EXHIBIT 10.11
LEASE AGREEMENT
This Lease Agreement and Service Contract (hereinafter "Agreement"), dated
____________ , between DLR Leasing, Inc., a corporation organized in Nevada and
existing under the laws of the State of Colorado having offices at 0000 Xxxx
Xxx, Xxxxx 0, Xxxxxxx, XX 00000 (hereinafter "Lessor") and ___________________,
a [CORPORATION/PARTNERSHIP/LIMITED LIABILITY COMPANY] organized and existing
under the laws of the State of ________________________ having offices at
______________________ (hereinafter "Lessee").
The parties recite and declare that:
A. Lessor is the owner of certain items of personal property and is willing
to rent those items to Lessee; and,
B. Lessee desires to rent those items of personal property from Lessor on
the terms and conditions set forth in this Agreement.
IN CONSIDERATION of the above recitals, the terms and covenants of this
Agreement and other good and valuable consideration, including the payment of
money from Lessee to Lessor, the receipt and sufficiency of said consideration
is hereby acknowledged, and intending to be bound hereby, the Parties agree as
follows:
1. LEASE OF EQUIPMENT. Lessor agrees to lease to the Lessee and Lessee agrees to
lease from Lessor, on the terms and conditions of this Agreement, the items of
personal property (hereinafter "Equipment" described in attached Exhibit "A".
2. OWNERSHIP OF EQUIPMENT. All the Equipment leased to Lessee and all
accessions, attachments, accessories and modifications placed on or made to the
Equipment by Lessor or Lessee, as well as all repairs to the Equipment, are
Lessor's property.
2.1 INDICIA OF LESSOR'S OWNERSHIP. Lessor may stencil or otherwise
affix Lessor's name on all or any part of the Equipment together with
language stating that the Equipment is owned by Lessor and leased to
Lessee.
2.2 TITLE TO EQUIPMENT UNENCUMBERED. Lessor warrants that Lessor is
the sole owner of the Equipment listed in Schedule A and that at the time
of delivery to Lessee and during the term of this Lease and any extensions
of the term the Equipment will be free of all liens and encumbrances except
as permitted by Paragraph 7. Lessor also warrants that during the term of
this Lease and any extension of the term Lessor will not sell, lease,
assign, or dispose of the Equipment except as permitted by Paragraph 7 and
will do nothing to interfere with Lessee's use and enjoyment of the
Equipment.
2.3 DELIVERY OF EQUIPMENT. All the Equipment listed on Schedule A
shall be delivered to Lessee on or before __________[DATE] at
__________________ [ADDRESS]. Lessor shall not be liable for any losses
Lessee may suffer by reason of late delivery. However, Lessee's obligation
to pay rent for any piece of Equipment shall not start until Lessee
receives delivery of that Equipment. Further, if any piece of Equipment is
not received by [DATE], Lessee, at Lessee's option, may cancel this Lease
insofar as it relates to that piece of Equipment.
2.4 REPAIRS TO AND MAINTENANCE OF EQUIPMENT. During the term of this
Lease and any extension of the term, Lessee will maintain the Equipment and
keep it in good repair at Lessee's sole expense, normal wear and tear and
depreciation excepted.
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3. TERM OF AGREEMENT. The term of this Agreement shall commence as of
_____________, (hereinafter "Commencement Date") and shall continue in full
force and effect until ______________________ , (hereinafter "Initial Term"),
unless sooner terminated as provided in this Agreement. Thereafter, this
Agreement shall automatically be renewed from year-to-year for for up to two (2)
successive one-year terms (hereinafter "Renewal Terms"), upon the same terms and
conditions set forth herein except that the Rent, as defined below, shall be
adjusted to reflect Lessor's then current Rent schedule, unless sooner
terminated as provided in this Agreement.
4. PAYMENT FOR EQUIPMENT AND SERVICES. During the Initial Term of this
Agreement, for the use of and enjoyment of the Equipment, the Lessee shall pay
the Lessor a monthly fee (herein "Rent") equal to $______________ . Such Rent
shall be paid, in advance, on the first (1st) day of each calendar month
beginning on the first (1st) day of the month following the Commencement Date,
except that the first payment shall be due on the Commencement Date and shall
cover the period from the Commencement Date through the first day of the
following calendar month. In addition to the above Rent there will be a contract
processing fee equal to $_____________ and a security deposit for the Equipment
equal to $____________________. So long as Lessee performs its obligation under
this Agreement, the security deposit shall be returned to Lessee at the
termination of this Agreement.
5. LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Lessee represents,
warrants and covenants:
5.1 That Lessee has full authority and legal right to execute, deliver and
perform this Agreement and that such action has been duly authorized by Lessee,
will not contravene any applicable law, regulation or judgment, or the
certificate of incorporation, by-laws or partnership agreement of Lessee and
will not contravene or constitute a default under any agreement to which Lessee
is a party or by which Lessee or its assets may be bound or affected;
5.2 That the Equipment is being leased and will be used only for business
or commercial purposes and will not be used for personal, family or household
purposes;
5.3 That Lessee's name and place of business are as indicated above and
Lessee will notify Lessor in writing of any change in its name or address within
five (5) days of such change;
5.4 That Lessee at all times will cause the Equipment to be operated in
accordance with the manufacturer's and Lessor's instructions and manuals, by
competent personnel and in compliance with all governmental requirements;
5.5 That Lessee will pay and indemnify Lessor for, and hold Lessor harmless
from and against, all taxes, levies, withholdings, Rents and other governmental
charges of any nature, together with any penalties or interest thereon, with
respect to this Agreement and/or arising out of the transactions contemplated by
this Agreement and imposed against Lessor, Lessee, or the Equipment by any
taxing authority upon the Equipment or the leasing, possession, use, operation,
sale, return or other disposition thereof, or upon or with respect to the
Rentals, receipts or earnings arising from the Equipment, (excluding, however,
taxes on the net income of Lessor);
5.6 That Lessee will not permit the Equipment to become attached or affixed
to real property or otherwise to become a fixture, and even if the Equipment
shall become attached or affixed to real property in violation of this
Agreement, the parties hereto intend that the Equipment shall at all times be
deemed to be personal property;
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5.7 That Lessee will not transfer, assign or otherwise dispose of this
Agreement or any interest created hereunder, or transfer, sublet or otherwise
dispose of the Equipment or any interest therein, or permit the Equipment to be
used by anyone other than Lessee or make any material change or modification in
the Equipment, or make any addition thereto;
5.8 That all accessions, accessories, parts or replacements which become
attached to, or a part of, the Equipment, become the property of Lessor;
5.9 That, if requested by Lessor, Lessee shall, at Lessor's expense, attach
to and maintain on the Equipment a conspicuous plate or marking stating:
"Property of DLR Funding, Inc."
5.10 That Lessee will execute and deliver such other statements and
documents required by any taxing authority or requested by Lessor to protect
Lessor's rights in the Equipment or in connection with this Agreement or any
related document.
6. LESSOR'S DISCLAIMER. LESSOR NEITHER MAKES NOR SHALL BE DEEMED TO HAVE MADE
ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, CONCERNING THE EQUIPMENT,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION AS TO DESIGN,
QUALITY OR CONDITION OF THE EQUIPMENT, OR AS TO THE MERCHANTABILITY OR FITNESS
OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE OR TO ANY OTHER MATTER RELATING TO
THE EQUIPMENT. SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATIONS OR EXCLUSION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR EXCLUSION OF IMPLIED
WARRANTIES SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
7. NO SETOFF ALLOWED BY LESSEE; ASSIGNMENT OF LESSOR'S INTEREST TO LENDER;
DEFENSES AGAINST LESSOR'S ASSIGNEE
7.1 NO SETOFF. Except as otherwise provided in this Agreement, Lessee's
obligation to pay all Rent and other amounts payable under this Agreement is
absolute and unconditional under any and all circumstances, and shall not be
subject to any setoff, or reduction for any reason whatsoever.
7.2 ASSIGNMENT OF RIGHTS BY LESSOR TO LENDING INSTITUTION. Lessor, for the
purpose of securing funds to purchase all or any part of the Equipment listed on
Exhibit "A", may assign all of Lessor's right, title, and interest in and to all
or any part of the Equipment to one or more financial institutions that are
providing funding to Lessor (hereinafter "Lender"). Lessor may also assign to
the Lender all right to all or any part of the monies due or to become due under
this Lease. If any such assignment is made, Lessee will pay all sums assigned
directly to the Lender upon receiving notice of the assignment.
7.3 DEFENSES, SETOFFS, CLAIMS AGAINST LESSOR'S ASSIGNEE. In the event
Lessor assigns all or any part of the monies due under this Lease to Lender,
Lender's right to receive those sums shall not be subject to any defense,
setoff, or counterclaim that Lessee may have against Lessor but shall be subject
to any defense Lessor or Lessee has against Lender.
8. RISK OF LOSS; INSURANCE. Risk of loss of, damage to, or destruction of any
item of Equipment shall at all times be on Lessee and no such loss, damage or
destruction will release Lessee from Lessee's obligation hereunder.
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8.1 LESSEE'S INSURANCE. Lessee shall obtain and maintain at all times on
the Equipment, at Lessee's expense, physical damage and liability (including
bodily injury and property) insurance in such amounts, against such risks, in
such form, and with such insurers as shall be satisfactory to Lessor. Each
physical damage insurance policy will name Lessor as loss payee as its interest
may appear and each liability insurance policy will name Lessor as an additional
insured. Lessee will promptly deliver to Lessor evidence acceptable to Lessor
that all policies referred to herein have been obtained and thereafter renewed
throughout the term of the Agreement; Lessor, however, shall be under no duty to
ascertain the existence or adequacy of such insurance. Applicable insurance
proceeds received by Lessor may, at Lessor's option, be applied towards repair
or replacement of the Equipment or towards payment of Lessee's unpaid
obligations under this Agreement. Lessee's failure to obtain or maintain
insurance shall constitute a default under this Lease, and, in such event,
Lessor or Lender, as Lessor's assignee, may obtain the insurance, and the cost
of the insurance so obtained shall be additional rent, due and payable by Lessee
on demand.
8.2 DAMAGE TO EQUIPMENT. Lessee's obligation to pay rent will continue even
though all or part of the Equipment is damaged. Lessee, pursuant to Paragraph
12, shall repair or have the Equipment repaired. If the damage to the Equipment
is covered by insurance carried by Lessee or Lessor pursuant to Paragraph 13 or
if Lessor has any right to reimbursement for such damage by third parties,
Lessor will assign Lessor's right to the proceeds of the policies or Lessor's
rights against the third parties to reimburse Lessee for the cost of making the
repairs.
8.3 LOSS OF EQUIPMENT. If the Equipment or any part of it is stolen,
destroyed, or damaged beyond repair, Lessee will promptly pay the unpaid rental
on such Equipment for the balance of the term of this Lease, exclusive of any
extensions unless the term has been extended in accordance with Paragraph 4.
Upon receipt of this payment by Lessor, Lessor will assign to Lessee Lessor's
rights to the proceeds of any policies of insurance for such loss or Lessor's
rights for reimbursement from third parties for such loss, up to the amount of
the unpaid rental remitted by Lessee. Lessor shall also assign to Lessee all of
Lessor's right, title, and interest in and to such Equipment. Insurance proceeds
or reimbursements from third parties in excess of the amounts assigned to Lessee
shall belong to Lessor.
8.4 LESSOR'S INSURANCE. Notwithstanding the foregoing, Lessor shall
maintain physical damage insurance in such amounts as Lessor shall deem
adequate, naming Lessee as loss payee for all damage or destruction resulting
solely from defective Equipment.
9. DEFAULT; REMEDIES.
9.1 It is agreed that time for the payment of the above Rent and any other
charges and all other references as to time or duties in this Lease are of the
essence of this Agreement. The occurrence of any of the following shall
constitute a default hereunder:
9.1.1 Lessee or any guarantor hereof (hereinafter "Guarantor") fails
to pay when due any obligation under this Agreement or under any guaranty or
other related document, or otherwise breaches any provision contained herein or
therein, and such failure or breach continues for ten (10) days;
9.1.2 Any warranty, representation or covenant of Lessee or of any
Guarantor contained herein, or in any guaranty, certificate, financial statement
or other related document, whether made or furnished to Lessor by or on behalf
of Lessee, proves to be false or incorrect at any time;
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9.1.3 Lessee or any Guarantor becomes insolvent, ceases to do business
as a going concern, or becomes unable to pay its debts generally as they become
due; or a petition for an order for relief under the bankruptcy laws or
insolvency laws or for reorganization, composition, adjustment or other relief
of debtors under any law is filed by or against Lessee or any Guarantor; or
Lessee or any Guarantor makes an assignment for the benefit of creditors or a
receiver or liquidator is appointed for Lessee or any Guarantor; or any court of
competent jurisdiction orders the winding up or liquidation of the affairs of
Lessee or any Guarantor;
9.1.4 The Equipment is lost, stolen, damaged beyond repair, destroyed,
encumbered, levied upon, confiscated, condemned, seized or attached;
9.1.5 Lessee or any Guarantor dies (if an individual) or is dissolved
(if a partnership or corporation);
9.1.6 Whenever Lessor in good faith believes the prospect for payment
or performance under this Lease or under any other agreement with Lessor is
impaired or in good faith believes the Equipment hereunder or under any other
agreement with Lessee is insecure.
9.2 Lessor may in addition to any other remedies provide hereunder, collect
a "late charge" not to exceed an amount equal to twenty-five percent (25%) of
any installment which is not paid within ten (10) days after the due date
thereof.
9.3 Upon the occurrence of any default, Lessor may declare to be
immediately due and payable to Lessor all Rents due and to become due under this
Agreement plus all other amounts (including late charges) due hereunder and
under all related documents, less any customary refund to Lessor in respect of
unearned finance charges, all without presentment, demand, protest, notice of
intent to accelerate, notice of acceleration or other notice of any kind, all of
which are hereby expressly waived by Lessee. Upon the occurrence of any default:
(i) Lessor shall have all rights and remedies of a secured party under the
Uniform Commercial Code (UCC) as from time to time in effect in any applicable
jurisdiction and under any applicable laws; (ii) Lessor may enter upon the
premises where the Equipment is located and take immediate possession of and
remove the Equipment by summary proceedings or otherwise, all without liability
to Lessee, whether for the restoration of damage to any property caused by such
taking or otherwise, for or by reason of such entry or taking of possession or
otherwise; and (iii) Lessor may require Lessee, at Lessee's expense, to assemble
the Equipment and to return it fully insured against all risks to a place
designated by Lessor. Lessee shall pay all expenses incurred in exercising
Lessor's remedies hereunder, including, without limitation, costs of collection
and repossession, reasonable attorneys' fees, and advances made by Lessor to
protect its rights in the Equipment. Lessor's acceptance of payment or
performance after such is due shall not constitute waiver of any default or of
any other provision hereof, and waiver of any default shall not constitute
waiver of any other default. Lessor's remedies are cumulative, not alternative.
No exercise or partial exercise of any remedy shall preclude exercise of any
other remedy or of the remainder of any such partially exercised remedy.
10. NOTICES. All notices required to be given to any party other than Lessor
shall be deemed given upon the first to occur of (i) deposit thereof in a
receptacle under the control of the United States Postal Service, (ii)
transmittal by electronic means to a receiver under the control of such party,
or (iii) actual receipt by such party or an employee or agent of such party. All
notices to Lessor shall be deemed given upon actual receipt by a responsible
officer of Lessor.
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10.1 For the purposes hereof, notices hereunder shall be sent to the
following addresses, or to such other addresses as each such party may in
writing hereafter indicate:
LESSEE
Address: _____________________
Officer: _____________________
Fax Number: _____________________
Officer: _____________________
Phone Number: _____________________
Fax Number: _____________________
LESSOR
Address: DLR Leasing, Inc.
0000 Xxxx Xxx, Xxxxx 0
Xxxxxxx, XX 00000
Officer: Xxxxxxxx X. Xxxxxxxx
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
11. ENFORCEABILITY. Any provision of this Agreement or any related document
which 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 or
thereof.
12. TERMINATION. This Agreement shall not terminate until all Rent and all other
obligations due hereunder and under any related document, including late
charges, have been paid and all other performance by Lessee hereunder and
thereunder has been completed. This Agreement may not be cancelled or terminated
except as provided herein.
13. INDEMNITY.
13.1 LESSOR'S INDEMNITY; LIMITATION ON AMOUNT OF INDEMNITY; DISCLAIMER OF
DAMAGES. Lessor agrees to indemnify and hold Lessee harmless from and against
losses, damages, injuries, liabilities, claims and expenses (hereinafter
"Damages") caused by the gross negligence or willful misconduct of Lessor, its
employees or their agents. In no event shall the total amount of the above
Damages exceed the amount of Rent paid by Lessee to Lessor hereunder. IN
ADDITION TO ANY OTHER LIMITATIONS PROVIDED HEREIN, LESSOR SHALL NOT BE LIABLE
FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES.
13.2 LESSEE'S INDEMNITY. Lessee will indemnify and hold Lessor harmless
from and against all losses, damages, injuries, liabilities, claims and expenses
in any way resulting from, relating to, or arising out of the use, operation, or
other disposition of the Equipment or any part thereof by Lessee, or its
employees.
14. EXHIBITS. All Exhibits, Riders and Schedules attached hereto are
incorporated in and by this reference made part of this Agreement.
15. BINDING EFFECT; ASSIGNMENT; JOINT AND SEVERAL LIABILITY. This Agreement
shall inure to the benefit of, and be binding on Lessee, Lessor and their
respective legal and personal representatives, heirs, executors, administrators,
successors, agents and permitted assigns. Lessee may not assign this Agreement.
Lessor may assign its rights and delegate its duties hereunder without Lessee's
prior consent. Upon such assignment, Lessee shall be deemed to have attorned to
such assignee and shall owe the same obligations to such assignee and shall
accept performance hereunder by such assignee as if such assignee were Lessor.
If more than one Lessee is a party hereto, all obligations, covenants,
representations, warranties and agreements of Lessee contained herein are joint
and several.
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16. UCC FILING. Following the UCC-1 filing for the Equipment that is delivered
to Lessee, there will be a supplementary filing for each piece of additional
equipment, if any, which may be subsequently delivered.
17. HEADINGS. The section and other headings contained in this Agreement are for
reference purposes only, and shall not affect the meaning or interpretation
hereof.
18. GOVERNING LAW. This Lease shall be governed by and construed in accordance
with the laws of the State of Colorado without regard to principles of conflict
of laws.
19. AMENDMENT AND WAIVER. Only a writing signed by all parties hereto may amend
this Agreement. No failure or delay in exercising any right hereunder shall
impair any such right that Lessor may have, nor shall any waiver by Lessor
hereunder be deemed a waiver of any default or breach subsequently occurring.
Lessor's rights and remedies herein are cumulative and not exclusive of each
other, or of any rights or remedies that Lessor would otherwise have.
20. SEVERABILITY. In the event any one or more of the provisions contained in
this Agreement is held to be invalid, illegal or unenforceable in any respect,
then such provision shall be ineffective only to the extent of such prohibition
or invalidity, and the validity, legality, and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
21. ENFORCEMENT. This Agreement and all agreements relating to the subject
matter hereof is the product of negotiation and preparation by and among each
party and its respective attorneys, and shall be construed accordingly.
22. RELATIONSHIP OF PARTIES. The relationship of the parties hereto shall be
that of a lessor and lessee of personal property, and Lessor shall not be a
secured creditor of Lessee.
23. ATTORNEYS' FEES AND INTEREST. If any action is filed in relation to this
Agreement, the unsuccessful party in the action shall pay to the successful
party, in addition to all other sums that either party may be called on to pay,
a reasonable sum for the successful party's attorney's fees and costs.
23.1 REIMBURSEMENT OF LESSOR'S ATTORNEY'S FEES, COSTS AND EXPENSES. In
addition to the foregoing, Lessee agrees to reimburse Lessor on demand for the
actual amount of all costs and expenses, including attorneys' fees, which Lessor
has incurred or may incur in:
23.1.1 Negotiating, preparing, modifying or administering this
Agreement and any documents prepared in connection herewith;
23.1.2 Enforcing this Agreement against the Lessee or in any way
arising out of, or in connection with, this Agreement. The Parties agree that
this specifically includes, but is not limited to, those disputes involving this
Agreement which may or may not involve Lessor;
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23.1.3 Protecting, preserving or enforcing any lien, security interest
or other right granted by Lessee to Lessor, or arising under applicable law,
whether or not suit is brought, including, but not limited to, the defense of
Lessor's lien priority;
23.1.4 Enforcing any of the indemnification provisions found in this
Agreement;
23.1.5 Filing and/or perfecting any claim in a bankruptcy or other
insolvency proceeding in which the Lessee or any Guarantor is a debtor or a
party, along with any litigation or proceedings related to the foregoing
including, but not limited to, prosecuting or defending any and all proceedings
(legal, administrative or otherwise) concerning said claim. The foregoing
specifically includes any and all causes of action or other proceedings brought
by the Lessee or any Guarantor, or a trustee in bankruptcy, or any third-party
concerning said claim.
23.1.6 The actual costs, including photocopying (which, if performed
by Lessor's employees, shall be at the rate of $.20/page), travel, and
attorneys' fees and expenses incurred in complying with any subpoena or other
legal process in any way relating to Lessee.
23.1.7 The actual amount of all costs and expenses, including
attorneys' fees, which Lessor may incur in enforcing this Agreement and any
documents prepared in connection herewith, or in connection with any federal or
state insolvency proceeding commenced by or against Lessee, including those (i)
arising out the automatic stay, (ii) seeking dismissal or conversion of the
bankruptcy proceeding or (iii) opposing confirmation of Lessee's plan
thereunder.
23.2 INTEREST. Any amount not paid when due under this Agreement by either
of the parties shall bear interest (hereinafter "Interest") in favor of the
payee of that sum at the rate of one and one-half percent (1.5%) per month for
each month and a PRO RATA amount for each period of less than a full month that
the payment is late. For purposes of calculating Interest due under this
Agreement, the parties agree to use a three hundred sixty day (360) year
consisting of twelve (12) months of thirty (30) days each.
23.3 This Section 23 shall survive termination of this Agreement.
24. ENTIRE AGREEMENT. No promises of any kind have been made by Lessor or any
third party to induce Lessee to execute this Agreement. No course of dealing,
course of performance or trade usage, and no parole evidence of any nature,
shall be used to supplement or modify any provisions of this Agreement.
25. JURY TRIAL WAIVER. IN RECOGNITION OF THE HIGHER COSTS AND DELAY WHICH MAY
RESULT FROM A JURY TRIAL, THE PARTIES HERETO WAIVE ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING HEREUNDER, OR (II) IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT HERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY SUCH ACTION IN WHICH A
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JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE
OR HAS NOT BEEN WAIVED; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
26. VENUE; JURISDICTION. Any suit, action or proceeding arising hereunder, or
the interpretation, performance or breach hereof shall, if Purchaser so elects,
be instituted in any court sitting in Colorado, in the city in which Lessor's
chief executive office is located, or if none, any court sitting in Colorado
(the "Acceptable Forums"). Seller agrees that the Acceptable Forums are
convenient to it, and submits to the jurisdiction of the Acceptable Forums and
waives any and all objections to jurisdiction or venue. Should such proceeding
be initiated in any other forum, Seller waives any right to oppose any motion or
application made by Purchaser to transfer such proceeding to an Acceptable
Forum.
27. SERVICE OF PROCESS. Lessee agrees that Lessor may effect service of process
upon Lessee by regular mail at the address set forth herein or at such other
address as may be reflected in the records of Lessor, or at the option of Lessor
by service upon Lessee's agent for the service of process.
28. COUNTERPARTS. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if all signatures
were upon the same instrument. Delivery of an executed counterpart of the
signature page to this Agreement by facsimile shall be effective as delivery of
a manually executed counterpart of this Agreement, and any party delivering such
an executed counterpart of the signature page to this Agreement by facsimile to
any other party shall thereafter also promptly deliver a manually executed
counterpart of this Agreement to such other party, provided that the failure to
deliver such manually executed counterpart shall not affect the validity,
enforceability, or binding effect of this Agreement.
29. FURTHER ASSURANCES. Lessee, before, at and after the Commencement Date, upon
the request of Lessor and without further consideration (other than
reimbursement of reasonable out-of-pocket expenses), shall do each and every act
and thing as may be necessary or reasonably desirable to consummate the
transactions contemplated hereby.
30. INCORPORATION BY REFERENCE. The Exhibits identified in this Agreement are
incorporated herein by reference and made a part hereof.
31. GUARANTIES. The parties to this Agreement agree that, as an express
condition precedent to Lessor's leasing the Equipment to Lessee, that guaranties
of payment of all obligations due from Lessee to Lessor substantially in the
form attached hereto as Exhibit "E" be provided by Lessee's shareholders,
officers, directors, managers, members, other persons effectively controlling
the Lessee and such other persons as Lessor may require.
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32. SURVIVAL. The following provisions of this Agreement will survive past the
Commencement Date indefinitely: XXXXXX.
IN WITNESS WHEREOF, the Parties have executed this agreement on the day and
year first above written.
LESSEE LESSOR
By: By:
---------------------------------- ------------------------------
Name: Name:
-------------------------------- -----------------------------
Title: Title:
------------------------------- ---------------------------
Date: Date:
--------------------------------- ----------------------------
ACKNOWLEDGMENT
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged, subscribed and sworn to before
me by _________________, personally known to me, this ____ day of ____________,
2006.
Witness my hand and official seal.
----------------------------
NOTARY PUBLIC
My Commission Expires:
ACKNOWLEDGMENT
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged, subscribed and sworn to before
me by _________________, personally known to me, this ____ day of ____________,
2006.
Witness my hand and official seal.
----------------------------
NOTARY PUBLIC
My Commission Expires:
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EXHIBIT A--LIST OF EQUIPMENT
EXHIBIT B--GUARANTIES
Page 11 of 11
