FORM OF EQUIPMENT LEASE AGREEMENT
This Equipment Lease Agreement (the "Agreement" or the "Lease"), dated
October 29, 1997, is made and entered into by and between Connecticut Bank of
Commerce (the "Lessor"), a Connecticut chartered commercial bank, with its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and Charter Communications International, Inc. ("Lessee"), a Nevada corporation,
with its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
NOW, THEREFORE, in consideration of the mutual conditions and agreements
set forth in this Agreement, and for good and valuable consideration, the
receipt of which is hereby acknowledged, the Lessor and Lessee hereby agree as
follows:
1. EQUIPMENT COVERED BY LEASE. Lessor hereby agrees to lease to
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Lessee and Lessee agrees to lease from Lessor certain items of equipment (the
"Equipment"), upon the terms and conditions specified in this Agreement. A
description of the Equipment is set forth in Exhibit A hereto.
2. RENT. Lessee agrees to pay Lessor, by check or wire transfer, as
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rent for the Equipment during the Lease Term (as defined in Section 3 hereof)
the monthly rent (the "Monthly Rent") set forth on Exhibit B attached hereto.
The Monthly Rent shall be due and payable by the Lessee in arrears on the first
day of each month (each a "Rent Payment Date") commencing on December 1, 1997
and on the first day of each month thereafter until October 28, 2002 when the
remaining and final Monthly Rent payment in the amount indicated on Exhibit B
shall be due and payable. The Monthly Rent shall be payable at the Lessor's
office at the address indicated at the head of this Agreement unless otherwise
directed by Lessor as provided in Section 23 hereof. If a Rent Payment Date
falls on a day other than a Business Day (as hereinafter defined), then the Rent
Payment Date shall be deemed to be the immediately following Business Day. As
used herein, the term "Business Day" shall mean any day other than Saturday or
Sunday or a day on which banks in either the State of Connecticut or the State
of Georgia are required or permitted to close. Lessee shall pay the Lessor
interest upon the amount of any Monthly Rent or other sums not paid by Lessee
within fifteen (15) days of the Rent Payment Date, calculated from the date when
due and owing hereunder until such payment is received by the Lessor computed at
the annual rate of the lesser of (i) the Wall Street Journal Prime Rate plus
ten percent, or (ii) the maximum allowable rate under applicable law (the
"Overdue Interest Rate"). Lessee may prepay all or any portion of the Monthly
Rents at any time, without penalty. In the event of a partial prepayment, the
Monthly Rent shall be adjusted for the remaining months of the Lease Term as
provided in Exhibit B hereof. As security for the Lessee's financial obligations
under this Agreement, including the obligation to pay Monthly Rent, on the Lease
Commencement Date (as defined in Section 3 hereof), the Lessee shall enter into
the Security Agreement, substantially in the form of Exhibit E hereto
(appropriately completed), in favor of the Lessor (the "Security Agreement").
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3. LEASE TERM. The term of the Lease for the Equipment leased
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hereunder (the "Lease Term") shall be for a period of five (5) years and shall
commence on October 29, 1997 (the "Lease Commencement Date") and shall terminate
at 12:00 midnight (New York City Time) on October 28, 2002 (the "Lease
Termination Date"), unless earlier terminated as provided in this Agreement. The
Lease Term shall not be extended without the written permission of the Lessor.
At least ten (10) days prior to the Lease Termination Date or at least ten (10)
days prior to the date of the Lessee's purchase of the Equipment if during the
Lease Term, the Lessee shall notify the Lessor of the Lessee's election to
purchase the Equipment in accordance with Section 20 hereof. In the event that
the Lessee elects not to purchase the Equipment as provided in Section 20
hereof, the Lessee shall deliver the Equipment on or before such date to a
location designated by the Lessor. All costs or expenses associated with the
Lessor's disposition of the Equipment on the Lease Termination Date shall be
borne by the Lessee.
4. DELIVERY AND ACCEPTANCE OF EQUIPMENT. Lessor and Lessee agree
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that the manufacturer or vendor of the Equipment has delivered or will deliver
the Equipment to the location specified by Lessee. Lessor and Lessee agree that
the Lessee shall have full and absolute responsibility for the delivery of the
Equipment to the location designated by the Lessee and that, by the Lessee's
execution of this Agreement, the Lessee has been deemed to have acknowledged
that the Equipment conforms to the requirements of this Agreement and is subject
to the terms and conditions of this Agreement. Such acknowledgment and
acceptance of the Equipment shall not impair, and shall not in any manner be
deemed a waiver of, Lessor's or Lessee's warranty rights for the Equipment. As
long as no Event of Default (as defined in Section 18 hereof) has occurred and
is continuing hereunder, Lessor hereby appoints and authorizes the Lessee to act
as its agent, to accept for Lessor and in Lessor's name, the Equipment from the
manufacturer or vendor upon delivery. THE FAILURE OF THE MANUFACTURER OR VENDOR
TO DELIVER THE EQUIPMENT TO THE LESSEE OR TO THE LOCATION DESIGNATED BY THE
LESSEE SHALL NOT IN ANY WAY AFFECT THE LESSEE'S OBLIGATIONS UNDER THIS
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE OBLIGATION TO THE MONTHLY RENT,
WHICH OBLIGATION IS UNCONDITIONAL AND ABSOLUTE.
5. INSTALLATION AND MAINTENANCE. (a) The Lessee agrees to pay any
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costs incurred in transporting the Equipment to the location or locations
designated by the Lessee and to pay any installation costs. Lessee hereby agrees
to indemnify Lessor and to hold the Lessor harmless from any claims for the
payment of such costs and expenses.
(b) Lessee shall, at its expense, take all actions necessary to
maintain and repair the Equipment to keep it in good operating condition,
ordinary wear and tear excepted. Except as otherwise provided herein, Lessee
agrees to pay all costs, expenses, fees and charges incurred in connection with
the use and operation of the Equipment during the Lease Term, including repairs,
maintenance, storage and service.
6. FEES AND TAXES. (a) Lessee agrees to pay any and all taxes,
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assessments, licenses, title and registration fees, including all sales, use and
personal property taxes together with any penalties, fines or interest accruing
as a result of Lessee's failure to timely comply with its obligations hereunder,
which are assessed, levied or imposed by any governmental or taxing authority
against Lessor with respect to any item of Equipment, or the purchase,
acquisition, ownership, delivery, lease, possession, use, operation, control or
return of the Equipment, which accrue during the Lease Term, excluding, however,
any taxes measured by Lessor's net income.
(b) Unless and until Lessor notifies Lessee to the contrary, the
foregoing obligations of Lessee shall include preparation and submission of all
filings to the applicable taxing authorities whether such filings would
otherwise be the obligation of the Lessor or Lessee and as long as no Event of
Default has occurred and is continuing hereunder, Lessor hereby appoints Lessee
its agent and attorney-in-fact for the purpose making such filings on behalf of
Lessor. Lessee agrees to provide copies of such filings to Lessor along with
evidence of payment. Lessor agrees to cooperate fully with Lessee by executing
any documents prepared by Lessee for filing and forwarding promptly to Lessee
any assessments, bills, invoices or other correspondence received in connection
therewith. In the event that Lessor elects to pay personal property taxes
directly to a levying authority, Lessor shall submit to Lessee a copy of any
personal property tax statements and the receipt or other document evidencing
payment and Lessee agrees to promptly reimburse Lessor for the full amount of
such taxes paid by Lessor.
(c) Lessee shall not be obligated to pay any amount under this Section
6 so long as it shall be contesting the validity or the amount thereof by
appropriate proceedings. Lessee agrees to indemnify, hold harmless and defend
Lessor against any loss, claim or expense resulting from such nonpayment or
contest. The obligations and liabilities of Lessee under this Section 6 accruing
during the Lease Term shall continue notwithstanding the termination of this
Agreement.
(d) Nothing in this Section 6 shall be deemed to obligate Lessee to
pay: (i) any taxes, fees, assessments or other charges which have been included
in the cost of the Equipment and reflected in Exhibit B hereof; (ii) any taxes,
fees or other charges imposed, based on or measured by the income of the Lessor
or any taxes, fees or charges imposed in lieu of such taxes, fees or charges; or
(iii) any business privilege, franchise or other similar taxes or fees assessed
against Lessor.
7. LESSOR'S WARRANTIES. (a) LESSOR MAKES NO EXPRESS OR IMPLIED
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WARRANTIES OR REPRESENTATION AS TO ANY MATTER WHATSOEVER INCLUDING WITHOUT
LIMITATION THE CONDITION, SELECTION, QUALITY, SUITABILITY OR OPERATION, THE
MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY EQUIPMENT, AND
LESSOR SHALL NOT BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT
OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE EQUIPMENT.
(b) Lessor hereby transfers and assigns to Lessee during Lease Term all
of its right and interest in any manufacturer's warranty with respect to the
Equipment and to any and all amounts which may be collected thereunder, and
agrees to execute any documents reasonably necessary to effect such transfer and
assignment. To the extent that any rights of Lessor with respect to the
manufacturer's warranty applicable to any item of Equipment may not be assigned
to Lessee, Lessor shall use reasonable efforts to enforce such rights against
the manufacturer on behalf of Lessee.
8. LESSEE'S WARRANTIES. Lessee hereby represents and warrants that as
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of the date of this Agreement and as of the Lease Commencement Date: (a) Lessee
is a Nevada corporation validly existing and in good standing under the laws of
the State of Nevada, with full power to enter into this Agreement and to pay
rent and perform its obligations under this Agreement; (b) this Agreement has
been duly authorized, executed and delivered by Lessee, is enforceable in
accordance with its terms and Lessee's execution, delivery and performance
hereunder does not and will not contravene the provisions of any contract or
other instrument by which it is bound; (c) no approval is required of any public
regulatory body with respect to the entering into or performance of this
Agreement; (d) there are no suits or proceedings pending in any court or any
governmental agency against or affecting Lessee which if decided against Lessee
would materially impair Lessee's ability to perform any of its obligations under
this Agreement; and (e) there has been no material adverse change to Lessee's
financial condition from that reflected in the financial statements of the
Lessee furnished to the Lessor on or immediately prior to the Lease Commencement
Date (the "Lessee Financial Statements").
9. OWNERSHIP AND INSPECTION. Lessor has an undivided senior ownership
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interest in the pool of Equipment described on Exhibit A hereto (the "Senior
Ownership Intererst") represented by a Senior Ownership Certificate
substantially in the form of Exhibit A-1. Lessee has an undivided residual
junior subordinated ownership interest in the Equipment described on Exhibit A
hereto (the "Residual Ownership Interest") represented by a Residual Ownership
Certificate substantially in the form of Exhibit A-2 hereto, which has been
pledged and assigned to the Lessor as security for the Lessee's payment
obligations under this Agreement. Lessee hereby acknowledges and agrees that it
has no title to the Lessor's Senior Ownership Interest in the Equipment, and by
the execution of this Agreement it does not have or obtain, and by payment or
performance under this Agreement (except as provided in Section 20 hereof) it
does not and will not obtain title to the Senior Ownership Interest in the
Equipment, nor any property right or other interest in the Equipment except
solely as Lessee hereunder and subject to the terms of this Agreement. Lessee
agrees that upon Lessor's request it will execute and deliver to Lessor or its
assignee, if any, such Uniform Commercial Code financing statements or other
similar or substitute documents as are necessary to protect Lessor's or its
assignee's right, title and interest in and to the Equipment as represented by
the Senior Ownership Certificate and Lessor's security interest in and lien on
Lessee's Residual Ownership Interest in the Equipment as represented by the
Residual Ownership Certificate. Lessee agrees that upon reasonable prior written
notice Lessor and Lessor's agents shall have the right to inspect the Equipment.
10. QUIET ENJOYMENT. Lessor hereby represents and warrants that as of
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the Lease Commencement Date: (a) Lessor has good title to the Senior Ownership
Certificate in the Equipment; (b) Lessor has the full right and authority to
enter into this Agreement on the terms stated herein; and (c) so long as no
Event of Default has occurred and is continuing hereunder, Lessee shall have the
peaceful and quiet use and enjoyment of the Equipment against any acts or
interruptions by Lessor or any person claiming by, through or under Lessor, and
Lessor agrees to cause to be discharged any lien or encumbrance impairing such
quiet enjoyment if such lien or encumbrance was created by Lessor or anyone
claiming by, through or under Lessor and not arising due to the failure of
Lessee or any sublessee to perform its obligations hereunder.
11. USE OF EQUIPMENT. (a) During the Lease Term, Lessee warrants and
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agrees that the Equipment will be operated and otherwise be in compliance with
all applicable statutes, regulations and orders of any governmental body having
power to regulate the Equipment, provided, however, that Lessee may, by
appropriate proceedings, contest the application of any such rule, regulation or
order in any reasonable manner which will not adversely affect the title of
Lessor to the Equipment or subject the Equipment to forfeiture or sale. Lessor
agrees to join in any proceedings in the event that such joinder is necessary
for the proper prosecution of any such proceedings and Lessee agrees to
indemnify Lessor against all reasonable costs and expenses incurred by Lessor in
connection with Lessor's joinder in such proceedings.
(b) Lessee agrees to give prior written notice to Lessor of any change
in the location of the Equipment from that set forth on Exhibit C. Lessee agrees
to assume responsibility for any and all costs of relocation or reinstallation.
12. LIENS. During the Lease Term, Lessee agrees that it will not
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create, incur, or assume any mortgage, security interest, lien or encumbrance on
the Equipment except: (a) the respective rights of Lessor and its assignee, if
any, and Lessee as provided in this Agreement; (b) liens for taxes, assessments,
or state, local, federal or other governmental charges or levies not yet due or
delinquent or not yet subject to penalty for nonpayment; (c) liens which have
been bonded or are being contested by Lessee as to the existence, amount,
applicability, extent or validity thereof by appropriate proceeding which shall
operate to prevent the collection or satisfaction of the lien contested; (d)
inchoate landlord's, materialman's, mechanic's, ▇▇▇▇▇▇▇'▇, repairman's,
employee's or other similar liens arising in the ordinary course of business and
not delinquent; and (e) liens arising out of judgments against Lessee with
respect to which an appeal or proceeding for review is being prosecuted and with
respect to which there has been secured a stay of execution pending such appeal
or proceeding for review.
13. ALTERATIONS AND MODIFICATIONS. (a) Lessee shall have the right
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to make or have made alterations or modifications to any item of Equipment
provided that no such alteration or modification materially reduces the value or
impairs the operation of such Equipment. Any part, attachment or accessory
constituting a physical part of the Equipment whether attached to the Equipment
or made a part thereof as a result of an alteration or modification which cannot
be detached without causing material damage to the Equipment, shall be deemed to
be an accession to the Equipment and shall thereafter be deemed Equipment for
purposes of this Agreement, with title thereto in Lessor.
(b) Lessee shall have the right at any time to connect additional
equipment to the Equipment and whether such equipment is owned by Lessee or
leased from a third party, provided that the value of the Equipment shall not be
materially reduced by such connection.
14. LOSS OR DAMAGE. (a) In the event of any loss, seizure,
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condemnation or destruction of the Equipment or damage to the Equipment which
cannot be repaired by Lessee, Lessee shall immediately notify Lessor in writing.
Within thirty (30) days of such notice, during which time Lessee shall continue
to pay Monthly Rent, Lessee shall, at the option of Lessor, either: (i) replace
the Equipment with equipment of the same type and manufacture in good repair,
condition and working order, transfer title to such equipment to Lessor free and
clear of all liens, claims and encumbrances, whereupon such equipment shall be
deemed Equipment for purposes of this Agreement, or (ii) pay to Lessor an amount
equal to the present value of the aggregate of the remaining unpaid Monthly
Rents plus any other costs actually incurred by Lessor. The present value shall
be determined by discounting the aggregate of the remaining unpaid Monthly Rents
to the date of payment by Lessee at the rate of eight and one-half percent
(8.5%) per annum. Any insurance or condemnation proceeds received by Lessor
shall be credited to the obligation of Lessee under this Section 14 and the
remainder of such proceeds, if any, shall be paid to Lessee by Lessor in full
compensation for the loss of the leasehold interest in the Equipment by Lessee.
(b) Lessee acknowledges and agrees that ANY DAMAGE TO OR LOSS,
DESTRUCTION OR UNFITNESS OF, OR DEFECT IN THE EQUIPMENT, OR THE INABILITY OF
LESSEE TO USE THE EQUIPMENT FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT
LIMITED TO, THE FAILURE OF THE MANUFACTURER OR VENDOR TO DELIVER THE EQUIPMENT
OR TO DELIVER THE EQUIPMENT IN MERCHANTABLE CONDITION, SHALL NOT (i) GIVE RISE
TO ANY DEFENSE, COUNTERCLAIM OR RIGHT OF SETOFF AGAINST LESSOR, OR (ii) PERMIT
ANY ABATEMENT OR RECOUPMENT OR ANY REDUCTION OF MONTHLY RENT, OR (iii) RELIEVE
LESSEE OF THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING,
BUT NOT LIMITED TO, ITS OBLIGATIONS TO PAY THE FULL AMOUNT OF MONTHLY RENT,
WHICH OBLIGATIONS ARE ABSOLUTE AND UNCONDITIONAL, unless and until this
Agreement is terminated with respect to such Equipment in accordance with the
terms hereof. Any claim that Lessee may have which arise from a defect in or
deficiency of the Equipment shall be brought solely against the manufacturer or
supplier of the equipment and Lessee shall, notwithstanding any such claim,
continue to pay Lessor all amounts due and to become due under this Lease
Agreement.
15. INSURANCE. Lessee shall keep the Equipment insured against all
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risks of loss or damage from every cause whatsoever occurring during the Lease
Term, for an amount not less than the higher of (i) the orderly liquidation
value of the Equipment as set forth in the Equipment Appraisal attached to this
Agreement as Exhibit F or (ii) the present value (using 8.5% per annum as the
discount rate) of the unpaid Monthly Rents for the balance of the Lease Term.
Lessee shall also carry public liability insurance, both personal and property
damage, covering the Equipment, and Lessee shall be liable for any deductible
portions of all required insurance. All insurance required by this Section 15
shall name Lessor as additional insured and loss payee. Such insurance shall
also be with such insurers and be in such forms and amounts as are reasonably
satisfactory to Lessor.
16. NET LEASE. This Agreement is a net lease and Lessee agrees that
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its obligation to pay rent and other amounts due hereunder shall be absolute and
unconditional, and except as expressly provided herein, shall not terminate nor
be subject to or affected by any abatement, reduction, set-off, defense,
counterclaim or deduction. It is the intent of Lessor and Lessee that the
Monthly Rent and other amounts payable under this Agreement shall continue to be
payable in all events in the manner and at the time as set forth in this
Agreement.
17. INDEMNIFICATION. (a) Lessee hereby agrees to indemnify, defend
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and hold harmless Lessor, its agents, employees, successors and assigns (an
"Indemnified Party") from and against any and all claims, suits, proceedings,
costs, expenses, damages and liabilities whatsoever arising out of or in
connection with the manufacture, ordering, selection, specifications,
availability, delivery, titling, registration, rejection, installation,
possession, maintenance, ownership, use, leasing, operation or return of the
Equipment, including, but not limited to, any claim or demand based upon any
STRICT OR ABSOLUTE LIABILITY IN TORT and upon any infringement or alleged
infringement of any patent, trademark, trade secret, license, copyright or
otherwise, except for any such claims arising out of the negligence, gross
negligence or willful misconduct of any Indemnified Party. All costs and
expenses incurred by an Indemnified Party in connection with any of the
foregoing, including, but not limited to, legal fees, court costs and expenses,
shall be paid to the Indemnified Party upon demand. Any claim that Lessee may
have which arise from a defect in or deficiency of the Equipment shall be
brought solely against the manufacturer or supplier of the Equipment and Lessee
shall, notwithstanding any such claim, continue to pay Lessor all amounts due or
to become due under this Agreement. The obligations and indemnities of Lessee
under this Section 17 shall survive the expiration or other termination of this
Agreement.
(b) To the extent that an Indemnified Party receives any payments from
Lessee pursuant to the provisions of this Section 17, Lessee shall be subrogated
to the Indemnified Party's rights with respect to the claim giving rise to such
indemnity.
18. DEFAULT. The occurrence of any of the following events shall
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constitute an event of default ("Event of Default") under this Agreement:
(a) Lessee fails to pay any Monthly Rent within 15 days of the Rent
Payment Date, whether upon demand or otherwise, and such failure continues for a
period of ten (10) consecutive days after written notice to the Lessee; or
(b) Lessee fails to pay any other sum required hereunder, and such
failure continues for a period of ten (10) days following written notice from
Lessor; or
(c) Lessee fails to maintain the insurance as required in Section 15
hereof, and such failure continues for a period of ten (10) consecutive days
following written notice from the Lessor; or
(d) Any representation or warranty made by Lessee in this Agreement or
in any other document, agreement or instrument executed or delivered pursuant
hereto or in connection herewith, including, but not limited to, the Lessee
Financial Statements, shall prove to be untrue in any material respect as of the
date on which made; or
(e) Lessee violates or fails to perform any other term, covenant or
condition of this Agreement or any other document, agreement or instrument
executed pursuant hereto or in connection herewith, which failure is not cured
within thirty (30) days after written notice from Lessor; or
(f) There shall occur under any other lease, contract or agreement
between Lessee and Lessor or between an affiliate of the Lessee and the Lessor,
including, but not limited to, an uncured default with respect to a material
financial obligation or an "event of default" (as defined in such other
agreement) by Lessee or an affiliate of Lessee; or
(g) Lessee shall: (i) file a voluntary petition in bankruptcy or file a
voluntary petition or an answer or otherwise commence any action or proceeding
seeking reorganization, arrangement or readjustment of the Lessee's debts or for
any other relief under the Federal Bankruptcy Code, as amended, or under any
other bankruptcy or insolvency act or law, state or federal, now or hereafter
existing, or consent to, approve of or acquiesce in, any such petition, action
or proceeding; (ii) apply for or acquiesce in the appointment of a receiver,
assignee, liquidator, sequestrator, custodian, trustee or similar officer for
the Lessee's property; or (iii) make an assignment for the benefit of creditors;
or
(h) An involuntary petition shall be filed or an action or proceeding
otherwise commenced seeking reorganization, arrangement or readjustment of
Lessee's debts or for any other relief under the Federal Bankruptcy Code, as
amended, or under any other bankruptcy or insolvency act or law, state or
federal, now or hereafter existing, and such action is not dismissed within 30
days of its commencement; or
(i) A receiver, assignee, liquidator, sequestrator, custodian, trustee
or similar officer for the Lessee or for all or any material part of Lessee's
property shall be appointed involuntarily; or a warrant of attachment, execution
or similar process shall be issued against any material part of the property of
the Lessee; or
(j) There occurs any material adverse change in the Lessee's property
or financial condition; or
(k) Lessee sells all or a material portion of its assets, merges into,
or combines with, another entity where the resulting entity is not deemed
acceptable from a financial standpoint by the Lessor in its reasonable
discretion, or Lessee ceases to exist or otherwise ceases doing business as a
going concern.
No waiver by Lessor of any Event of Default shall constitute a waiver of any
other Event of Default or of the same Event of Default at any other time.
19. REMEDIES. (a) Upon the occurrence of an Event of Default and
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while such Event of Default is continuing, Lessor, at its sole option, upon its
declaration, and to the extent not inconsistent with applicable law, may
exercise any one or more of the following remedies:
(i) Lessor may terminate this Agreement whereupon all rights of Lessee
to the use of the Equipment shall cease.
(ii) Whether or not this Agreement is terminated, Lessor may cause
Lessee, at the sole cost and expense of Lessee, to return any or all of the
Equipment promptly to the possession of Lessor in good repair and working order,
reasonable wear and tear excepted. Lessor, at its sole option and through its
employees, agents or contractors, may peaceably enter upon the premises where
the Equipment is located and take immediate possession of and remove the
Equipment, all without liability to Lessor, its employees, agents or contractors
for such entry. LESSEE HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHTS TO NOTICE AND/OR HEARING PRIOR TO THE REPOSSESSION OR
REPLEVIN OF THE EQUIPMENT BY LESSOR, ITS EMPLOYEES, AGENTS OR CONTRACTORS.
(iii) Lessor may proceed by court action to enforce performance by
Lessee of this Agreement or pursue any other remedy Lessor may have hereunder,
at law, in equity or under any applicable statute, including, without
limitation, the rights and remedies of a secured party under the Uniform
Commercial Code of the State of Connecticut or any other applicable jurisdiction
and recover such other actual damages as may be incurred by Lessor.
(iv) Lessor may recover from Lessee damages, not as a penalty but as
liquidated damages for loss of bargain, and without limitation of any other
amounts due from Lessee under this Agreement, in an amount equal to the sum of:
(1) any unpaid Monthly Rents due and payable for periods prior to the
repossession of the Equipment by Lessor, plus any interest due thereon; (2) the
present value of all future Monthly Rents required to be paid over the remaining
Lease Term after repossession of the Equipment by Lessor determined by
discounting such future Monthly Rents to the date of payment at a rate of eight
and one-half percent (8.5%) per annum, less the then prevailing rental value of
the Equipment; and (3) all costs and expenses incurred in searching for, taking,
removing, storing, repairing, restoring, refurbishing and leasing or selling
such Equipment.
(v) With respect to Equipment returned to or repossessed by Lessor,
Lessor may sell such Equipment at a public or private sale for cash or credit or
Lessor may re-lease such Equipment free and clear of any rights of Lessee under
this Agreement (other than Lessee's Residual Ownership Interest).
(vi) Lessee shall pay all costs and expenses, including, but not
limited to, legal fees and expenses, incurred by Lessor arising out of or in
connection with any Event of Default. Lessee shall also be liable for any
amounts due and payable to Lessor under any other provision of this Agreement.
(b) No failure on the part of Lessor to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver thereof. No
single or partial exercise of any right or remedy hereunder shall preclude any
other or further exercise thereof or the exercise of any other right or remedy.
(c) Each right and remedy provided hereunder is cumulative and not
exclusive of any other right or remedy, including, without limitation, any right
or remedy available to Lessor at law, by statute or in equity.
20. PURCHASE OPTION. (a) During the Lease Term or at the Lease
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Termination Date, and provided that no Event of Default has occurred and is
continuing hereunder, the Lessee may elect to purchase the Lessor's Senior
Ownership Interest in the Equipment at the purchase price (the "Purchase Price")
as defined in Section 20(b) hereof. If Lessee desires to exercise its option
under this Section 20, Lessee shall notify Lessor in writing at least ten (10)
days prior to the date of the purchase of the Lessor's Senior Ownership Interest
in the Equipment. Upon payment of the Purchase Price, and of all Monthly Rents
and other amounts then owing under this Agreement, Lessor shall deliver, assign
and sell to the Lessee, without recourse and without any representation or
warranty, other than warranty of Lessor's title, free of any and all liens
resulting from the acts of Lessor, all of the Lessor's right, title and interest
in and to its Senior Ownership Interest in the Equipment as represented by the
Senior Ownership Certificate. Lessor will also release its lien on and security
interest in the Lessee's Residual Ownership Interest in the Equipment as
represented by the Residual Ownership Certificate. In addition, Lessor shall
release its lien on and security interest in all other property of Lessee
serving as collateral for Lessee's obligations hereunder (exclusive of Lessee's
property securing or serving as collateral for other obligations of the Lessee
to the Lessor).
(b) The Purchase Price for the Senior Ownership Interest in the
Equipment shall be equal to the sum of: (i) the present value of all future
Monthly Rents required to be paid Lessor over the remaining Lease Term
(determined by discounting such future Monthly Rents to the date of payment at a
rate of eight and one-half percent (8.5%) per annum), plus (ii) $100. In
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addition, the Lessee shall be responsible for any sales, transfer or other
similar taxes or assessments in connection with the Lessor's sale and transfer
to the Lessee of the Senior Ownership Interest in the Equipment.
21. ASSIGNMENT; SUBLEASE. (a) Lessor may sell, assign or therwise
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transfer all or any part of its right, title and interest in and to the
Equipment or in this Agreement or any related agreements, including the Security
Agreement, to a third-party assignee, subject to the terms and conditions of
this Agreement, including, but not limited to, the right to use or to purchase
the Senior Ownership Interest in the Equipment by Lessee. Such assignee shall
assume all of the rights and obligations of Lessor under this Agreement, but
Lessor shall not be released therefrom absent a release executed by the Lessee.
Thereafter, all references to Lessor herein shall mean such assignee.
Notwithstanding any sale, assignment or transfer, the obligations of Lessee
hereunder shall remain absolute and unconditional as set forth in this
Agreement.
(b) Lessor may also, to the extent of its interest therein, pledge,
mortgage or grant a security interest in the Equipment and assign as collateral,
subject to the terms and conditions hereof, including, but not limited to, the
right to the use of the Equipment by Lessee. Lessor, by reason of such pledge,
mortgage or grant of security interest or collateral assignment, shall not be
relieved of any of its obligations hereunder, which shall remain absolute and
unconditional as set forth herein. Upon the written request of Lessor, Lessee
shall acknowledge such obligations to the pledgee, mortgagee, lienholder or
assignee.
(c) LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, SUBLEASE, CONVEY OR PLEDGE
ANY OF ITS INTEREST IN THIS AGREEMENT OR ANY OF THE EQUIPMENT WITHOUT THE PRIOR
WRITTEN CONSENT OF LESSOR. ANY SUCH SALE, TRANSFER, ASSIGNMENT, SUBLEASE,
CONVEYANCE OR PLEDGE, WHETHER BY OPERATION OF LAW OR OTHERWISE, WITHOUT THE
PRIOR WRITTEN CONSENT OF LESSOR, SHALL BE VOID.
22. EQUIPMENT ACQUISITION FEE; CLOSING COSTS. On the Lease
--------------------------------------------
Commencement Date, the Lessee shall pay the Lessor an Equipment Acquisition Fee
in the amount set forth on Exhibit D hereof. In addition, the Lessee shall pay
the legal fees and reasonable expenses of Lessor's counsel in connection with
the preparation of this Agreement and the consummation of the transactions
contemplated herein.
23. NOTICES. Any notices or other communications permitted or required
-------
hereunder shall be in writing and shall be deemed conclusively to have been duly
given if personally delivered, sent by overnight courier, or mailed by certified
mail, postage prepaid, and return receipt requested, if to the Lessor or the
Lessee, addressed to the applicable party at the address set forth at the head
of this Agreement, or to such other address as a party may have designated in
writing to the other party.
24. COUNTERPARTS; FACSIMILE EXECUTION. This Agreement may be executed
---------------------------------
in several counterparts each of which shall constitute an original, but all of
which together shall constitute one instrument notwithstanding that all parties
are not signatories to the same counterparts. Delivery of an executed
counterpart of this Agreement by facsimile shall be equally effective as
delivery of an original executed counterpart of this Agreement. Any party
delivering an executed counterpart of this Agreement by facsimile also shall
deliver an original executed counterpart of this Agreement, but failure to
deliver an original executed counterpart shall not affect the validity,
enforceability and binding effect of this Agreement.
25. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
----------------
and understanding of the parties with respect to the matters and transaction
contemplated by this Agreement and supersedes any prior agreement and
understandings with respect to these matters and transactions.
26. FINANCIAL REPORTS AND INFORMATION. Lessee agrees to provide Lessor
---------------------------------
with all financial information concerning Lessee and Lessee's business as Lessor
may reasonably request, and Lessor agrees not to divulge or disseminate
such information to any third party without Lessee's prior written consent.
27. GOVERNING LAW AND AMENDMENTS. This Agreement is to be governed by,
----------------------------
and construed in accordance with, the laws of the State of Connecticut. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
28. EXHIBITS AND SCHEDULES. The Exhibits and Schedules to this
------------------------
Agreement are hereby incorporated and made a part hereof and are an integral
part of this Agreement.
29. SEVERABILITY OF PROVISIONS. If any one or more of the covenants,
--------------------------
agreements, provisions or terms of this Agreement shall be held invalid for any
reason whatsoever, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements provisions or terms of
this Agreement and shall in no way affect the validity or enforceability of the
other provisions of this Agreement.
IN WITNESS WHEREOF, the Lessor and the Lessee have duly executed and
delivered this Agreement as of the date first above written.
LESSEE:
CHARTER COMMUNICATIONS
INTERNATIONAL, INC.
By:__________________________
Name:
Title:
LESSOR:
CONNECTICUT BANK OF COMMERCE
By:__________________________
Name:
Title:
EXHIBIT INDEX
A - DESCRIPTION OF EQUIPMENT
A-1 - FORM OF SENIOR OWNERSHIP CERTIFICATE EVIDENCING LESSOR'S SENIOR
OWNERSHIP INTEREST IN THE EQUIPMENT
A-2 - FORM OF RESIDUAL OWNERSHIP CERTIFICATE EVIDENCING LESSESS'S RESIDUAL
SUBORDINATED OWNERSHIP INTEREST IN THE EQUIPMENT
B - SCHEDULE OF MONTHLY RENT
C - LOCATION OF EQUIPMENT
D - EQUIPMENT ACQUISITION FEE
E - FORM OF SECURITY AGREEMENT (SEE ATTACHED)
F - APPRAISAL OF THE EQUIPMENT
