MASTER EQUIPMENT
LEASE AGREEMENT
LESSEE: TOASTMASTER, INC. LESSOR: AT&T SYSTEMS LEASING
CORPORATION
STREET ADDRESS: 1801 North Address: 0000 Xxxxxxxxx Xxxx
Stadium 0xx Xxxxx
Xxxxxxxxx Xxxxxxxxxx Xxxxx, XX 00000
CITY/STATE/ZIP: Columbia, MO Lease
65202 Number:
1. AGREEMENT. Lessor agrees to lease to Lessee and Lessee
agrees to lease from Lessor the equipment (Equipment) described
in any schedule (Schedule) that incorporates this Master
Equipment Lease Agreement (Agreement) by reference. A Schedule
shall incorporate this Agreement by reference by listing the
above-referenced Lease Number thereon. Such lease shall be
governed by the terms and conditions of this Agreement, as well
as by the terms and conditions set forth in the applicable
Schedule. Each Schedule shall constitute an agreement separate
and distinct from this Agreement and any other Schedule. In the
event of a conflict between the provisions of this Agreement and
a Schedule, the provisions of the Schedule shall govern.
2. ASSIGNMENT OF PURCHASE DOCUMENTS. Lessee shall execute
and deliver to Lessor a writing acceptable to Lessor whereby
Lessor is assigned all of Lessee's rights and interest in and to:
(a) the Equipment described in the applicable Schedule and (b)
any purchase order, contract or other documents (collectively,
Purchase Documents) relating thereto that Lessee has entered into
with the Seller (as specified in the applicable Schedule). If
Seller is not an affiliate of Lessor, Lessee shall deliver to
Lessor a writing acceptable to Lessor whereby Seller
acknowledges, and provides any required consent to, such
assignment. If Lessee has not entered into any Purchase Document
for the Equipment with Seller, Lessee authorizes Lessor to act as
Lessee's agent to issue a purchase order to Seller for the
Equipment and for associated matters, and such purchase order
shall be subject to this Section 2 and all references in this
Agreement to Purchase Documents shall include such purchase
order. By executing the applicable Schedule, Lessee represents
and warrants that Lessee either (y) has reviewed, approved and
received a copy of the applicable Purchase Documents or (z) has
been informed by Lessor (i) of the identity of the Seller, (ii)
that Lessee may have rights under the Purchase Documents and
(iii) that Lessee may contact Seller for a description of such
rights. The foregoing information shall not be applicable if the
Equipment specified in the Schedule is not new equipment being
purchased by Lessor to for lease to Lessee.
3. DELIVERY; ACCEPTANCE. Lessee shall cause the Equipment
to be delivered, at Lessee's expense, to Lessee at the Equipment
Location (as specified in the applicable Schedule) and Lessee
shall accept the Equipment upon the later of (a) the installation
of the Equipment or (b) the satisfaction of the acceptance
criteria, if any, specified in the applicable Purchase Documents.
In any event, Lessee shall evidence its acceptance of the
Equipment and commencement of the lease with respect thereto by
executing and delivering to Lessor a commencement certificate
(Commencement Certificate) in a form acceptable to Lessor within
five (5) business days after delivery. By executing and
delivering a Commencement Certificate to Lessor, (x) Lessee
represents and warrants that it has selected the Equipment and
Seller specified on the applicable Schedule and (y) Lessee has
irrevocably accepted such Equipment under lease. Lessee shall
reimburse Lessor for any late payment, interest on late payment
or any other similar fee or charge imposed by Seller as the
result of Lessee's failure to timely furnish all pertinent lease
documentation.
4. PURCHASE OF EQUIPMENT. Provided that no Event of
Default (as defined in Section 18) exists, and no event has
occurred and is continuing that with notice or the lapse of time
or both would constitute an Event of Default, Lessor shall be
obligated to purchase the Equipment from Seller and to lease the
Equipment to Lessee if (and only if) Lessor receives on or before
the Latest Commencement Date (as specified in the applicable
Schedule) the related Commencement Certificate and Schedule (both
executed by Lessee), and such other documents or assurances as
Lessor may reasonably request. The foregoing information shall
not be applicable if the Equipment specified in the Schedule is
not new equipment being purchased by Lessor for lease to Lessee.
5. TERM. The initial term of each Schedule (Initial Term)
shall begin on the date specified as the Commencement Date on the
Commencement Certificate with respect to such Schedule and shall
continue for the period specified in such Schedule. Any renewal
term of a Schedule (Renewal Term) shall begin on the expiration
of, as applicable, the Initial Term or any preceding Renewal Term
(collectively, Term).
6. RENT; LATE CHARGES. Lessee shall pay Lessor the first
Rental Payment (as specified in the applicable Schedule) for the
Equipment on or before the Commencement Date of the applicable
Schedule and shall pay Lessor the remaining periodic Rental
Payments on or before the periodic payment dates specified in the
applicable Schedule. Additionally, if pursuant to this Agreement
or the applicable Schedule the Term is extended or a renewal
option exercised, Lessee shall also pay all Rental Payments
required with respect thereto. All Rental Payments will be sent
to Lessor's above-referenced address, or to such other address as
specified by Lessor in writing. Lessee agrees to pay Lessor
interest at the rate of 1-1/2% per month (or such lesser rate as
is the maximum rate allowable under applicable law) on any Rental
Payment (or other amount due hereunder) that is not paid within
10 days of its due date.
7. INSURANCE. At its own expense, Lessee shall provide
and maintain the following insurance: (a) insurance against the
loss or theft of or damage to the Equipment for the greater of
the Stipulated Loss Value (computed as described in the
applicable Schedule) or full replacement value thereof, naming
Lessor as a loss payee; and (b) public liability and third party
property damage insurance, naming Lessor as an additional
insured. Such insurance shall be in a form, amount and with
companies reasonably satisfactory to Lessor, shall contain the
insurer's agreement to give Lessor 30 days' prior written notice
before cancellation or material change thereof, and shall be
payable to Lessor regardless of any act, omission or breach by
Lessee. Lessee shall deliver to Lessor the insurance policies or
copies thereof or certificates of such insurance on or before the
Commencement Date of the applicable Schedule, and at such other
times as Lessor may reasonably request. If no Event of Default
exists, and no event has occurred and is continuing that with
notice or the lapse of time or both would constitute an Event of
Default, the proceeds of any insurance required under clause (a)
hereof that have been paid to Lessor shall be applied against
Lessee's obligations to Lessor under Section 12 hereof.
8. TAXES. Lessee shall reimburse Lessor for (or pay
directly, but only if instructed by Lessor) all taxes, fees, and
assessments that may be imposed by any taxing authority on the
Equipment, on its purchase, ownership, delivery, possession,
operation, rental, return to Lessor or its purchase by Lessee
(collectively, Taxes); provided, however, that Lessee shall not
be liable for any such Taxes (whether imposed by the United
States of America or by any other domestic or foreign taxing
authority) imposed on or measured by Lessor's net income or tax
preference items. Lessee's obligation includes, but is not
limited to, the obligation to pay all license and registration
fees and all sales, use, personal property and other taxes and
governmental charges, together with any penalties, fines and
interest thereon, that may be imposed during the Term of the
applicable Schedule. Lessee is liable for these Taxes whether
they are imposed upon Lessor, Lessee, the Equipment, this
Agreement or the applicable Schedule. If Lessee is required by
law or administrative practice to make any report or return with
respect to such Taxes, Lessee shall promptly advise Lessor
thereof in writing and shall cooperate with Lessor to ensure that
such reports are properly filed and accurately reflect Lessor's
interest in the Equipment. Lessor has no obligation to contest
any such Taxes, however Lessee may do so provided that: (a)
Lessee does so in its own name and at its own expense; (b) the
contest does not and will not result in any lien attaching to any
Equipment or otherwise jeopardize Lessor's right to any
Equipment; and (c) Lessee indemnifies Lessor for all expenses
(including legal fees and costs), liabilities and losses that
Lessor incurs as a result of any such contest.
9. REPAIRS; USE; LOCATION; LABELS. Lessee shall: (a) at
its own expense, keep the Equipment in good repair, condition and
working order and maintained in accordance with the
manufacturer's recommended engineering and maintenance standards;
(b) use the Equipment lawfully and exclusively in connection with
its business operations and for the purpose for which the
Equipment was designed and intended; and (c) without Lessor's
prior written consent, not move the Equipment from the Equipment
Location. If Lessor supplies Lessee with labels stating that the
Equipment is owned by Lessor, Lessee shall affix such labels to
the Equipment pursuant to Lessor's instructions.
10. MAINTENANCE; INSPECTION; ALTERATIONS. At its own
expense, Lessee shall: (a) enter into and maintain a maintenance
agreement for the Equipment with the manufacturer or other party
acceptable to Lessor; (b) maintain the Equipment in the same
condition as when delivered, subject only to ordinary wear and
tear, and in good operating order and appearance; (c) make all
alterations or additions to the Equipment that may be required or
supplied by the Seller, the manufacturer or which is otherwise
legally necessary; and (d) make no other alterations or additions
to the Equipment (except for alterations or additions that will
not impair the value or performance of the Equipment and that are
readily removable without damage to the Equipment). Any
modifications, alterations or additions that Lessee makes to the
Equipment (except as permitted by Section 10(d) above) shall
become Lessor's property and shall also be deemed to be
Equipment. Upon request, Lessor, or any party designated by
Lessor, shall have the right to inspect the Equipment and
Lessee's applicable maintenance agreement and records at any
reasonable time.
11. PERSONAL PROPERTY; LIENS AND ENCUMBRANCES; TITLE. The
Equipment shall at all times remain personal property,
notwithstanding that the Equipment, or any part thereof, may be
(or becomes) affixed or attached to real property or any
improvements thereon. Except for the interest of Lessor, Lessee
shall keep the Equipment free and clear of all levies, liens and
encumbrances of any nature whatsoever. Except as expressly set
forth in this Agreement, the Equipment shall at all times remain
the property of Lessor and Lessee shall have no right, title or
interest therein.
12. RISK OF LOSS. As between Lessor and Lessee, Lessee
shall bear the entire risk of loss, theft, destruction or damage
to the Equipment from any cause whatsoever or requisition of the
Equipment by any governmental entity or the taking of title to
the Equipment by eminent domain or otherwise (collectively Loss).
Lessee shall advise Lessor in writing within 10 days of any of
any such Loss. Except as provided below, no such Loss shall
relieve Lessee of the obligation to pay Lessor Rental Payments
and all other amounts owed hereunder. In the event of any such
Loss, Lessor, at its option, may: (a) if the Loss has not
materially impaired the Equipment (in Lessor's reasonable
judgment), require Lessee, upon Lessor's demand, to place the
Equipment in good condition and repair reasonably satisfactory to
Lessor; or (b) if the Loss has materially impaired the Equipment
(in Lessor's reasonable judgment), require Lessee, upon Lessor's
demand, to pay Lessor its anticipated return (Lessor's Return),
which shall consist of the following amounts: (i) the Rental
Payments (and other amounts) then due and owing under the
applicable Schedule; plus (ii) the Stipulated Loss Value
(computed as described in the applicable Schedule) of the
Equipment, plus (iii) all other amounts that become due and owing
under the applicable Schedule, but only to the extent such
amounts are not included in the moneys paid to Lessor pursuant to
clauses (i) and (ii) above. Upon Lessor's full receipt of such
Lessor's Return: (y) the applicable Schedule shall terminate,
and except as provided in Section 24, Lessee shall be relieved of
all obligations under the applicable Schedule; and (z) Lessor
shall transfer all of its interest in the Equipment to Lessee "AS
IS, WHERE IS," and without any warranty, express or implied from
Lessor, other than the absence of any liens or claims by,
through, or under Lessor. Notwithstanding clause (b) hereof,
Lessee may, at its option, continue Rental Payments under the
applicable Schedule, without interruption, and replace the
damaged Equipment with Equipment of identical model,
manufacturer, and condition (Replacement Equipment) (in which
case Lessee shall cause the Replacement Equipment to be delivered
to a location acceptable to Lessor and shall convey title (lien
free) to the Lessor whereupon the Replacement Equipment shall be
subject to all of the terms and conditions of this Agreement and
the applicable Schedule).
13. NON-CANCELABLE NET LEASE. ALL LEASES HEREUNDER SHALL
BE NON-CANCELABLE NET LEASES, AND LESSEE AGREES THAT IT HAS AN
UNCONDITIONAL OBLIGATION TO PAY ALL RENTAL PAYMENTS AND OTHER
AMOUNTS WHEN DUE. LESSEE IS NOT ENTITLED TO XXXXX OR REDUCE
RENTAL PAYMENTS OR ANY OTHER AMOUNTS DUE, OR TO SET OFF ANY
CHARGES AGAINST THOSE AMOUNTS. LESSEE IS NOT ENTITLED TO
RECOUPMENTS, CROSS-CLAIMS, COUNTERCLAIMS OR ANY OTHER DEFENSES TO
ANY RENTAL PAYMENTS OR OTHER AMOUNTS DUE HEREUNDER, WHETHER THOSE
DEFENSES ARISE OUT OF CLAIMS BY LESSEE AGAINST LESSOR, SELLER,
THIS AGREEMENT, ANY SCHEDULE OR OTHERWISE. NEITHER DEFECTS IN
EQUIPMENT, DAMAGE TO IT, NOR ITS LOSS, DESTRUCTION OR LATE
DELIVERY SHALL TERMINATE THIS AGREEMENT OR ANY SCHEDULE, OR
AFFECT LESSEE'S OBLIGATIONS HEREUNDER. UNLESS LESSEE'S
OBLIGATION TO PAY RENTAL PAYMENTS AND OTHER AMOUNTS HAS BEEN
TERMINATED PURSUANT TO THE EXPRESS TERMS OF THIS AGREEMENT, ALL
RENTAL PAYMENTS AND OTHER AMOUNTS SHALL CONTINUE TO BE DUE AND
PAYABLE HEREUNDER.
14. LESSOR DISCLAIMERS; LIMITATION OF REMEDIES. IT IS
SPECIFICALLY UNDERSTOOD AND AGREED THAT: (A) LESSOR SHALL NOT BE
DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR PROMISE MADE
BY SELLER, NEITHER SELLER NOR LESSOR SHALL ACT AS, OR BE DEEMED
TO BE, AN AGENT OF THE OTHER, AND LESSOR SHALL NOT BE BOUND BY,
OR LIABLE FOR, ANY REPRESENTATION OR PROMISE MADE BY SELLER (EVEN
IF LESSOR IS AFFILIATED WITH SELLER); (B) LESSOR SHALL NOT BE
LIABLE FOR ANY FAILURE OF ANY EQUIPMENT OR ANY DELAY IN ITS
DELIVERY OR INSTALLATION; (C) LESSOR SHALL NOT BE LIABLE FOR ANY
BREACH OF ANY WARRANTY THAT SELLER MAY HAVE MADE; (D) LESSEE HAS
SELECTED ALL EQUIPMENT WITHOUT LESSOR'S ASSISTANCE; (E) LESSOR IS
NOT A MANUFACTURER OF ANY EQUIPMENT; AND (F) LESSOR HAS NOT MADE
AND DOES NOT NOW MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO THE DESIGN, COMPLIANCE WITH
SPECIFICATIONS, OPERATION, OR CONDITION OF ANY EQUIPMENT (OR ANY
PART THEREOF), THE MERCHANTABILITY OR FITNESS OF EQUIPMENT FOR A
PARTICULAR PURPOSE, OR ISSUES REGARDING PATENT INFRINGEMENT,
TITLE AND THE LIKE. IT IS FURTHER AGREED THAT LESSOR SHALL HAVE
NO LIABILITY TO LESSEE, LESSEE'S CUSTOMERS, OR ANY THIRD PARTIES
FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF THIS AGREEMENT OR ANY SCHEDULE OR CONCERNING ANY
EQUIPMENT, OR FOR ANY DAMAGES BASED ON STRICT OR ABSOLUTE TORT
LIABILITY; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT
SHALL DEPRIVE LESSEE OF ANY RIGHTS IT MAY HAVE AGAINST ANY PERSON
OTHER THAN LESSOR. LESSEE SHALL LOOK SOLELY TO SELLER FOR ANY
AND ALL CLAIMS AND WARRANTIES RELATING TO THE EQUIPMENT. Lessor
hereby assigns to Lessee for the term of the applicable Schedule
the right to enforce; provided no Event of Default then exists
under this Agreement and such enforcement is pursued in Lessee's
name, any representations, warranties and agreements made by
Seller pursuant to the purchase documents, and Lessee may retain
any recovery resulting from any such enforcement efforts. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, LESSEE WAIVES ANY AND ALL
RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A OF THE
UCC AND ANY RIGHTS NOW OR HEREINAFTER CONFERRED BY STATUTE OR
OTHERWISE THAT MAY LIMIT OR MODIFY LESSOR'S RIGHTS AS DESCRIBED
IN THIS SECTION OR OTHER SECTIONS OF THIS AGREEMENT.
15. LESSEE WARRANTIES. Lessee represents, warrants and
covenants to Lessor that: (a) unless it is an individual, Lessee
is duly organized, validly existing and in good standing under
applicable law; (b) Lessee has the power and authority to enter
into this Agreement, all Schedules and all other related
instruments or documents hereunder (collectively, Fundamental
Agreements); (c) such Fundamental Agreements are enforceable
against Lessee in accordance with their terms and do not violate
or create a default under any instrument or agreement binding on
Lessee; (d) there are no pending or threatened actions or
proceedings before any court or administrative agency that would
have a material adverse effect on Lessee or any Fundamental
Agreement, unless such actions are disclosed to Lessor and
consented to in writing by Lessor; (e) Lessee shall comply in all
material respects with all Federal, state and municipal laws and
regulations the violation of which could have a material adverse
effect upon the Equipment or Lessee's performance of its
obligations under any Fundamental Agreement; (f) Lessee shall
obtain all governmental approvals necessary for it to enter into
and perform each Fundamental Agreement; (g) each Fundamental
Agreement shall be effective against all creditors of Lessee
under applicable law, including fraudulent conveyance and bulk
transfer laws, and shall raise no presumption of fraud; (h)
financial statements and other related in formation furnished by
Lessee shall be prepared in accordance with generally accepted
accounting principles and shall present Lessee's financial
position as of the dates given on such statements; (i) Lessee
shall furnish Lessor with its certified financial statements,
opinions of counsel, resolutions, and such other information and
documents as Lessor may reasonably request; (j) ALL EQUIPMENT IS
LEASED FOR BUSINESS PURPOSES ONLY, AND NOT FOR PERSONAL, FAMILY
OR HOUSEHOLD PURPOSES; and (k) all Equipment is tangible personal
property and shall not become a fixture or real property under
Lessee's use thereof. Lessee shall be deemed to have reaffirmed
the foregoing warranties each time it executes any Fundamental
Agreement.
16. GENERAL INDEMNITY. Lessee shall indemnify, hold
harmless, and, if so requested by Lessor, defend Lessor against
all claims (Claims) directly or indirectly arising out of or
connected with the Equipment or any Fundamental Agreement.
Claims refers to all losses, liabilities, damages, penalties,
expenses (including legal fees and costs), claims, actions, and
suits, whether based on a theory of strict liability of Lessor or
otherwise, and includes, but is not limited to, matters
regarding: (a) the selection, manufacture, purchase, acceptance,
rejection, ownership, delivery, lease, possession, maintenance,
use, condition, return or operation of the Equipment; (b) any
latent defects or other defects in any Equipment, whether or not
discoverable by Lessor or by Lessee; (c) any patent, trademark,
or copyright infringement; and (d) the condition of any Equipment
arising or existing during Lessee's use.
17. SURRENDER; EXTENSION OF TERM. Unless Lessee purchases
the Equipment or renews the Term pursuant to the applicable
Schedule, or acquires the Equipment pursuant to Section 12
hereof, Lessee shall, at its expense, deinstall, inspect and
properly pack the Equipment, and return the Equipment at the
expiration of the Term, free of all liens and rights of others,
by delivering it on board such common carrier as Lessor may
specify with freight prepaid to any destination within the United
States of America specified by Lessor. The Equipment shall be
accompanied by an original copy of the relocation inventory or
other applicable form completed by the agent performing the
deinstallation. If Lessor so requests, Lessor and its agents
shall have the right to enter upon any premises where Equipment
may be located to perform any of Lessee's tasks noted above in
this Section 17, and Lessee shall reimburse Lessor for all costs
and expenses Lessor incurs in fulfilling such tasks. Lessee
agrees that the Equipment, when returned to Lessor, shall be in
the same condition as when delivered to Lessee, reasonable wear
and tear excepted, and certified as being eligible for the
manufacturer's generally available maintenance contract at then
prevailing rates, without Lessor incurring any expense to repair,
rehabilitate or certify such Equipment (Lessee shall be liable
for all costs and expenses Lessor incurs to place the Equipment
in such condition). If requested by Lessor, Lessee, at its
expense, shall store the Equipment on its premises for a
reasonable period, not to exceed ten (10) business days during
which period the Equipment shall be subject to all of the terms
and conditions hereof, except for the obligation to make Rental
Payments. In all instances where Lessee is returning Equipment
to Lessor, Lessee shall give Lessor written notice thereof in
accordance with the terms of the applicable Schedule. If Lessee
fails to provide the aforementioned notice or return the
Equipment to lessor in the time and manner provided above, the
Term shall be extended in accordance with the terms of the
applicable Schedule. If any Schedule is extended pursuant to the
preceding sentence, Lessee shall continue to pay the higher of
the periodic Rental Payments in effect prior to the expiration of
the then existing term of the applicable Schedule (whether it be
the Initial Term or any Renewal Term (Applicable Term)) or such
other periodic rental payment amount as is specified for such
extension period in the Schedule, and all other provisions of
this Agreement shall continue to apply.
18. EVENTS OF DEFAULT. Any of the following shall
constitute an Event of Default under this Agreement and all
Schedules: (a) Lessee fails to pay any Rental Payment or any
other amount payable to Lessor hereunder within 10 days after its
due date; or (b) Lessee fails to perform or observe any other
representation, warranty, covenant, condition or agreement to be
performed or observed by Lessee hereunder or in any other
agreement with Lessor, or in any agreement with any other person
that in Lessor's sole opinion is a material agreement, and Lessee
fails to cure any such breach within 10 days after notice
thereof; or (c) any representation or warranty made by Lessee
hereunder, or in any other instrument provided to Lessor by
Lessee, proves to be incorrect in any material respect when made;
or (d) Lessee makes an assignment for the benefit of creditors,
whether voluntary or involuntary; or (e) a proceeding under any
bankruptcy, reorganization, arrangement of debts, insolvency or
receivership law is filed by or against Lessee or Lessee takes
any action to authorize any of the foregoing matters; or (f)
Lessee becomes insolvent or fails generally to pay its debts as
they become due, the Equipment is levied against, seized or
attached, or Lessee seeks to effectuate a bulk sale of Lessee's
inventory or assets; or (g) Lessee voluntarily or involuntarily
dissolves or is dissolved, or terminates or is terminated; or (h)
any guarantor under this Agreement is the subject of an event
listed in clauses (b) through (g) above; or (i) any letter of
credit required pursuant to any Schedule is breached, canceled,
terminated or not renewed during the Term of any such Schedule.
19. REMEDIES. If an Event of Default occurs, Lessor may,
in its sole discretion, exercise one or more of the following
remedies: (a) terminate this Agreement or any or all Schedules;
or (b) take possession of, or render unusable, any Equipment
wherever the Equipment may be located, without demand or notice,
without any court order or other process of law and without
liability to Lessee for any damages occasioned by such action,
and no such action shall constitute a termination of any
Schedule; or (c) require Lessee to deliver the Equipment at a
location designated by Lessor; or (d) declare the Lessor's Return
(as defined in Section 12 hereof and calculated by Lessor as of
the date of the Event of Default) for each applicable Schedule
due and payable as liquidated damages for loss of a bargain and
not as a penalty and in lieu of any further Rental Payments under
the applicable Schedule; or (e) proceed by court action to
enforce performance by Lessee of any Schedule and/or to recover
all damages and expenses incurred by Lessor by reason of any
Event of Default; or (f) terminate any other agreement that
Lessor may have with Lessee; or (g) exercise any other right or
remedy available to lessor at law or in equity. Also, Lessee
shall pay Lessor all costs and expenses (including legal fees and
costs and fees of collection agencies) incurred by Lessor in
enforcing any of the terms, conditions or provisions of this
Agreement. Upon repossession or surrender of any equipment,
Lessor shall lease, sell or otherwise dispose of the Equipment in
a commercially reasonable manner, with or without notice and at
public or private sale, and apply the net proceeds thereof (after
deducting all expenses (including legal fees and costs) incurred
in connection therewith) to the amounts owed to Lessor hereunder;
provided, however, that Lessee shall remain liable to Lessor for
any deficiency that remains after any sale or lease of such
Equipment. Lessee agrees that with respect to any notice of a
sale required by law to be given 10 days' notice shall constitute
reasonable notice. These remedies are cumulative of every other
right or remedy given hereunder or now or hereafter existing at
law or in equity or by statute or otherwise, and may be enforced
concurrently therewith or from time to time.
20. LESSOR'S PERFORMANCE OF LESSEE'S OBLIGATIONS. If
Lessee fails to perform any of its obligations hereunder, Lessor
may perform any act or make any payment that Lessor deems
reasonably necessary for the maintenance and preservation of the
Equipment and Lessor's interests therein; provided, however, that
the performance of any act or payment by Lessor shall not be
deemed a waiver of, or release Lessee from, the obligation at
issue. All sums so paid by Lessor, together with expenses
(including legal fees and costs) incurred by Lessor in connection
therewith, shall be paid to Lessor by Lessee immediately upon
demand.
21. FINANCING OF ADDITIONS. If, under any Schedule, Lessee
intends to make any addition to the Equipment, Lessee shall, in
writing, request Lessor to finance the costs of such addition.
Lessee shall provide Lessor with the terms under which it hopes
to obtain the financing, and upon receiving such a request Lessor
shall determine, in its sole discretion, whether to provide such
financing. If Lessor does not, within 20 days after receiving
Lessee's request, offer to finance the addition upon the terms
requested by Lessee, Lessee may obtain offers from third parties
for financing the addition, and Lessee shall notify Lessor of the
details of any third party financing offer Lessee would like to
accept (Third Party Offer). If Lessor has not made a financing
offer to Lessee on terms substantially similar to the Third Party
Offer within 20 days of receiving Lessee's notice, Lessee may
accept the Third Party Offer unless: (a) the aggregate cost to
Lessee of obtaining financing from the Third Party Offer is
greater than the aggregate cost under Lessor's financing offer,
or (b) the Third Party Offer would create a security interest in,
or a lien on, the Equipment; or (c) the addition is not permitted
under Section 10(d) hereof.
22. ASSIGNMENT BY LESSOR. Lessor shall have the
unqualified right to assign, pledge, transfer, mortgage or
otherwise convey any of its interests hereunder or in any
Schedule or any Equipment, in whole or in part, without notice
to, or consent of, Lessee. If any Schedule is assigned, Lessee
shall: (a) unless otherwise specified by the Lessor and the
assignee (Assignee) specified by Lessor, pay all amounts due
under the applicable Schedule to such Assignee, notwithstanding
any defense, setoff or counterclaim whatsoever that Lessee may
have against Lessor or Assignee; (b) not permit the applicable
Schedule to be amended or the terms thereof waived without the
prior written consent of the Assignee; (c) not require the
Assignee to perform any obligations of Lessor, other than those
that are expressly assumed in writing by such assignee; and (d)
execute such acknowledgments thereto as may be requested by
Lessor. It is further agreed that: (x) each assignee shall be
entitled to all of Lessor's rights, powers and privileges under
the applicable Schedule, to the extent assigned; (y) any Assignee
may reassign its rights and interest under the applicable
Schedule with the same force and effect as the assignment
described herein; and (z) any payments received by the Assignee
from Lessee with respect to the assigned portion of the Schedule
shall, to the extent thereof, discharge the obligations of Lessee
to Lessor with respect to the assigned portion of the Schedule.
LESSEE ACKNOWLEDGES THAT ANY ASSIGNMENT OR TRANSFER BY LESSOR OR
ANY ASSIGNEE SHALL NOT MATERIALLY CHANGE LESSEE'S OBLIGATIONS
UNDER THE ASSIGNED SCHEDULE.
23. ASSIGNMENT OR SUBLEASE BY LESSEE. WITHOUT LESSOR'S
PRIOR WRITTEN CONSENT, LESSEE SHALL NOT ASSIGN THIS AGREEMENT OR
ANY SCHEDULE OR ASSIGN ITS RIGHTS IN OR SUBLET THE EQUIPMENT OR
ANY INTEREST THEREIN; provided, however, that Lessee may sublease
or assign a Schedule to an affiliate or a wholly-owned subsidiary
of Lessee if: (a) Lessee and such sublessee or assignee execute
and deliver to Lessor a writing (to be provided by Lessor)
whereby the sublessee or assignee agrees to assume joint and
several liability with Lessee for the full and prompt payment,
observance and performance when due of all of the obligations of
the Lessee under such Schedule; and (b) Lessor consents to such
sublease or assignment, which consent shall not be unreasonably
withheld. In no event, however, shall any such sublease or
assignment discharge or diminish any of Lessee's obligations to
Lessor under such Schedule.
24. SURVIVAL; QUIET ENJOYMENT. All representations,
warranties and covenants made by Lessee hereunder shall survive
the termination of this Agreement and shall remain in full force
and effect. All of Lessor's rights, privileges, and indemnities,
to the extent they are fairly attributable to events or
conditions occurring or existing on or prior to the termination
of this Agreement, shall survive such termination and be
enforceable by Lessor and any successors and assigns. So long as
no Event of Default exists, and no event has occurred and is
continuing that with notice or the lapse of time or both would
constitute an Event of Default, neither Lessor nor any Assignee
will interfere with Lessee's quiet enjoyment of the Equipment.
25. FILING FEES; FURTHER ASSURANCES; NOTICES. Lessee will
promptly reimburse Lessor for any filing or recordation fees or
expenses (including lien search fees, legal fees and costs)
incurred by Lessor in perfecting or protecting its interests in
the Equipment and under this Agreement. Lessee shall promptly
execute and deliver to Lessor such documents and take such
further action as Lessor may from time to time reasonably request
in order to carry out the intent and purpose of this Agreement
and to protect the rights and remedies of Lessor created or
intended to be created hereunder. All notices under this
Agreement shall be sent to the respective party at its address
set forth on the front page of this Agreement or on the
applicable Schedule or at such other address as the parties may
provide to each other in writing from time to time. Any such
notice mailed to said address shall be effective when deposited
in the United States mail, duly addressed and with first class
postage prepaid.
26. WAIVER OF JURY TRIAL; SUCCESSORS. LESSEE AND LESSOR
EACH IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION OR PROCEEDING
UPON, ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, ANY OTHER
FUNDAMENTAL AGREEMENT, OR THE DEALINGS OR RELATIONSHIP BETWEEN OR
AMONG LESSOR, LESSEE, SELLER OR ANY OTHER PERSON. This Agreement
and all Schedules inure to the benefit of and are binding upon
the permitted successors or assigns of Lessor and Lessee.
27. NO WAIVER; LESSOR APPROVAL. Any failure of Lessor to
require strict performance by Lessee, or any written waiver by
Lessor of any provision hereof, shall not constitute consent or
waiver of any other breach of the same or any other provision
hereof. Neither this Agreement nor any other Fundamental
Agreement shall be binding upon Lessor unless and until executed
by Lessor.
28. CAPTIONS; COUNTERPARTS; LESSOR'S AFFILIATES. The
captions contained in this Agreement are for convenience only and
shall not affect the interpretation of this Agreement. Only one
counterpart of the Schedule shall be marked "Original"
(Original), and all other counterparts thereof shall be marked
as, and shall be duplicates. To the extent that any Schedule
constitutes chattel paper (as such term is defined in the Uniform
Commercial Code in effect in any applicable jurisdiction), no
security interest in such Schedule may be created through the
transfer or possession of any counterpart other than the
Original. Lessee understands and agrees that AT&T Capital
Corporation or any affiliate or subsidiary thereof, may, as
lessor, execute Schedules under this Agreement, in which event
the terms and conditions of the applicable Schedule and this
Agreement as it relates to the lessor under such Schedule shall
be binding upon and shall inure to the benefit of such entity
executing such Schedule as lessor, as well as any successors or
assigns of such entity.
29. CHOICE OF LAW; INTEGRATION; ENTIRE AGREEMENT. EACH LEASE
UNDER THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS (AS
OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NEW JERSEY.
If any provision of this Agreement or such Schedule shall be
prohibited by or invalid under that law, such provision shall be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this Agreement or such Schedule. Lessor
and Lessee consent to the jurisdiction of any local, state or
Federal court located within the State, and waive any objection
relating to improper venue or forum non conveniens to the conduct
of any proceeding in any such court. This Agreement and all other
Fundamental Agreements executed by both Lessor and Lessee
constitute the entire agreement between Lessor and Lessee relating
to the leasing of the Equipment, and supersede all prior agreements
relating thereto, whether written or oral, and may not be amended
or modified except in a writing signed by the parties hereto.
TOASTMASTER, INC. AT&T SYSTEMS LEASING CORPORATION
(Lessee) (Lessor)
By: By:
(Lessee Authorized Signature) (Lessor
Authorized Signature)
(Type/Print Name) (Type/Print Name)
(Title) (Title)
(Date) (Date)
