AIG COMMERCIAL EQUIPMENT FINANCE, INC.
Exhibit 10.5
AIG COMMERCIAL EQUIPMENT FINANCE, INC.
THIS MASTER OPERATING LEASE AGREEMENT (this “Lease”) is made as of July 21, 2010, between AIG
COMMERCIAL EQUIPMENT FINANCE, INC its successors and assigns (“Lessor”), and C&J SPEC-RENT
SERVICES, INC and C&J ENERGY SERVICES, INC, their successors and permitted assigns, jointly and
severally (collectively “Lessee”)
Lessee desires to lease from Lessor the equipment and other property (the “Equipment”)
described in each Equipment Schedule executed pursuant to this Lease (each, a “Schedule”)
incorporating by reference the terms and conditions of this Lease (the term “Lease” shall also
include any Riders to this Lease entered into with respect to such Schedule) Certain definitions
and construction of certain of the terms used in this Lease are provided in Section 19 hereof
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged the parties to this Lease agree as follows
1 AGREEMENT TO LEASE; TERM This Lease is effective as of the date specified above By entering
into a
Schedule, Lessor leases the Equipment described therein to Lessee, and Lessee leases such
Equipment from Lessor, in each case, subject to the terms and conditions in this Lease and such
Schedule and all of the other documents and agreements executed in connection herewith
(collectively the “Lease Documents”) Each Schedule, incorporating the terms and conditions of this
Lease, will constitute a separate instrument of lease The term of lease with respect to each item
of Equipment leased under a Schedule shall commence on the date of execution of such Schedule and
continue for the term provided in that Schedule
2 RENT Lessee shall pay Lessor (a) the rental installments
(“Basic Rent”) as and when specified
in each Schedule without demand, and (b) all of the other amounts payable in accordance with this
Lease, such Schedule and/or any of the other Lease Documents (“Other Payments”, and together with
the Basic Rent, collectively, the “Rent”) Upon Lessee’s execution thereof, except as expressly
stated in the Lease Documents the related Schedule shall constitute a non-cancelable net lease, and
Lessee’s obligation to pay Rent, and otherwise to perform its obligations under or with respect to
such Schedule and all of the other Lease Documents, are and shall be absolute and unconditional and
shall not be affected by any circumstances whatsoever, including any right of setoff, counterclaim,
recoupment, deduction, defense or other right which Lessee may have against Lessor, the
manufacturer or vendor of the Equipment (the “Suppliers”), or anyone else, for any reason
whatsoever (each, an “Abatement”) Lessee agrees that all Rent shall be paid in accordance with
Lessor’s or Assignee’s written direction Time is of the essence If any Rent is not paid within five
(5) days of the due date, Lessee shall pay a late charge equal to five (5) percent of the amount in
arrears
3 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF LESSEE Lessee represents, warrants and agrees
that, as of the effective date of this Lease and of each Schedule (a) Lessee has the form of
business organization indicated, and is and will remain duly organized and existing in good
standing under the laws of the state specified, under Lessee’s signature and is duly qualified to
do business wherever necessary to perform its obligations under the Lease Documents, including each
jurisdiction in which the Equipment is or will be located Lessee’s legal name is as shown in the
preamble of this Lease, and Lessee’s Federal Employer Identification Number and organizational
number are as set forth under Lessee’s signature Except as has been disclosed to Lessor in writing,
within the previous six (6) years, Lessee has not changed its name, done business under any other
name, or merged or been the surviving entity of any merger, except as disclosed to Lessor in writing
(b) The Lease Documents (1) have been duly authorized by all necessary action consistent with
Lessee’s form of organization, (2) do not require the approval of, or giving notice to, any
governmental authority, (3) do not contravene or constitute a default under any applicable law,
Lessee’s organizational documents, or any agreement, indenture or other instrument to which Lessee
is a party or by which it may be bound, and (4) constitute legal, valid and binding obligations of
Lessee enforceable against Lessee, in accordance with the terms thereof (c) There are no pending
actions or proceedings to which Lessee is a party, and there are no other pending or threatened
actions or proceedings of which Lessee has knowledge, before any court, arbitrator or
administrative agency, which, either individually or in the aggregate, would have a Material
Adverse Effect As used herein, “Material Adverse Effect” shall mean (i) a materially adverse effect
on the business, condition (financial or otherwise), operations performance or properties of Lessee
which materially impairs Lessee’s ability to pay its debts as they come due or on Lessor’s rights
and remedies under this Lease or (II) a material impairment of the ability of Lessee to perform its
obligations under or remain in compliance with such
Schedule or any of the other Lease Documents. Further, Lessee is not in default under any
financial or other material agreement that, either individually, or in the aggregate, would have a
Material Adverse Effect, (d) All of the Equipment covered by such Schedule is located solely in the
jurisdiction(s) specified in such Schedule, (e) Under the applicable laws of each such
jurisdiction, such Equipment consists (and shall continue to consist) solely of personal property
and not fixtures. Such Equipment is removable from and is not essential to the premises at which it
is located, (f) The financial statements of Lessee (copies of which have been furnished to Lessor)
have been prepared in accordance with generally accepted accounting principles consistently applied
(“GAAP”), and fairly present Lessee’s financial condition and the results of its operations as of
the date of and for the period covered by such statements, and since the date of such statements
there has been no change which would have a Material Adverse Effect on such conditions or
operations, (g) With respect to any Collateral, Lessee has good title to, rights in, and/or power
to transfer all of the same, (h) The Supplier is not an affiliate of Lessee, (i) The Supply
Contract (as such term is hereinafter defined) represents an arms’ length transaction and the
purchase price for the Equipment specified therein is the amount obtainable in an arms’ length
transaction between a willing and informed buyer and a willing and informed seller under no
compulsion to sell.
4. FURTHER ASSURANCES AND OTHER COVENANTS. Lessee agrees as follows: (a) Lessee will furnish
Lessor with (1) Lessee’s balance sheet, statement of income and statement of retained earnings,
prepared in accordance with GAAP, audited by a recognized firm of certified public accountants,
within one hundred twenty (120) days of the close of each fiscal year of Lessee, (2) Lessee’s
quarterly financial report certified by the chief financial officer of Lessee, within sixty (60)
days of the close of each fiscal quarter of Lessee, and (3) all of Lessee’s Forms 10-K and 10-Q, if
any, filed with the Securities and Exchange Commission (“SEC”) as and when filed (by furnishing
these SEC forms, or making them publicly available in electronic form, in each case, within the
time periods set forth in clauses (1) and (2), Lessee shall be deemed to have satisfied the
requirements of clauses (1), (2) and (3)). (b) Lessee shall obtain and deliver to Lessor and/or
promptly execute or otherwise authenticate any documents, filings, waivers (including any landlord
and mortgagee waivers), releases and other records, and will take such further action as Lessor may
reasonably request in furtherance of Lessor’s rights under any of the Lease Documents (provided,
however, that Lessee will not be required to provide any opinions from legal counsel or take other
action which would result in substantial cost to Lessee). Lessee irrevocably authorizes Lessor to
file UCC financing statements (“UCCs”), and other filings with respect to the Equipment or any
Collateral. Without Lessor’s prior written consent, Lessee agrees not to file any corrective or
termination statements or partial releases with respect to any UCCs filed by Lessor pursuant to
this Lease, (c) Lessee shall provide written notice to Lessor: (1) thirty (30) days prior to any
change in Lessee’s name or jurisdiction or form of organization; (2) promptly upon the occurrence
of any Event of Default (as defined in Section 15) or event which, with the lapse of time or the
giving of notice, or both, would become an Event of Default (a “Default”); and (3) promptly upon
Lessee becoming aware of any alleged violation of applicable law relating to the Equipment or this
Lease, (d) Lessee has been advised by Lessor that the USA Patriot Act establishes minimum standards
of account information to be collected and maintained by Lessor, and that to help the government
fight the funding of terrorism and money laundering activities, Federal law requires all financial
institutions to obtain, verify and record information that identifies each person who opens an
account; and specifically, this means that when Lessee executes this Lease, Lessor may ask for
Lessee’s name and address, the date of birth of the officers executing this Lease, and other
information that will allow Lessor to identify Lessee; and that Lessor may also ask to see the
driver’s license or other identifying documents of the officers of Lessee executing this Lease, (e)
Lessee is and will remain in full compliance with all applicable laws including, without
limitation, (i) ensuring that no person who owns a controlling interest in or otherwise controls
Lessee is or shall be (A) listed on the Specially Designated Nationals and Blocked Person List
maintained by the Office of Foreign Assets Control (“OFAC”), Department of the Treasury, and/or any
other similar lists maintained by OFAC pursuant to any authorizing statute, Executive Order or
regulation, or (B) a person designated under Sections 1(b), (c) or (d) of Executive Order No. 13224
(September 23, 2001), any related enabling legislation or any other similar Executive Orders, and
(ii) compliance with all applicable Bank Secrecy Act (“BSA”) laws, regulations and government
guidance on BSA compliance and on the prevention and detection of money laundering violations.
5. CONDITIONS PRECEDENT. Lessor’s agreement to purchase and lease any Equipment under a
Schedule, is conditioned upon Lessor’s determination that all of the following have been satisfied:
(a) Lessor having received the following, in form and substance reasonably satisfactory to Lessor:
(1) evidence as to due compliance with the insurance provisions of Section 11; (2) if requested,
lien searches in the jurisdiction of Lessee’s organization, and wherever else Lessor deems
appropriate; (3) UCCs, real property waivers and all other filings required by Lessor; (4) a
certificate of an appropriate officer of Lessee certifying: (A) resolutions duly authorizing the
transactions contemplated in the applicable Lease Documents, and (B) the incumbency and signature
of the officers of Lessee authorized to execute such documents; (5) the only manually executed
original of the Schedule, and counterpart originals of all other Lease Documents; (6) all purchase
documents pertaining to the Equipment (collectively, the “Supply Contract”); (7) if requested by
Lessor, good standing certificates from the jurisdiction of Lessee’s organization and the location
of the Equipment, and evidence of Lessee’s organizational number; and (8) such other documents,
agreements, instruments, certificates and assurances (other than legal opinions), as Lessor
reasonably may require consistent with the terms and conditions of the
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Lease Documents, (b) All representations and warranties provided by Lessee in favor of Lessor
in any of the Lease Documents shall be true and correct in all material respects on the effective
date of the related Schedule (Lessee’s execution and delivery of the Schedule shall constitute
Lessee’s acknowledgment of the same), (c) There shall be no Default or Event of Default under the
Schedule or any other Lease Documents, (d) The Equipment shall have been delivered to and accepted
by Lessee, as evidenced by the Schedule, and shall be in the condition and repair required hereby;
and on the effective date of such Schedule Lessor shall have received good title to the Equipment
described therein, free and clear of any claims, liens, attachments, rights of others and legal
processes (“Liens”), (e) No event shall have occurred which would have a Material Adverse Effect
with respect to Lessee.
6. ACCEPTANCE UNDER LEASE. Upon delivery, Lessee shall inspect and, if conforming to the condition
required by the applicable Supply Contract, accept the Equipment and execute and deliver to Lessor
a Schedule describing such Equipment. The Schedule will evidence Lessee’s unconditional and
irrevocable acceptance under the Schedule of the Equipment described therein. However, if Lessee
fails to accept delivery of any item of the Equipment, or accepts such Equipment but fails to
satisfy any or all of the other conditions set forth in Section 5, Lessor shall have no obligation
to purchase or lease such Equipment. Lessor will cooperate with Lessee (at Lessee’s expense) to
assign to Lessee all of Lessor’s rights with respect to such equipment. In such event, Lessor’s
rights shall include, among other things, the right to demand that Lessee (a) fully assume all
obligations as purchaser of the Equipment, with the effect of causing Lessor to be released from
any liability relating thereto, (b) immediately remit to Lessor an amount sufficient to reimburse
it for all advance payments, costs, taxes or other charges paid or incurred with respect to the
Equipment (including any of such amounts paid by Lessor to Supplier under the Supply Contract or as
a reimbursement to Lessee), together with interest at the Default Rate accruing from the date or
dates such amounts were paid by Lessor until indefeasibly repaid by Lessee in full, and (c) take
all other actions necessary to accomplish such assumption.
7. USE AND MAINTENANCE. (a) Lessee shall (1) use the Equipment solely in the continental United
States and in the conduct of its business, for the purpose for which the Equipment was designed, in
a careful and proper manner, and shall not permanently discontinue use of the Equipment; (2)
operate, maintain, service and repair the Equipment, and maintain all records and other materials
relating thereto, (A) in accordance and consistent with (i) the Supplier’s recommendations and all
maintenance and operating manuals or service agreements, whenever furnished or entered into,
including any subsequent amendments or replacements thereof, issued by the Supplier or service
provider, (ii) the requirements of all applicable insurance policies, (iii) the Supply Contract, so
as to preserve all of Lessee’s and Lessor’s rights thereunder, including all rights to any
warranties, indemnities or other rights or remedies, (iv) all applicable laws, and (v) the prudent
practice of other similar companies in the same business as Lessee, but in any event, to no lesser
standard than that employed by Lessee for comparable equipment owned or leased by it; and (B)
without limiting the foregoing, so as to cause the Equipment to be in good repair and operating
condition and in at least the same condition as when delivered to Lessee hereunder, except for
ordinary wear and tear resulting despite Lessee’s full compliance with the terms hereof; (3)
provide written notice to Lessor not less than thirty (30) days after any change of the location of
any Equipment (or the location of the principal garage of any Equipment, to the extent that such
Equipment is mobile equipment) as specified in the Schedule; and (4) not attach or incorporate the
Equipment to or in any other property in such a manner that the Equipment may be deemed to have
become an accession to or a part of such other property, (b) Within a reasonable time, Lessee will
replace any parts of the Equipment which become worn out, lost, destroyed, damaged beyond repair or
otherwise unfit for use, by new or reconditioned replacement parts which are free and clear of all
Liens and have a value, utility and remaining useful life at least equal to the parts replaced
(assuming that they were in the condition required by this Lease). Any modification or addition to
the Equipment that is required by this Lease shall be made by Lessee. Title to all such parts,
modifications and additions to the Equipment immediately shall vest in Lessor, without any further
action by Lessor or any other person, and they shall be deemed incorporated in the Equipment for
all purposes of the related Schedule. Unless replaced in accordance with this Section, Lessee shall
not remove any parts originally or from time to time attached to the Equipment, if such parts are
essential to the operation of the Equipment, are required by any other provision of this Lease or
cannot be detached from the Equipment without materially interfering with the operation of the
Equipment or adversely affecting the value, utility and remaining useful life which the Equipment
would have had without the addition of such parts. Except as permitted in this Section, Lessee
shall not make any material alterations to the Equipment, (c) Upon forty-eight (48) hours’ notice,
Lessee shall afford Lessor and/or its designated representatives access to the premises where the
Equipment is located for the purpose of inspecting such Equipment and all applicable maintenance or
other records relating thereto at any reasonable time during normal business hours; provided,
however, if a Default or Event of Default shall have occurred and then be continuing, no notice of
any inspection by Lessor shall be required. If any discrepancies are found as they pertain to the
general condition of the Equipment, Lessor will communicate these discrepancies to Lessee in
writing. Lessee shall then have thirty (30) days to rectify these discrepancies at its sole
expense. Lessee shall pay all expenses of a re-inspection by Lessor’s appointed representative, if
corrective measures were required.
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8. DISCLAIMER; QUIET ENJOYMENT, (a) THE EQUIPMENT IS LEASED HEREUNDER “AS IS, WHERE IS”.
LESSOR SHALL NOT BE DEEMED TO HAVE MADE, AND HEREBY DISCLAIMS, ANY REPRESENTATION OR WARRANTY,
EITHER EXPRESS OR IMPLIED, AS TO THE EQUIPMENT, INCLUDING ANY PART, OR ANY MATTER WHATSOEVER,
INCLUDING, AS TO EACH ITEM OF EQUIPMENT, ITS DESIGN, CONDITION, MERCHANTABILITY, FITNESS FOR ANY
PARTICULAR PURPOSE, TITLE, ABSENCE OF ANY PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT OR LATENT
DEFECT (WHETHER OR NOT DISCOVERABLE BY LESSEE), COMPLIANCE OF SUCH ITEM WITH ANY APPLICABLE LAW,
CONFORMITY OF SUCH ITEM TO THE PROVISIONS AND SPECIFICATIONS OF ANY PURCHASE DOCUMENT OR TO THE
DESCRIPTION SET FORTH IN THE RELATED SCHEDULE OR ANY OF THE OTHER LEASE DOCUMENTS, OR ANY
INTERFERENCE OR INFRINGEMENT (EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8(b)), OR ARISING FROM ANY
COURSE OF DEALING OR USAGE OF TRADE, NOR SHALL LESSOR BE LIABLE, FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR STRICT OR ABSOLUTE LIABILITY IN TORT; AND LESSEE HEREBY
WAIVES ANY CLAIMS ARISING OUT OF ANY OF THE FOREGOING. Without limiting the foregoing, Lessor will
not be responsible to Lessee or any other person with respect to, and Lessee agrees to bear sole
responsibility for, any risk or other matter that is the subject of Lessor’s disclaimer; and
Lessor’s agreement to enter into this Lease and any Schedule is in reliance upon the freedom from
and complete negation of liability or responsibility for the matters so waived or disclaimed herein
or covered by the indemnity in this Lease. So long as no Event of Default has occurred, Lessee may
exercise Lessor’s rights, if any, under any warranty, guaranty, indemnity or similar obligation
from the Supplier with respect to the Equipment; and Lessor, at Lessee’s expense, will execute such
documents as Lessee may reasonably request with respect to or in connection with any such
enforcement with respect to the Equipment. Lessee’s exercise of such rights shall be at its sole
risk, shall not result in any prejudice to Lessor, and may be exercised only during the term of the
related Schedule. Lessee shall not attempt to enforce any such warranty, guaranty, indemnity or
similar obligation from the Supplier with respect to the Equipment by legal proceeding without
Lessor’s prior written approval (which approval shall not unreasonably be withheld or delayed), (b)
Lessor warrants that during the term of each Schedule, so long as no Event of Default has occurred,
Lessee’s possession and use of the Equipment leased thereunder shall not be interfered with by
Lessor or anyone rightfully claiming an interest through Lessor. The preceding warranty is in lieu
of all other warranties by Lessor, whether written, oral or implied, with respect to this Lease or
the Equipment. Any actual or purported breach of this warranty shall not give rise to any
Abatement, but Lessee may bring a direct cause of action against Lessor for any actual damages
directly resulting from any such breach. NEITHER LESSOR NOR LESSEE SHALL BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION HEREWITH (EXCEPT AS AND TO THE
EXTENT AWARDED AS PART OF THE DAMAGES CONSTITUTING A CLAIM WITHIN THE SCOPE OF SECTION 14(b)
HEREOF).
9. FEES AND TAXES. Lessee agrees to: (a) (1) if permitted by law, file in Lessee’s own name or
on Lessor’s behalf, directly with all appropriate taxing authorities all declarations, returns,
inventories and other documentation with respect to any personal property taxes (or any other taxes
in the nature of or imposed in lieu of property taxes) due or to become due with respect to the
Equipment, and if not so permitted by law, to promptly notify Lessor and provide it with all
information required in order for Lessor to timely file all such declarations, returns,
inventories, or other documentation, and (2) pay on or before the date when due all such taxes
assessed, billed or otherwise payable with respect to the Equipment directly to the appropriate
taxing authorities; (b) (1) pay before past due as requested by Lessor, and (2) defend and
indemnify Lessor on a net after-tax basis against liability for all license and/or registration
fees, assessments, and sales, use, property, excise, value added and other similar taxes or other
charges or fees now or hereafter imposed by any governmental body or agency upon the Equipment or
with respect to the manufacture, shipment, purchase, ownership, delivery, installation, leasing,
operation, possession, use, return, or other disposition thereof or the Rent hereunder (other than
taxes on or measured solely by the net income of Lessor (except as and to the extent expressly
addressed in Section 14(b) hereof), franchise taxes, taxes based on Lessor’s authority to do
business in a particular jurisdiction, and similar taxes); and (c) indemnify Lessor against any
penalties, charges, interest or costs imposed with respect to any items referred to in clauses (a)
and (b) above (the items referred to in clauses (a), (b), and (c) above being referred to herein as
“Impositions”). Any Impositions which are not paid before past due and which are paid by Lessor
shall, at Lessor’s option, become immediately due from Lessee to Lessor.
10. TITLE; GRANTING CLAUSE. (a) Lessee and Lessor intend that: (1) each Schedule,
incorporating by reference the terms of this Lease, constitutes a true “lease” and a “finance
lease” as such terms are defined in Article 2A and not a sale or retention of a security interest;
and (2) Lessor is and shall remain the owner of each item of Equipment (unless sold by Lessor
pursuant to any Lease Document), and Lessee shall not acquire any right, title or interest in or to
such Equipment except the right to use it in accordance with the terms of the related Schedule, (b)
In order to secure the prompt payment of the Rent and all of the other amounts from time to time
outstanding with respect hereto and to each Schedule, and the performance and observance by Lessee
of all of the provisions hereof and thereof and of all of the other Lease Documents, Lessee hereby
collaterally assigns, grants, and conveys to Lessor, a security interest in and lien on all of
Lessee’s right, title and interest in and to all of the following (whether now existing or
hereafter created, and including any other collateral described on any rider hereto; the
“Collateral”): (1) (if contrary to the parties’ intentions a court determines
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that such Schedule is not a true “lease” under the UCC) the Equipment described in such Schedule or
otherwise covered thereby (including all inventory, fixtures or other property comprising the
Equipment), together with all related software (embedded therein or otherwise) and general
intangibles, all additions, attachments, accessories and accessions thereto whether or not
furnished by the Supplier; (2) all subleases and payments becoming due thereunder, chattel paper,
security deposits, and general intangibles relating thereto, and any and all substitutions,
replacements or exchanges for any such item of Equipment or other collateral, in each such case in
which Lessee shall from time to time acquire an interest; and (3) any and all insurance and/or
other proceeds of the property and other collateral in and against which a security interest is
granted hereunder. The collateral assignment, security interest and lien granted herein shall
survive the termination, cancellation or expiration of each Schedule until such time as Lessee’s
obligations thereunder and under the other Lease Documents are fully and indefeasibly discharged,
(c) If contrary to the parties’ intentions a court determines that any Schedule is not a true
“lease”, the parties agree that in such event Lessee agrees that: (1) with respect to the
Equipment, in addition to all of the other rights and remedies available to Lessor hereunder upon
the occurrence of an Event of Default, Lessor shall have all of the rights and remedies of a first
priority secured party under the UCC; and (2) any obligation to pay Basic Rent or any Other
Payment, to the extent constituting the payment of interest, shall be at an interest rate that is
equal to the lesser of the maximum lawful rate permitted by applicable law or the effective
interest rate used by Lessor in calculating such amounts.
11. INSURANCE. Upon acceptance under a Schedule, until the Equipment is returned to Lessor in
accordance with this Lease, Lessee shall maintain all-risk insurance coverage with respect to the
Equipment insuring against, among other things: (a) any casualty to the Equipment (or any portion
thereof), including loss or damage due to fire and the risks normally included in extended
coverage, malicious mischief and vandalism, for not less than the full replacement value of the
Equipment; and (b) any commercial liability arising in connection with the Equipment, including
both bodily injury and property damage with a combined single limit per occurrence of not less than
the amount specified in the Schedule; having a deductible as specified in the applicable Schedule
or (if not so specified) then as reasonably satisfactory to Lessor. The required insurance policies
(including endorsements) shall (i) be in form and amount reasonably satisfactory to Lessor, and
written by insurers of recognized reputation and responsibility satisfactory to Lessor (but such
insurer shall carry a current rating by A.M. Best Company of at least “A” for a general
policyholder and a financial rating of at least “VIII”), (ii) be endorsed to name Lessor as an
additional insured (but without responsibility for premiums), (iii) provide that any amount payable
under the required casualty coverage shall be paid directly to Lessor as sole loss payee, and (iv)
provide for thirty (30) days’ written notice by such insurer of cancellation, material change, or
non-renewal.
12. LOSS AND DAMAGE. (a) At all times until the Equipment is returned to Lessor in accordance
with this Lease, Lessee shall bear the risk of loss, theft, confiscation, taking, unavailability,
damage or partial destruction of the Equipment and shall not be released from its obligations under
any Schedule or other Lease Document in any such event, (b) Lessee shall provide prompt written
notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be
provided together with any damage reports provided to any governmental authority, the insurer or
Supplier, and any documents pertaining to the repair of such damage, including copies of work
orders, and all invoices for related charges, (c) Without limiting any other provision hereof,
Lessee shall repair all damage to any item of Equipment from any and all causes, other than a Total
Loss, so as to cause it to be in the condition and repair required by this Lease, (d) A “Total
Loss” shall be deemed to have occurred to an item of Equipment upon: (1) the actual or constructive
total loss of any item of the Equipment, (2) the loss, disappearance, theft or destruction of any
item of the Equipment, or damage to any item of the Equipment that is uneconomical to repair or
renders it unfit for normal use, or (3) the condemnation, confiscation, requisition, seizure,
forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any
Lien thereon by any governmental authority. On the next rent payment date following a Total Loss (a
“Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the
Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss
has occurred (the “Lost Equipment”), together with any Other Payments due hereunder with respect to
the Lost Equipment. Upon making such payment, (i) Lessee’s obligation to pay future Basic Rent
shall terminate solely with respect to the items of Lost Equipment so paid for, but Lessee shall
remain liable for, and pay as and when due, all Other Payments, and (ii) Lessor shall convey to
Lessee all of Lessor’s right, title and interest in the Lost Equipment, “AS IS WHERE IS”, but
subject to the requirements of any third party insurance carrier in order to settle an insurance
claim. As used in this Lease, “Stipulated Loss Value” shall mean the product of the Total Invoice
Cost of the Lost Equipment, times the percentage factor applicable to the Loss Payment Date, as set
forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. After the final rent
payment date of the original term of a Schedule, the Stipulated Loss Value shall be determined as
of the last rent payment date during the original term of such Schedule, and the applicable
percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss
Values incorporated in such Schedule. If Lessee exercises its option to renew the term of a
Schedule, the Stipulated Loss Value applicable during such renewal term shall be determined by
mutual agreement of Lessor and Lessee as evidenced by an amended Schedule of Stipulated Loss Values
to be incorporated in such Schedule, (e) Lessor shall be under no duty to Lessee to pursue any
claim against any person in connection with a Total Loss or other loss or damage but upon request
from Lessee, Lessor shall assign to Lessee all of Lessor’s right, title and interest in any such
claim (subject
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to the requirements of any third party insurance carrier in order to settle an insurance claim
relating thereto) (f) If Lessor receives a payment under an insurance policy required under this
Lease in connection with any Total Loss or other loss of or damage to an item of Equipment, and
such payment is both unconditional and indefeasible, then provided Lessee shall have complied with
the applicable provisions of this Section, Lessor shall either (1) if received pursuant to a Total
Loss remit such proceeds to Lessee up to an amount equal to the amount paid by Lessee to Lessor as
the Stipulated Loss Value, or credit such proceeds against any amounts owed by Lessee pursuant to
Section 12(d), or (2) if received with respect to repairs made pursuant to Section 12(c), remit
such proceeds to Lessee up to an amount equal to the amount of the costs of repair actually
incurred by Lessee, as established to Lessor’s satisfaction
13 SURRENDER (a) Lessee shall provide written notice to Lessor not less than one hundred
eighty (180) days and not more than two hundred forty (240) days prior to the expiration of the
term of any Schedule (or of any renewal thereof, if applicable) of Lessee’s intent to surrender the
Equipment described on such Schedule to Lessor upon the expiration of the term of such Schedule IF
LESSEE FAILS TO PROVIDE THE FOREGOING NOTICE IN A TIMELY MANNER, THE TERM OF THE APPLICABLE
SCHEDULE AUTOMATICALLY SHALL BE DEEMED TO HAVE BEEN EXTENDED, WHICH EXTENSION SHALL CONTINUE UNTIL
ONE HUNDRED EIGHTY (180) DAYS AFTER THE DATE ON WHICH LESSEE PROVIDES THE REQUIRED NOTICE, DURING
WHICH EXTENSION PERIOD LESSEE SHALL CONTINUE TO PAY TO LESSOR PER DIEM RENT AT THE U\ST PREVAILING
LEASE RATE UNDER THE APPLICABLE SCHEDULE, provided, however that Lessor may elect to terminate such
extension at any time upon ten (10) days written notice to Lessee During such extension period, the
terms and conditions of this Lease (including, without limitation, the provisions of this Section
13) shall continue to be applicable Solely for purposes of the definition of Stipulated Loss Value
in Section 12(d) hereof any such extension shall be deemed a renewal of the term of such Schedule
(b) Upon the expiration or earlier cancellation or termination of any Schedule, Lessee shall
surrender and make available at Lessee s site in Corpus Christi Texas, for pickup by Lessor the
Equipment described on such Schedule free and clear of all Liens whatsoever Upon surrender, such
Equipment shall be (i) in the same condition as when delivered to Lessee under the related
Schedule, ordinary wear and tear excepted, (n) mechanically and structurally sound, capable of
performing the functions for which such Equipment was originally designed, in accordance with the
Suppliers published and recommended specifications (as applicable), (m) with all component parts in
good operating condition (and all components must meet or exceed the Supplier’s minimum recommended
specifications unless otherwise agreed by Lessor in writing), (iv) with all software and
documentation necessary for the operation of such Equipment for the performance of the functions
for which such Equipment was originally designed (whether or not such software is embedded in or
otherwise is a part of such Equipment), and (v) cleaned and cosmetically acceptable, with all
Lessee-installed markings removed and all rust, corrosion or other contamination having been
removed or properly treated, and in such condition so that it may be immediately installed and
placed in service by a third party Upon surrender, such Equipment shall be in compliance with all
applicable Federal, state and local laws and health and safety guidelines Lessee shall be
responsible for the cost of all repairs, alterations, inspections, appraisals, storage charges,
insurance costs, demonstration costs and other related costs necessary to cause such Equipment to
be in full compliance with the terms of this Lease (c) If requested by Lessor, Lessee shall also
surrender all related records and other data in Lessee’s possession or control to Lessor, including
all records of maintenance, modifications, additions and major repairs, computerized maintenance
history, and any maintenance and repair manuals (collectively, the “Records”) All manuals or other
documents surrendered to Lessor that are subject to periodic revision will be fully up-to-date and
current to the latest revision standard of any particular manual or document received by Lessee In
the event any such Records are missing or incomplete, Lessor shall have the right to cause the same
to be reconstructed at Lessee’s expense (d) In addition to Lessor’s other rights and remedies
hereunder, if such Equipment and the related Records are not surrendered in a timely fashion, or if
repairs are necessary to place any item of Equipment in the condition required in this Section,
Lessee shall (i) continue to pay to Lessor per diem rent at the last prevailing lease rate under
the applicable Schedule with respect to such item of Equipment, for the period of delay in
surrender, and/or for the period of time reasonably necessary to accomplish such repairs, and (n)
pay to Lessor an amount equal to the aggregate cost of any such repairs Lessor’s acceptance of such
rent on account of such delay and/or repair does not constitute an extension or renewal of the term
of the related Schedule or a waiver of Lessor’s right to prompt surrender of such Equipment in
proper condition Such amount shall be payable upon the earlier of Lessor’s demand or the surrender
of such Equipment in accordance with this Lease (e) Without limiting any other terms or conditions
of this Lease, the provisions of this Section are of the essence of each Schedule, and upon
application to any court of equity having jurisdiction, Lessor shall be entitled to a decree against
Lessee requiring Lessee’s specific performance of its agreements in this Section
14 INDEMNITY (a) General Lessee shall indemnify, defend and keep harmless Lessor and any
Assignee (as defined in Section 17) and their respective agents and employees (each, an
“Indemnitee”) from and against any and all Claims (other than such as may directly and proximately
result from the actual, but not imputed, negligence or willful misconduct of such Indemnitee), by
paying, on a net after-tax basis, or otherwise discharging same, when and as such Claims shall
become due Lessee agrees that the indemnity provided for in this Section includes the agreement by
Lessee to indemnify each Indemnitee with respect to Claims for which such Indemnitee is strictly
liable Lessor shall give Lessee
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prompt notice of any Claim hereby indemnified against and Lessee shall be entitled to control
the defense of and/or to settle any Claim, in each case, so long as (1) no Default or Event of
Default has occurred and is then continuing, (2) Lessee confirms, in writing, its unconditional and
irrevocable commitment to indemnify each Indemnitee with respect to such Claim, (3) Lessee is
financially capable of satisfying its obligations under this Section, (4) Lessor approves the
defense counsel selected by Lessee (such approval not to be unreasonably withheld or delayed), and
(5) there is no reasonable risk of criminal liability being imposed on Lessor or any of its
directors, officers or employees as a result of such Claim. The term “Claims” shall mean all
claims, allegations, xxxxx, judgments, settlements, suits, actions, debts, obligations, damages to
third parties (whether incidental, consequential or direct), demands (for compensation,
indemnification, reimbursement or otherwise), losses, penalties, fines, liabilities (including
strict liability), charges that Lessor has incurred or for which it is responsible, in the nature
of interest, Liens, and costs (including attorneys’ fees and disbursements and any other legal or
non-legal expenses of investigation or defense of any Claim, whether or not such Claim is
ultimately defeated or enforcing the rights, remedies or indemnities provided for hereunder, or
otherwise available at law or equity to Lessor), of whatever kind or nature, contingent or
otherwise, matured or unmatured, foreseeable or unforeseeable, by or against any person, arising on
account of (A) any Lease Document, including the performance, breach (including any Default or
Event of Default) or enforcement of any of the terms thereof, or (B) the Equipment, or any part or
other contents thereof, any substance at any time contained therein or emitted therefrom, including
any hazardous substances, or the premises at which the Equipment may be located from time to time,
or (C) the ordering, acquisition, delivery, installation or rejection of the Equipment, the
possession of any property to which it may be attached from time to time, maintenance, use,
condition, ownership or operation of any item of Equipment, and by whomsoever owned, used,
possessed or operated, during the term of any Schedule with respect to that item of Equipment, the
existence of latent and other defects (whether or not discoverable by Lessor or Lessee) any claim
in tort for negligence (other than from the actual, but not imputed, negligence or willful
misconduct of such Indemnitee) or strict liability, and any claim for patent, trademark or
copyright infringement, or the loss, damage, destruction, theft, removal, return, surrender, sale
or other disposition of the Equipment, or any item thereof, including, Claims involving or alleging
environmental damage, or any criminal or terrorist act, or for whatever other reason whatsoever. If
any Claim is made against Lessee or an Indemnitee, the party receiving notice of such Claim shall
promptly notify the other, but the failure of the party receiving notice to so notify the other
shall not relieve Lessee of any obligation hereunder.
(b) Tax Indemnity. (1) Lessee represents and warrants that: (A) it believes that it is
reasonable to estimate that the useful life of the Equipment exceeds the lease term (including any
interim and fixed rental renewal periods) by the greater of one (1) year or twenty (20) percent of
such estimated useful life, and that said Equipment will have a value at the end of the lease term,
including any fixed rate renewal period, of at least twenty (20) percent of the Total Invoice Cost
of the Equipment, without including in such value any increase or decrease for inflation or
deflation during the original lease term; and (B) the Equipment is, and will be used by Lessee so
as to remain, property eligible for the MACRS Deductions (as defined below).
(2) If (A) Lessor in computing its taxable income or liability for tax, shall lose, or shall
not have, or shall lose the right to claim or there shall be disallowed or recaptured for Federal
and/or state income tax purposes, in whole or in part, the benefit of MACRS Deductions; or (B)
Lessor shall become liable for additional tax as a result of Lessee having added an attachment or
made an alteration to the Equipment, including (without limitation) any such attachment or
alteration which would increase the productivity or capability of the Equipment so as to violate
the provisions of Rev. Proc. 2001-28, 2001-1 C.B. 1156 (as it may hereafter be modified or
superseded); or (C) the statutory full-year marginal Federal tax rate (including any surcharge) for
corporations is other than thirty-five (35) percent; hereinafter referred to as a “Loss”; then
Lessee shall pay Lessor the Tax Indemnification Payment as additional rent and Lessor shall revise
the Schedule(s) of Stipulated Loss Values to reflect the Loss. As used herein, “MACRS Deductions”
shall mean the deductions under Section 167 of the Internal Revenue Code of 1986, as now or
hereafter amended (the “Code”), determined in accordance with the modified Accelerated Cost
Recovery System with respect to the Total Invoice Cost of any item of the Equipment using the
accelerated method set forth in Section 168(b)(1) or 168(b)(2) of the Code as in effect on the date
of this Lease for property assigned to the class of property specified in the Schedule pertaining
thereto; “Lessor” shall be deemed to include the consolidated Federal taxpayer group of which
Lessor is a member; and “Tax Indemnification Payment” shall mean such amount as, after
consideration of (i) all taxes required to be paid by Lessor in respect of the receipt thereof
under the laws of any governmental or taxing authority in the United States, and (ii) the amount of
any interest or penalty which may be payable by Lessor in connection with the Loss, shall be
required to cause Lessor’s after-tax net return (the “Net Return”) to be equal to, but no greater
than, the Net Return computed consistently with current tax laws (and with the assumption that
Lessor is taxed at the highest marginal Federal and state tax rates) as of the date of this Lease
that would have been available to Lessor had the Loss not occurred.
(3) Lessor shall be responsible for, and shall not be entitled to a Tax Indemnification
Payment by Lessee on account of, any Loss arising solely as a direct result of the occurrence of
any one or more of the following events: (A) the failure of Lessor to timely and properly claim
MACRS Deductions in the tax return of Lessor other than as a result of changes in the
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Code or applicable regulations unless in the reasonable opinion of Lessor’s tax counsel there
is no basis for such claim; or (B) the failure of Lessor to have sufficient taxable income before
application of the MACRS Deductions to offset the full amount of such MACRS Deductions other than
as a result of changes in the Code or applicable regulations; or (C) any event which by the terms
of the Lease requires payment by Lessee of the Stipulated Loss Value if such payment is thereafter
actually made to Lessor, to the extent that such payment reimburses Lessor for amounts otherwise
payable by Lessee pursuant hereto; or (D) a disqualifying disposition due to sale of any item of
the Equipment or the Lease by Lessor prior to a Default.
(4) Lessor promptly shall notify Lessee in writing of such Loss and Lessee shall pay to Lessor
the Tax Indemnification Payment within thirty (30) days of such notice. For these purposes, a Loss
shall occur upon the earliest of: (A) the happening of any event (such as disposition or change in
use of any item of the Equipment) which will cause such Loss, (B) the payment by Lessor to the
Internal Revenue Service or state taxing authority of the tax increase (including an increase in
estimated taxes) resulting from such Loss; (C) the date on which the Loss is realized by Lessor; or
(D) the adjustment of the tax return of Lessor to reflect such Loss.
15. DEFAULT. A default shall be deemed to have occurred hereunder and under a Schedule upon
the occurrence of any of the following (each, an “Event of Default”): (a) non-payment of Basic Rent
on the applicable rent payment date, which non-payment continues for a period of three (3) days
after notice by Lessor to Lessee; (b) non-payment of any Other Payment within ten (10) days after
notice from Lessor to Lessee that such Other Payment is due; (c) failure to maintain, use or
operate the Equipment in compliance with applicable law; (d) breach by Lessee of its covenants
pursuant to Sections 4(e) hereof; (e) failure to obtain, maintain and comply with all of the
insurance coverages required under this Lease; (f) any transfer or encumbrance, or the existence of
any Lien, that is prohibited by this Lease; (g) a payment or other default by Lessee under any
loan, lease, guaranty or other financial obligation to Lessor or its affiliates which default
entitles the other party to such obligation to exercise remedies; (h) a payment or other default by
Lessee under any material (that is, for an amount in excess of $5,000,000) loan, lease, guaranty or
other material financial obligation to any third party which default has been declared; (i) an
inaccuracy in any representation or breach of warranty by Lessee (including any false or misleading
representation or warranty) in any financial statement or Lease Document, including any omission of
any substantial contingent or unliquidated liability or claim against Lessee; (j) the commencement
of any bankruptcy, insolvency, receivership or similar proceeding by or against Lessee or any of
its properties or business (unless, if involuntary, the proceeding is dismissed within sixty (60)
days of the filing thereof) or the rejection of this Lease or any other Lease Document in any such
proceeding; (k) the failure by Lessee generally to pay its debts as they become due or its
admission in writing of its inability to pay the same; (I) Lessee shall (1) enter into any
transaction of merger or consolidation, unless Lessee shall be the surviving entity or sell,
transfer or otherwise dispose of all or substantially all of its assets to a person (such actions
being referred to as an “Event”), unless the surviving entity or purchasing entity is organized and
existing under the laws of the United States or any state, and prior to such Event: (A) such person
executes and delivers to Lessor (x) an agreement satisfactory to Lessor (which shall not
unreasonably be withheld or delayed), in its sole discretion, containing such person’s effective
assumption, and its agreement to pay, perform, comply with and otherwise be liable for, in a due
and punctual manner, all of Lessee’s obligations having previously arisen, or then or thereafter
arising, under any and all of the Lease Documents, and (y) any and all other documents, agreements,
instruments, certificates (other than legal opinions) and filings reasonably requested by Lessor;
and (B) the creditworthiness of such person is equivalent to or better than the creditworthiness of
Lessee, and Lessor reasonably determines that such person conforms to the other standard criteria
then used by Lessor when approving transactions similar to the transactions contemplated in this
Lease; or (2) cease to do business as a going concern, liquidate, or dissolve; (m) effective
control of Lessee’s voting capital stock, issued and outstanding from time to time, is not retained
by the present holders (unless Lessee shall have provided thirty (30) days’ prior written notice to
Lessor of the proposed disposition and Lessor shall have consented thereto in writing (which
consent shall not unreasonably be withheld or delayed)); (n) there occurs a default or anticipatory
repudiation under the Guaranty;
or (o) breach by Lessee of any other covenant, condition or
agreement (other than those in items (a)-(n)) under this Lease or any of the other Lease Documents
that continues for thirty (30) days after Lessor’s written notice to Lessee (but such notice and
cure period will not be applicable unless such breach is curable by practical means within such
notice period). The occurrence of an Event of Default with respect to any Schedule shall, at the
sole discretion of Lessor, constitute an Event of Default with respect to any or all Schedules to
which it is then a party. Notwithstanding anything to the contrary set forth herein, Lessor may
exercise all rights and remedies hereunder independently with respect to each Schedule.
16. REMEDIES. (a) If an Event of Default occurs with respect to any Schedule, the Lessor
thereunder may (in its sole discretion) exercise any one or more of the following remedies with
respect to such Schedule and any or all other Schedules to which such Lessor is then a party: (1)
proceed at law or in equity, to enforce specifically Lessee’s performance or to recover damages;
(2) declare each such Schedule in default, and cancel each such Schedule or otherwise terminate
Lessee’s right to use the Equipment and Lessee’s other rights, but not its obligations, thereunder
and Lessee shall immediately assemble, make available and, if Lessor requests, return the Equipment
to Lessor in
8
accordance with the terms of this Lease; (3) enter any premises where any item of Equipment is
located without breach of the peace and in accordance with applicable law, and take immediate
possession of and remove (or disable in place) such item (and/or any unattached parts) by
self-help, summary proceedings or otherwise without liability except for negligence or willful
misconduct; (4) use Lessee’s premises for storage without liability except for negligence or
willful misconduct; (5) sell, re-lease or otherwise dispose of any or all of the Equipment, whether
or not in Lessor’s possession, at public or private sale, with five (5) days’ prior notice to
Lessee, and apply or retain the net proceeds of such disposition, with Lessee remaining liable for
any deficiency and with any excess being retained by Lessor; (6) enforce any or all of the
preceding remedies with respect to any related Collateral, and apply any deposit or other cash
collateral, or any proceeds of any such Collateral, at any time to reduce any amounts due to
Lessor; (7) demand and recover from Lessee all Liquidated Damages and all Other Payments whenever
the same shall be due; and (8) exercise any and all other remedies allowed by applicable law,
including the UCC. As used herein, “Liquidated Damages” shall mean the liquidated damages (all of
which, Lessee hereby acknowledges, are damages to be paid in lieu of future Basic Rent and are
reasonable in light of the anticipated harm arising by reason of an Event of Default, and are not a
penalty) described in the first sentence of parts (1) or (2) of Section 16(b), depending upon the
recovery and disposition of the Equipment leased under the applicable Schedule. Upon the occurrence
of the Event of Default described in Section 150) hereof, the remedy provided in Clause (7) above
shall be automatically exercised without the requirement of prior written notice to Lessee or of
any other act or declaration by Lessor, and the Liquidated Damages described therein shall be
immediately due and payable.
(b) (1) If an Event of Default occurs with respect to any Schedule, if Lessor recovers the
Equipment and disposes of it by a lease or elects not to dispose of the Equipment after recovery,
upon demand, Lessee shall pay to Lessor an amount equal to the sum of (A) any accrued and unpaid
Rent as of the date Lessor recovers possession of the Equipment, plus (B) the present value as of
such date of the total Basic Rent for the then remaining term of such Schedule, minus (C) either,
as applicable, (i) the present value, as of the commencement date of any substantially similar
re-lease of the Equipment, of the re-lease rent payable for that period, commencing on such date,
which is comparable to the then remaining term of such Schedule or (ii) the present value, as of
that certain date which may be determined by taking into account Lessor’s having a reasonable
opportunity to remarket the Equipment, of the “market rent” for such Equipment (as computed
pursuant to Article 2A) in the continental United States on that date, computed for that period,
commencing on such date, which is comparable to the then remaining term of such Schedule; provided,
however, Lessee acknowledges that if Lessor is unable after reasonable effort to dispose of the
Equipment at a reasonable price and pursuant to other reasonable terms, or the circumstances
reasonably indicate that such an effort will be unavailing, the “market rent” in such event will be
deemed to be $0.00, but in the event that Lessor does eventually re-lease or otherwise dispose of
the Equipment, it will apply the net proceeds of such disposition, to the extent received in good
and indefeasible funds, as a credit or reimbursement, as applicable, in a manner consistent with
the applicable provisions of Article 2A. Any amounts discounted to present value, shall be
discounted at the rate of three percent (3%) per annum, compounded annually.
(2) If an Event of Default occurs with respect to any Schedule, if Lessee fails to surrender
the Equipment in the manner and condition required by this Lease, or Lessor recovers and sells the
Equipment, upon demand, Lessee shall pay to Lessor an amount calculated as the Stipulated Loss
Value of the Equipment (determined as of the next rent payment date after the date of the
occurrence of the subject Event of Default), together with all other Rent due with respect to the
related Schedule as of such determination date, and all Enforcement Costs (defined in Section
16(c)), less a credit for any disposition proceeds, if applicable pursuant to the application
provisions in the next sentence. If Lessor demands the Liquidated Damages under this part (2), and
recovers and sells the Equipment, any proceeds received in good and indefeasible funds shall be
applied by Lessor, with respect to the related Schedule: first, to pay all Enforcement Costs, to
the extent not previously paid; second, to pay to Lessor an amount equal to any unpaid Rent due and
payable, together with the Liquidated Damage amounts specified in this part (2), to the extent not
previously paid; third, to pay to Lessor any interest accruing on the amounts covered by the
preceding clauses, at the Default Rate, from and after the date the same becomes due, through the
date of payment; and fourth. (A) if the Lessor under such Schedule is also the Lessor under any
other Schedules (whether by retaining the same, or as Assignee), to satisfy any remaining
obligations under any or all such other Schedules, or (B) if such Lessor is not the Lessor under
any other Schedule, or if Lessee’s obligations to such Lessor under such other Schedules have been
fully and indefeasibly satisfied, to reimburse Lessee for such amounts to the extent paid by Lessee
as Liquidated Damages pursuant to this part (2).
(c) A cancellation of any Schedule shall occur only upon written notice by Lessor to Lessee.
Unless already specifically provided for in Section 16(b), if an Event of Default occurs with
respect to any Schedule, Lessee shall also be liable for all of the following (“Enforcement
Costs”): (1) all unpaid Rent due before, during or after exercise of any of the foregoing remedies,
and (2) all reasonable legal fees (including consultation, drafting notices or other documents,
expert witness fees, sending notices or instituting, prosecuting or defending litigation or
arbitration) and other reasonable enforcement costs and expenses incurred by reason of any Default
or Event of Default or the exercise of Lessor’s rights
9
or remedies, including all expenses incurred in connection with the return or other recovery
of any Equipment in accordance with the terms of this Lease or in placing such Equipment in the
condition required hereby, or the sale, release or other disposition (including but not limited to
costs of transportation, possession, storage, insurance, taxes, hen removal, repair, refurbishing,
advertising and brokers’ fees), and sales or use taxes incurred by Lessor in connection with any
disposition of the Equipment after the occurrence of an Event of Default, and all other
pre-judgment and post-judgment enforcement related actions taken by Lessor or any actions taken by
Lessor in any bankruptcy case involving Lessee or the Equipment From and after the date on which an
Event of Default occurs, Lessee shall pay interest to Lessor with respect to all amounts due
hereunder until such amounts are received by Lessor in good funds at a per annum interest rate that
is the lesser of ten (10) percent or the maximum rate permitted by applicable law (the “Default
Rate”) No right or remedy is exclusive and each may be used successively and cumulatively Any
failure to exercise the rights granted hereunder upon any Default or Event of Default shall not
constitute a waiver of any such right No extension of time for payment or performance of any of
Lessees obligations hereunder shall operate to release, discharge, modify, change or affect the
original liability of Lessee for such obligations, either in whole or in part In any action to
repossess any Equipment or other Collateral, Lessee waives any bonds and any surety or security
required by any applicable laws as an incident to such repossession Notices of Lessor’s intention
to accelerate acceleration, nonpayment, presentment, protest, dishonor or any other notice
whatsoever (other than as expressly set forth herein) are waived by Lessee Any notice given by
Lessor of any disposition of the Equipment or any Collateral or other intended action of Lessor
which is given in accordance with this Lease at least five (5) business days prior to such action
shall constitute fair and reasonable notice of such action The execution of a Schedule shall not
constitute a waiver by Lessor of any pre-existing Default or Event of Default With respect to any
disposition of any Equipment or Collateral pursuant to this Section, (i) Lessor shall have no
obligation, subject to the requirements of commercial reasonableness, to clean-up or otherwise
prepare the same for disposition, (11) Lessor may comply with any applicable law in connection with
any such disposition, and any actions taken in connection therewith shall not be deemed to have
adversely affected the commercial reasonableness of any disposition thereof, (m) Lessor may
disclaim any title or other warranties in connection with any such disposition, and (iv) Lessee
shall remain responsible for any deficiency remaining after Lessor’s exercise of its remedies and
application of any funds or credits against Lessee’s obligations under any Schedule, and Lessor
shall retain any excess after such application
17. ASSIGNMENT (a) LESSEE SHALL NOT ASSIGN, DELEGATE, TRANSFER OR ENCUMBER ANY OF ITS RIGHTS OR
OBLIGATIONS HEREUNDER OR UNDER ANY SCHEDULE, OR ITS LEASEHOLD INTEREST OR ANY COLLATERAL, SUBLET
THE EQUIPMENT OR OTHERWISE PERMIT THE EQUIPMENT TO BE OPERATED OR USED BY, OR TO COME INTO OR
REMAIN IN THE POSSESSION OF, ANYONE BUT LESSEE Notwithstanding the foregoing, Lessee may sublease
or otherwise permit the Equipment to be operated or used by an affiliate of Lessee provided that
such sublease or right of possession is pursuant to a written agreement which is expressly subject
and subordinate to this Lease and the rights of Lessor hereunder, which shall not permit any
further subleasing or other disposition of the Equipment, shall not be for a term longer than the
then remaining term of this Lease, and shall not contain provisions that are inconsistent with the
provisions of this Lease Without limiting the foregoing, (1) Lessee may not attempt to dispose of
any of the Equipment, and (2) Lessee shall (A) maintain the Equipment free from all Liens, other
than Permitted Liens, (B) notify Lessor immediately upon receipt of notice of any Lien affecting
the Equipment, and (C) defend Lessor’s title to the Equipment A “Permitted Lien” shall mean any
Lien for Impositions, Liens of mechanics materialmen, or suppliers and similar Liens arising by
operation of law, provided that any such Lien is incurred by Lessee in the ordinary course of
business, for sums that are not yet delinquent or are being contested in good faith and with due
diligence, by negotiations or by appropriate proceedings which suspend the collection thereof and
in Lessor’s reasonable discretion (i) do not involve any substantial danger of the sale, forfeiture
or loss of the Equipment or any interest therein and (n) for the payment of which adequate
assurances or security have been provided to Lessor No subleasing, permitted use or disposition
referred to in this Section shall relieve Lessee of its obligations, and Lessee shall remain
primarily liable under each Schedule and all of the other Lease Documents (b) Lessor may at any
time with or without notice to Lessee grant a security interest in, sell, assign, delegate or
otherwise transfer (an “Assignment’) all or any part of its interest in the Equipment, this Lease
or any Schedule and any related Lease Documents or any Rent thereunder, or the right to enter into
any Schedule, and Lessee (after receipt of written notice of the applicable Assignment) shall
perform all of its obligations thereunder, to the extent so transferred, for the benefit of the
beneficiary of such Assignment (such beneficiary including any successors and assigns, an
“Assignee”) Lessee agrees not to assert against any Assignee any Abatement (without limiting the
provisions of Section 2) or Claim that Lessee may have against Lessor, and Assignee shall not be
bound by, or otherwise required to perform any of Lessor’s obligations, unless expressly assumed by
such Assignee Lessor shall be relieved of any such assumed obligations If so directed in writing,
Lessee shall pay all Rent and all other sums that become due under the assigned Schedule and other
Lease Documents directly to the Assignee or any other party designated in writing by Lessor or such
Assignee Lessee acknowledges that Lessor’s right to enter into an Assignment is essential to Lessor
and accordingly, waives any restrictions under applicable law with respect to an Assignment and any
related remedies Upon the request of Lessor or any Assignee Lessee also agrees (i) to promptly
execute and deliver to Lessor or to such Assignee an acknowledgment of the Assignment in form and
substance satisfactory to the requesting
10
party, an insurance certificate and such other documents and assurances reasonably requested
by Lessor or Assignee to confirm Lessee’s acknowledgment of the Assignment, and (n) to comply with
all other reasonable requirements of any such Assignee in connection with any such Assignment to
confirm Lessee’s acknowledgment of the Assignment, provided that Lessee shall not be required to
provide a legal opinion in connection with any such Assignment or to change the terms and
conditions of the Lease Documents Upon such Assignment and except as may otherwise be provided
herein, all references in this Lease to “Lessor” shall include such Assignee (c) Subject always to
the foregoing this Lease and each Schedule shall mure to the benefit of, and are binding upon,
Lessee’s and Lessor’s respective successors and assigns
18. MISCELLANEOUS (a) This Lease, each Schedule, any Riders hereto or thereto and any
commitment letter between the parties, constitute the entire agreement between the parties with
respect to the subject matter hereof and thereof and shall not be amended or modified in any manner
except by a document in writing executed by both parties (b) Any provision of this Lease that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction (c) The representations warranties
and agreements of Lessee herein shall be deemed to be continuing and to survive the execution and
delivery of this Lease each Schedule and any other Lease Documents With respect to each Schedule,
the obligations of Lessee under Sections 8, 9, 10, 12, 13 and 14 hereof, together with any of
Lessee’s obligations under the other provisions of this Lease (as incorporated therein) which have
accrued but not been fully satisfied, performed or complied with prior to the expiration or earlier
cancellation or termination of such Schedule shall survive the expiration or earlier cancellation
or termination thereof (d) All of Lessee’s obligations hereunder and under any Schedule shall be
performed at Lessee’s sole expense Lessee shall reimburse Lessor promptly upon demand for all
expenses incurred by Lessor in connection with (1) any action taken by Lessor at Lessee’s request,
or in connection with any option, (2) the filing or recording of real property waivers and UCCs,
(3) any Enforcement Costs not recovered pursuant to Section 16, (4) all inspections, and (5) all
hen search reports (and copies of filings) requested by Lessor If Lessee fails to perform any of
its obligations with respect to a Schedule, Lessor shall have the right, but shall not be
obligated, to effect such performance, and Lessee shall reimburse Lessor, upon demand, for all
expenses incurred by Lessor in connection with such performance Lessor’s effecting such compliance
shall not be a waiver of Lessee’s default (e) Lessee irrevocably appoints Lessor as Lessee’s
attorney-in-fact (which power shall be deemed coupled with an interest) to (1) make minor
corrections to manifest errors in factual data in any Schedule and/or any addenda attachments,
exhibits and/or riders to this Lease or any Schedule, and (2) execute, endorse and deliver any
documents and checks or drafts relating to or received in payment for any loss or damage under the
policies of insurance required by this Lease, but only to the extent that the same relates to the
Equipment or are required by titling agencies in order to reflect Lessor as the owner and/or
lienholder with respect to certificates of title pertaining to motor vehicles (if any) comprising
the Equipment (f) LESSOR AND LESSEE HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH
LESSEE AND/OR LESSOR MAY BE PARTIES ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS LEASE (g) All
notices (excluding xxxxxxxx and communications in the ordinary course of business) hereunder shall
be in writing, personally delivered, delivered by overnight courier service, sent by facsimile
transmission (with confirmation of receipt) or sent by certified mail return receipt requested,
addressed to the other party at its respective address stated below the signature of such party or
at such other address as such party shall from time to time designate in writing to the other
party, and shall be effective from the date of receipt (h) This Lease shall not be effective unless
and until accepted by execution by an officer of Lessor THIS LEASE AND ALL OF THE OTHER LEASE
DOCUMENTS, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE (OTHER THAN SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW)), INCLUDING ALL MATTERS OF CONSTRUCTION VALIDITY AND PERFORMANCE,
REGARDLESS OF THE LOCATION OF THE EQUIPMENT The parties agree that any action or proceeding arising
out of or relating to this Lease may be commenced in any state or Federal court in the State of New
York, and agree that a summons and complaint commencing an action or proceeding in any such court
shall be properly served and shall confer personal jurisdiction if served personally or by
certified mail to it at the mailing address below Lessee s signature, or as it may provide in
writing from time to time, or as otherwise provided under the laws of the State of New York (i)
This Lease and all of the other Lease Documents may be executed in counterparts Photocopies or
facsimile transmissions of signatures shall be deemed original signatures and shall be fully
binding on the parties to the same extent as original signatures The transfer or possession of the
“Original” of this Lease shall be irrelevant to the full or collateral assignment of, or grant of
security interest in, any Schedule, provided however, no security interest in any Schedule may be
created through the transfer, possession or control, as applicable of any counterpart of such
Schedule other than the original thereof, which shall be identified as the document or record (as
applicable) marked “Original” and all other counterparts shall be marked “Duplicate” (j) If Lessor
is required by the terms hereof to pay to or for the benefit of Lessee any amount received as a
refund of an Imposition or as insurance proceeds, Lessor shall not be required to pay such amount
if any Default has occurred and not been cured or any Event of Default shall have occurred and not
been waived by Lessor In addition, if Lessor is required by the terms hereof to cooperate with
Lessee in connection with
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certain matters, such cooperation shall not be required if a Default or Event of Default has
then occurred and is continuing, (k) To the extent Lessor is required to give its consent or
approval with respect to any matter, the reasonableness of Lessor’s withholding of such consent
shall be determined based on the then existing circumstances; provided, that Lessor’s withholding
of its consent shall be deemed reasonable for all purposes if (i) the taking of the action that is
the subject of such request, might reasonably (A) result in an impairment of Lessor’s rights, title
or interests hereunder or under any Schedule or other Lease Document, or to the Equipment, or (B)
expose Lessor to any Claims or Impositions, or (ii) Lessee fails to provide promptly to Lessor any
filings, certificates, or indemnities reasonably required by Lessor as a condition to such consent.
(I) There is no restriction (either express or implied) on any disclosure or dissemination of the
tax treatment or tax structure of the transactions contemplated by this Lease or any documents
executed in connection herewith. Further, each party hereto acknowledges that it has no proprietary
rights to any tax matter or tax idea or to any element of the transaction structure contemplated by
this Lease; and each party hereto (and any employee, representative or agent of any party hereto)
may disclose to any and all persons (without limitation of any kind), the Federal tax treatment and
Federal tax structure of the transaction contemplated by this Lease. This Section 18(1) is intended
to cause the transaction contemplated by this Lease to be treated as not having been offered under
conditions of confidentiality for purposes of Section 1.6011-4(b)(3) (or any successor provision)
of the Treasury Regulations promulgated under Section 6011 of the Code and Section 6111 of the Code
and the Treasury Regulations promulgated thereunder; and shall be construed in a manner consistent
with such purpose.
19. DEFINITIONS AND RULES OF CONSTRUCTION. (a) The following terms when used in this Lease or
in any of the Schedules have the following meanings: (1) “affiliate”: with respect to any given
person, shall mean (i) each person that directly or indirectly owns or controls, whether
beneficially or as a trustee, guardian or other fiduciary, five (5) percent or more of the voting
stock, membership interest or similar equity interest having ordinary voting power in the election
of directors or managers of such person, (ii) each person that controls, is controlled by, or is
under common control with, such person, or (iii) each of such person’s officers, directors,
members, joint venturers and partners. For the purposes of this definition, “control” of a person
means the possession, directly or indirectly, of the power to direct or cause the direction of its
management or policies, whether through the ownership of voting securities, by contract or
otherwise; (2) “applicable law” or “law”: any law, rule, regulation, ordinance, order, code, common
law, interpretation, judgment, directive, decree, treaty, injunction, writ, determination, award,
permit or similar norm or decision of any governmental authority; (3) “AS IS, WHERE IS”: AS IS,
WHERE IS, without warranty, express or implied, with respect to any matter whatsoever; (4)
“business day”: any day, other than a Saturday, Sunday, or legal holiday for commercial banks under
the laws of the state of the Lessor’s notice address; (5) “governmental authority”: any federal,
state, county, municipal, regional or other governmental authority, agency, board, body,
instrumentality or court, in each case, whether domestic or foreign; (6) “person”: any individual,
corporation, limited liability entity, partnership, joint venture, or other legal entity or a
governmental authority, whether employed, hired, affiliated, owned, contracted with, or otherwise
related or unrelated to Lessee or Lessor; and (7) “UCC” or “Uniform Commercial Code”: the Uniform
Commercial Code as in effect in the State or in any other applicable jurisdiction; and any
reference to an article (including Article 2A) or section thereof shall mean the corresponding
article or section (however termed) of any such applicable version of the Uniform Commercial Code,
(b) The following terms when used herein or in any of the Schedules shall be construed as follows:
(1) “herein,” “hereof,” “hereunder,” etc.: in, of, under, etc. this Lease or such other Lease
Document in which such term appears (and not merely in, of, under, etc. the section or provision
where the reference occurs); (2) “including”: means including without limitation unless such term
is followed by the words “and limited to,” or similar words; and (3) “or”: at least one, but not
necessarily only one, of the alternatives enumerated. Any defined term used in the singular
preceded by “any” indicates any number of the members of the relevant class. Any Lease Document or
other agreement or instrument referred to herein means such agreement or instrument as supplemented
and amended from time to time. Any reference to Lessor or Lessee shall include their permitted
successors and assigns. Any reference to an applicable law shall also mean such law as amended,
superseded or replaced from time to time.
20. RIDER. Rider No. 1 attached hereto is incorporated in this Lease.
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IN WITNESS WHEREOF, the parties hereto have caused this Master Operating Lease Agreement to be
duly executed, under seal, as of the day and year first above set forth.
| AIG COMMERCIAL EQUIPMENT FINANCE, INC. | C&J SPEC-RENT SERVICES, INC. | |||||||||
| Lessor | Lessee | |||||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | [SEAL] | By: | /s/ Xxxxx XxXxxxxx | [SEAL] | |||||
Name:
|
Xxxxxxx X. Xxxxxxxx | Name: | Xxxxx XxXxxxxx | |||||||
Title:
|
Investment Manager | Title: | VP Finance | |||||||
| 0000 Xxxxxxx Xxxx Xxxxx | 000 X. Xxxxxxxxx | |||||||||
| Xxxxx 000 | Xxxxx 000 | |||||||||
| Xxxxx, Xxxxx 00000 | Xxxxxx Xxxxxxx, Xxxxx 00000 | |||||||||
| Facsimile: (000) 000-0000 | Facsimile: 000-000-0000 | |||||||||
| Form of Organization: Corporation | ||||||||||
| Jurisdiction of Organization: Indiana | ||||||||||
| Organizational No.: 2005071200306 | ||||||||||
| Federal Employer Identification No. 00-0000000 | ||||||||||
| C&J ENERGY SERVICES, INC. | ||||||||||
| Lessee | ||||||||||
| By: | /s/ Xxxxx XxXxxxxx | [SEAL] | ||||||||
| Name: | Xxxxx XxXxxxxx | |||||||||
| Title: | VP Finance | |||||||||
| 000 X. Xxxxxxxxx | ||||||||||
| Xxxxx 000 | ||||||||||
| Xxxxxx Xxxxxxx, Xxxxx 00000 | ||||||||||
| Facsimile: 000-000-0000 | ||||||||||
| Form of Organization: Corporation | ||||||||||
| Jurisdiction of Organization: Texas | ||||||||||
| Organizational No.: 0800716424 | ||||||||||
| Federal Employer Identification No. 00-0000000 | ||||||||||
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