due, plus the present value of the future Monthly Rental Payments for the entire
balance of the Initial Term (associated with the re-leased Equipment) to become
due under this Lease, discounted at the rate of 5% per annum, LESS an amount
equal to the actual cash proceeds received by Lessor from a discounting by
an
Assignee of the present value of all lease payments to become due under the
re-lease up to the date that the Lease to Lessee would have terminated,
discounted at the rate used by such Assignee to discount such re-lease rents
for
Lessor, minus all reasonable costs incurred by Lessor in re-leasing, including
legal fees incurred in connection with disposition, advertising costs,
commissions, transportation costs, removal and installation costs and like
charges to be included in a schedule to be provided by Lessor to Lessee at
the
time of such re-leasing of Equipment.
Lessee
shall further be responsible for a service charge on all Monthly Rental Payments
and all other monies due but unpaid for more than ten (10) days (including
the
balance of the Monthly Rental Payments for the Initial Term in the event of
an
acceleration thereof), equal to one and one-half percent (1-1/2%), or the
highest rate permissible by law, whichever is less, on the amount thereof
(exclusive of accumulated service charges), for each month or fraction thereof
that said monies are past due, in addition to the amounts due and
unpaid.
(2)
In the case where such event occurs after the Initial Term of the Lease: (i)
terminate Xxxxxx's right to possession and retake possession of the Equipment
and, for this purpose, Lessor may enter upon Lessee's premises or such other
premises where the Equipment may be kept, at any time, with or without notice,
(ii) sell, dispose of, hold, use or lease all or any of the Equipment as Lessor
in its sole discretion may decide, (but in no event shall Lessor be obligated
so
to do, nor shall Lessee be entitled to an accounting or any credit for the
same), and (iii) Lessee shall have no further right to possession or any
interest in the Equipment, the same reverting entirely to the Lessor.
11
Lessee
shall be responsible for the Monthly Rental Payments for all Equipment for
the
two-month notice period as described in Section 3 hereof.
Lessee
shall further be responsible for a late charge on all monies due but unpaid
for
more than ten (10) days after the due date (including the balance of the Monthly
Rental Payments for the Initial Term in the event of an acceleration), of one
and one-half percent (1-1/2%), or the highest rate permissible by law, whichever
is less, on the amount thereof (exclusive of accumulated service charges),
for
each month or fraction thereof that said monies are past due.
Xxxxxx agrees to reimburse Lessor for all reasonable charges,
costs (including, without limit, court costs), expenses and attorneys' fees
incurred by Lessor :(i) in defending or protecting its interest in the
Equipment, (ii) in the execution, delivery, administration, amendment and/or
enforcement of this Lease or the collection of any Monthly Rental Payments
under
this Lease, and (iii) in any lawsuit or other legal proceeding to which this
Lease gives rise, including, but not limited to, actions in tort. The rights
afforded Lessor under this Section 14 shall not be deemed to be exclusive but
shall be in addition to any rights or remedies provided by law.
TO
INDUCE
LESSOR TO ENTER INTO THIS LEASE, LESSEE WAIVES THE RIGHT TO REPUDIATE OR CANCEL
THIS LEASE; THE RIGHT TO REJECT TENDER OF THE EQUIPMENT; THE RIGHT TO REVOKE
ACCEPTANCE OF THE EQUIPMENT; THE RIGHT TO RECOVER DAMAGES FOR ANY BREACH OF
WARRANTY OR FOR ANY OTHER REASON OR TO DEDUCT FROM ANY AMOUNTS OWING HEREUNDER
ALL OR ANY PART OF THE CLAIMED DAMAGES RESULTING FROM XXXXXX'S DEFAULT, IF
ANY,
UNDER THIS LEASE; AND SUCH OTHER RIGHTS AS MAY HAVE BEEN CONFERRED UPON LESSEE
BY SECTIONS 2A-401, 2A-402, AND 2A -508 TO 522 OF THE UCC. XXXXXX AGREES THAT,
IN THE EVENT OF ANY CONFLICT BETWEEN ARTICLE 2A OF THE UCC AND THIS LEASE,
THE
TERMS AND CONDITIONS OF THIS LEASE SHALL PREVAIL.
15.
REMEDIES IN THE EVENT OF A MERGER, CONSOLIDATION OR CHANGE OF CONTROL. In the
event that Lessee has terminated its corporate existence or consolidates with,
or merges into, or sells or leases all or substantially all of its assets to,
any individual, corporation, or other entity that results in a material adverse
change in the financial condition of Lessee, Lessor may, in its sole discretion,
1) allow Lessee to prepay its obligation under the Lease by paying (a) the
sum
of all remaining rental payments through the end of the Lease term discounted
to
its present value using a discount rate equal to 6% and then purchase the
equipment at FMV as provided in Section 3; or 2) honor the then existing Lease
term and Equipment Schedule.
12
16.
LESSEE REPRESENTATIONS AND WARRANTIES. If Lessee is a corporation, limited
partnership, limited liability company or other organization registered with
the
secretary of state or other central filing office in the state of its
organization, Lessee hereby represents and warrants to Lessor as follows: (a)
Lessee is a __ corporation/___ limited partnership;__ limited liability
company__ _____________________,[place x by applicable entity type] duly
organized and validly existing in good standing under the laws of the State
of
_____________________ (the "State of Organization"); (b) Lessee's state
organizational identification number, as reflected on its filed articles of
organization filed in the State of Organization or as otherwise assigned by
the
State of Organization is correctly set forth in Addendum A attached hereto
and
Lessee has provided to Lessor a true, complete and legible copy of such filed
articles of organization, or if the State of Organization did not issue Lessee
a
state organizational identification number, Lessee represents and warrants
to
Lessor that no such number was ever issued; (c) Lessee will not change its
state
of organization or its state organizational identification number without the
prior written consent of Lessor; (d) Lessee has full power and authority to
hold
property under the Lease and to enter into and perform its obligations under
the
Lease and this Master Lease; and (e) the execution, delivery and performance
by
Xxxxxx of the Lease and this Master Lease have been duly authorized by all
necessary organizational action on the part of Xxxxxx, and are not inconsistent
with Xxxxxx's organizational documents.
17.
RELEASE OF COLLATERAL:
In
furtherance of the Master Lease, Xxxxxx has pledged certain network equipment,
(“Collateral Equipment”) attached hereto as Appendix A, granting Lessor a
security interest in the Collateral Equipment. As Lessee satisfies payment
milestones pursuant to the Monthly Rental Payments, Lessor shall release its
security interest as follows: 1) upon completion of 12 Monthly Rental Payments,
Lessor shall release its security interest in the equipment purchased from
Servers Direct, Insight, Xxxxxxx and BCI; 2) upon completion of 18 Monthly
Rental Payments, Lessor shall release its security interest in 50% of the value
of the equipment purchased from SBC and the equipment purchased from Til-Tek;
and 3) upon completion of 24 Monthly Rental Payments, Lessor shall release
its
security interest in the balance of the value of the equipment purchased from
SBC and the equipment purchased from Terabeam. Lessor shall cause all necessary
documents, including but not limited to UCC and other filings, to be filed
to
evidence the release of the security interest.
13
18.
GENERAL:
A.
The Equipment remains the personal property of Lessor and may be removed at
any
time, without notice, after termination of this Lease. The Equipment is
removable from and is not essential to the premiises at which the Equipment
is
located.
B.
At Lessor's request, Lessee shall affix to the Equipment and each unit or
element thereof, in a prominent place, appropriate tags, decals, or plates
stating that the Equipment is owned by Lessor, and Lessee shall not cause or
permit any such tags, decals, or plates to be removed, defaced or covered in
any
way.
C.
It is agreed that Lessee may, with Xxxxxx's prior written consent, which shall
not be unreasonably withheld, install and operate the Equipment at other
locations or sublease any or all of such Equipment to locations within the
continental United States. It is understood and agreed, however, that any such
action by Lessee shall be at its sole cost and expense and shall not relieve
Lessee from any of its obligations under this Lease. In addition, if such
relocation results in any increased costs to Lessor, of any nature whatsoever,
such increased costs shall be promptly paid by Lessee to Lessor upon
presentation to Lessee of evidence supporting such cost. Xxxxxx agrees to
execute any documents necessary to protect Xxxxxx's interest in said
Equipment.
D.
Each Equipment Schedule (and this Master Lease to the extent incorporated
therein), shall constitute the entire agreement between Lessor and Lessee with
respect to the lease of the Equipment described in each Equipment Schedule.
No
waiver, consent, modification or change of terms of this Lease shall bind either
party, including Xxxxxx's Assignee, unless in writing and signed by an officer
of the waiving party, and then such waiver, consent, modification or change
shall be effective only in the specific instance and for the specific purpose
given.
E.
Each Equipment Schedule shall be executed in counterparts. Only that counterpart
of an Equipment Schedule marked "Secured Party's Original" (together with a
xerox copy of this Master Lease) shall constitute "chattel paper" under the
UCC
and be effective to transfer Lessor's rights therein and all other counterparts
of such Equipment Schedule have been marked to indicate that they are not the
"Secured Party's Original."
F.
All notices and other communications hereunder shall be in writing and
shall be transmitted by hand, overnight courier, United States first class
mail
or certified mail (return receipt requested), postage prepaid. Such notices
and
other communications shall be addressed to the respective party at the address
set forth above or at such other address as any party may from time to time
designate by notice duly given in accordance with this section. Notices shall
be
deemed received on the earlier of (i) three days after deposit, postage prepaid,
in the United States mail, if sent by United States first class, certified,
or
registered mail; (ii) the next day after delivery to an overnight courier,
expenses prepaid, or (iii) the date of actual delivery if delivered by
hand.
14
G.
Any provision hereof prohibited by, or unlawful or unenforceable under, any
applicable law of any jurisdiction shall, at the sole option of the Lessor,
be
ineffective as to such jurisdiction without invalidating the remaining
provisions of this Lease; provided, however, that where the provisions of any
such applicable law may be waived, they are hereby waived by Lessee to the
full
extent permitted by law, and this shall be deemed to be a valid and binding
Lease enforceable in accordance with its terms.
H.
RESERVED
I.
This Lease shall be binding upon and inure to the benefit of Lessor and
Xxxxxx and their respective successors, assigns and permitted sublessees
(subject, with respect to Lessee, to the provisions of Section 12 setting forth
restrictions on Lessee's ability to assign this Lease or sublease the
Equipment).
X.
Xxxxxx hereby authorizes Lessor to execute and/or file against Lessee in
any public filing office deemed advisable by Xxxxxx, any and all UCC financing
statements (and amendments thereto) describing the Equipment and this Lease,
and
Xxxxxx further irrevocably appoints Lessor as Xxxxxx's attorney in fact to
execute and/or file any and all such UCC financing statements (and amendments
thereto) as Lessor considers advisable.
The
filing of UCC Financing Statements against Lessee is precautionary and shall
not
be evidence that the Lease is intended as security. If for any reason the Lease
is determined not to be a true lease, but a lease intended as security, Lessee
hereby grants Lessor a security interest in the Equipment and the proceeds
thereof, including proceeds of any re-lease, sale or other disposition of the
Equipment to secure all of Lessee's obligations under the Lease. A carbon,
photographic or other reproduction of this Master Lease and the applicable
Equipment Schedule may be filed as a financing statement.
K.
Notwithstanding any other provisions of this Lease Agreement to the contrary,
Xxxxxx agrees, following the execution of the Lease by Xxxxxx, to provide to
Lessor at Lessor's demand, from time to time, any and all information reasonably
required to establish Xxxxxx's creditworthiness, including, but not limited
to,
financial statements and profit and loss statements, for the current period
and
for the proceeding three fiscal years. Xxxxxx agrees that such information
shall
be kept confidential.
During
the term of the Lease, as an additional condition of Xxxxxx's performance,
Xxxxxx agrees to provide financial statements to Lessor within a reasonable
period following the end of Xxxxxx's fiscal year.
15
Lessee
and Lessor do each hereby warrant and represent that their respective
signatories whose signatures appear below have been and are on the date of
this
Lease duly authorized by all necessary and appropriate action to execute this
Lease.
L.
This Lease shall be governed by the laws of the State of Minnesota
(without giving effect to principles of conflicts of law thereof). Lessee
hereby: (i) irrevocably submits to the jurisdiction of any state or federal
court located in Dakota County, Minnesota, over any action or proceeding to
enforce or defend any matter arising from or related to this Lease; (ii)
irrevocably waives, to the fullest extent Lessee may effectively do so, the
defense of an inconvenient forum to the maintenance of any such action or
proceeding; and (iii) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in any other jurisdictions
by
suit on the judgment or in any other manner provided by law. Nothing in this
paragraph shall affect or impair Xxxxxx's right to serve legal process in any
manner permitted by law or Lessor's right to bring any action or proceeding
against Lessee or its property in the courts of any other
jurisdiction.
X.
XXXXXX AND XXXXXX XXXXXX WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING
OUT OF THIS LEASE OR ANY OTHER AGREEMENT EXECUTED IN CONNECTION HEREWITH.
IN
WITNESS WHEREOF, Xxxxxx and Xxxxxx have executed this Master Lease on the dates
specified below. This Master Lease shall not become effective until accepted
by
Lessor, as evidenced by its signature below.
LESSEE:
KeyOn Communications LLC
ACCEPTED
By:
/s/ Xxxxxxxx Xxxxxx
Date:
8/19/05
Title:
Managing
Member
LESSOR:
Data Sales Company
By:
/s/ Xxxx X. Xxxxxxxx
Date:______________
Title:
President
and CEO
16
ADDENDUM
A TO MASTER ELECTRONIC EQUIPMENT LEASE
LEASE
NO.
3-9993 DATED:
08/18/05
Lessee
hereby represents and warrants to Lessor as follows:
(a) Lessee
is
a: o
corporation,
x limited
liability company,
o
limited
partnership,
or
o
duly
organized
and validly existing in good standing under the laws of the
State
of
____Nevada______________
(the "State of Organization")
(b)
Lessee's organizational identification is Charter # __LLC2204-2002_______,
Federal
ID # __________________or Social Security # ______________
By:________________________________________
Title:_______________________________________
