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LASALLE NATIONAL LEASING CORPORATION
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MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT (this "Lease") is made as of the 14th day of
December, 2000, by and between LASALLE NATIONAL LEASING CORPORATION,
its successors and assigns ("Lessor"), and HS GATHERING, L.L.C., its successors
and permitted assigns ("Lessee").
The parties agree that Lessee shall lease from Lessor the property (the
"Equipment") described in the Equipment Schedule(s) to be executed pursuant
hereto (collectively, the "Equipment Schedule"), subject to the terms set forth
herein, in the Riders annexed hereto and in the Equipment Schedule. Certain
definitions and construction of certain of the terms used herein are provided in
Section 21 hereof. Each Equipment Schedule shall incorporate by reference the
terms and conditions of this Lease. Each Equipment Schedule, incorporating by
reference the terms and conditions of this Lease, shall constitute a separate
instrument of lease.
1. TERM. The term of lease with respect to any item of the Equipment shall
consist of the term set forth in the Equipment Schedule relating thereto;
provided, however, that this Lease shall be effective from and after the date of
execution hereof.
2. RENT. Lessee shall pay Lessor the rental installments in the aggregate
amounts specified in the Equipment Schedule, without prior notice or demand, and
all other amounts payable pursuant to this Lease (such installments and other
amounts, the "Rent"). Each Equipment Schedule constitutes a non-cancelable net
lease, and Lessee's obligation to pay Rent, and otherwise to perform its
obligations under this Lease, each such Equipment Schedule and all of the other
documents and agreements entered in connection herewith (collectively, the
"Lease Documents"), are and shall be absolute and unconditional and shall not be
affected by any right of setoff, counterclaim, recoupment, deduction, defense or
other right which Lessee may have against Lessor, the manufacturer or vendor of
the Equipment (the "Suppliers"), or anyone else, for any reason whatsoever.
Rental installments are payable as and when specified in the Equipment Schedule
by mailing the same to Lessor at its address specified pursuant to this Lease,
or by such other method as may from time to time be reasonably directed by
Lessor or its assignee in writing; and payments of Rent shall be effective upon
receipt. Timeliness of Lessee's payment and its other performance under the
Lease Documents is of the essence. If any Rent is not paid within five (5) days
of the due date, Lessor may collect, and Lessee agrees to pay, a charge (the
"Late Charge") calculated as the product of the late charge rate specified in
the Equipment Schedule (the "Late Charge Rate") and the amount in arrears for
the period such amount remains unpaid after the original due date.
3. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents and warrants
that: (a) Lessee is a limited liability company duly organized, validly existing
under the laws of the jurisdiction specified below the signature of Lessee. (b)
The execution, delivery and performance of the Lease Documents: (1) have been
duly authorized by all necessary legal action on the part of Lessee; (2) do not
require the approval of any member, trustee or holder of any obligations of
Lessee except such as have been duly obtained; and (3) do not and will not
contravene any law, governmental rule, regulation or order now binding on
Lessee, or the articles of organization of Lessee, or contravene the provisions
of, or constitute a default under, or result in the creation of any lien or
encumbrance upon the property of Lessee under, any indenture, mortgage, contract
or other agreement to which Lessee is a party or by which it or its property is
bound. (c) Each of the Lease Documents, when entered into, will constitute
legal, valid and binding obligations of Lessee enforceable against Lessee, in
accordance with the terms thereof. (d) There are no pending actions or
proceedings to which Lessee is a party, and there are no other pending or
threatened actions or proceedings of which Lessee has knowledge, before any
court, arbitrator or administrative agency, which, either individually or in the
aggregate, would have a Material Adverse Effect. As used herein, "Material
Adverse Effect" shall mean (1) a materially adverse effect on the business,
condition (financial or otherwise), operations, performance or properties of
Lessee, or (2) a material impairment of the ability of Lessee to perform its
obligations under or to remain in compliance with the Lease Documents. Further,
Lessee is not in default under any obligation for borrowed money, for the
deferred purchase price of property or any lease agreement which, either
individually or in the aggregate, would have the same such effect. (e) Under the
laws of the state(s) in which the Equipment is to be located, the Equipment
consists solely of personal property and not fixtures. (f) The financial
statements of HS Resources, Inc. (the "Guarantor") (copies of which have been
furnished to Lessor) have been prepared in accordance with generally accepted
accounting principles consistently applied ("GAAP"), and fairly present Lessee's
financial condition and the results of its operations as of the date of and for
the
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period covered by such statements, and since the date of such statements there
has been no material adverse change in such conditions or operations. (g)
Lessee's name, Federal Employer Identification Number and Organizational Number
specified below the signature of Lessee are true and correct, and the address
stated below the signature of Lessee is the chief place of business and chief
executive office of Lessee. (h) Lessee has good and marketable title to the
Equipment conveyed to Lessor pursuant to an Equipment Xxxx of Sale and has
pursuant thereto transferred its interest in such Equipment free and clear of
any and all encumbrances, liens, charges or defects.
4. COVENANTS. Lessee covenants and agrees as follows: (a) Lessee will
furnish, or cause to be furnished, Lessor (1) within one hundred twenty (120)
days after the end of each fiscal year of Guarantor, a balance sheet of
Guarantor as at the end of such year, and the related statement of income and
statement of cash flows of Guarantor for such fiscal year, prepared in
accordance with GAAP, all in reasonable detail and certified by independent
certified public accountants of recognized standing selected by Lessee and/or
Guarantor and reasonably acceptable to Lessor; (2) within one hundred twenty
(120) days after the end of each fiscal year of Lessee, a balance sheet of
Lessee as at the end of such year, and the related statement of income and
statement of cash flows of Lessee for such fiscal year, prepared in accordance
with GAAP; (3) within sixty (60) days after the end of each quarter, (A) a
balance sheet of Guarantor as at the end of such quarter, and the related
statement of income and statement of cash flows of Guarantor for such quarter,
prepared in accordance with GAAP, and (B) a balance sheet of Lessee as of the
end of such quarter, and the related statement of income and statement of cash
flows of Lessee for such quarter or any such other financial data which has been
prepared in accordance with GAAP on behalf of or by Lessee which reasonably
approximates the same; and (4) within thirty (30) days after the date on which
they are filed, all regular periodic reports, forms and other filings required
to be made by Lessee and/or Guarantor to the Securities and Exchange Commission,
if any. (b) Lessee will promptly execute and deliver to Lessor such further
documents, instruments and assurances and take such further action as Lessor
from time to time may reasonably request in order to carry out the intent and
purpose of this Lease and to establish and protect the rights and remedies
created or intended to be created in favor of Lessor under the Lease Documents
(including, without limitation, such UCC financing statements as reasonably may
be required by Lessor in connection with any relocation of the Equipment in
accordance with the terms hereof). (c) Lessee shall provide written notice to
Lessor: (1) not less than thirty (30) days prior to any contemplated change in
the name, the jurisdiction of organization, or address of the chief executive
office, of Lessee; (2) promptly upon the occurrence of any Event of Default (as
hereinafter defined) or event which, with the lapse of time or the giving of
notice, or both, would become an Event of Default (a "Default"); and (3)
promptly upon Lessee becoming aware of any alleged violation of applicable law
relating to the Equipment or this Lease.
5. CONDITIONS PRECEDENT. Lessor's obligations under each Equipment
Schedule, including its obligation to purchase and lease any Equipment to be
leased thereunder, are conditioned upon Lessor's determination that all of the
following have been satisfied: (a) Lessor having received the following, in form
and substance satisfactory to Lessor: (1) evidence as to due compliance with the
insurance provisions hereof; (2) UCC financing statements and all other filings
and recordings as required by Lessor; (3) a certificate of Lessee's Secretary
certifying: (i) resolutions of Lessee's Board of Directors duly authorizing the
leasing of the Equipment hereunder and the execution, delivery and performance
of this Lease and the Equipment Schedule and all related instruments and
documents, and (ii) the incumbency and signature of the officers of Lessee
authorized to execute such documents; (4) the only manually executed original of
the Equipment Schedule and all other Lease Documents; (5) all purchase documents
pertaining to the Equipment (collectively, the "Supply Contract"); (6) such
other documents, agreements, instruments, certificates, opinions and assurances,
as Lessor reasonably may require; and (7) an opinion of counsel for Lessee as to
each of the matters set forth in sub-parts (a) through (d) of Section 3 hereof.
(b) All representations and warranties provided in favor of Lessor in any of the
Lease Documents shall be true and correct on the effective date of such
Equipment Schedule with the same effect as though made as of such date (Lessee's
execution and delivery of the Equipment Schedule shall constitute an
acknowledgment of the same). (c) There shall be no Default or Event of Default
under the Equipment Schedule or any other Lease Documents. The Equipment shall
have been delivered to and accepted by Lessee, and shall be in the condition and
repair required hereby; and on the effective date of the Equipment Schedule,
Lessor shall have received good title to the Equipment to be leased thereunder,
and shall have retained a first priority perfected security interest in such
Equipment, free and clear of any lien, claim or encumbrance of any kind.
6. DELIVERY; INSPECTION AND ACCEPTANCE BY LESSEE. Upon delivery, Lessee
shall inspect and, to the extent the Equipment conforms to the condition
required by the applicable Supply Contract, accept the Equipment and shall
execute and deliver to Lessor an Equipment Schedule containing a complete
description of the item of Equipment accepted; whereupon, as between Lessor and
Lessee, the same shall be deemed to have been finally accepted by Lessee
pursuant to this Lease. All expenses incurred in connection with Lessor's
purchase of the Equipment (including shipment, delivery and installation) shall
be the responsibility of Lessee and shall be paid upon demand. If Lessee shall,
for reasonable cause, refuse to accept delivery of any item of the Equipment,
Lessee will be assigned all rights and shall assume all obligations as purchaser
of the Equipment.
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7. USE AND MAINTENANCE. (a) Lessee shall: (1) use the Equipment solely in
the Continental United States and in the conduct of its business, for the
purpose for which the Equipment was designed, in a careful and proper manner,
and shall not permanently discontinue use of the Equipment; (2) operate,
maintain, service and repair the Equipment, and maintain all records and other
materials relating thereto, (i) in accordance and consistent with (A) the
Supplier's recommendations and all maintenance and operating manuals or service
agreements, whenever furnished or entered into, including any subsequent
amendments or replacements thereof, issued by the Supplier or service provider,
(B) the requirements of all applicable insurance policies, (C) the Supply
Contract, so as to preserve all of Lessee's and Lessor's rights thereunder,
including all rights to any warranties, indemnities or other rights or remedies,
(D) all applicable laws, and (E) the prudent practice of other similar companies
in the same business as Lessee, but in any event, to no lesser standard than
that employed by Lessee for comparable equipment owned or leased by it; (ii)
without limiting the foregoing, so as to cause the Equipment to be in good
repair and operating condition and in at least the same condition as when
delivered to Lessee hereunder, except for ordinary wear and tear resulting
despite Lessee's full compliance with the terms hereof; and (iii) shall not
discriminate against the Equipment with respect to scheduling of maintenance,
parts or service; (3) provide written notice to Lessor not less than thirty (30)
days after any change of the location of any Equipment (or the location of the
principal garage of any Equipment, to the extent that such Equipment is mobile
equipment) as specified in the Equipment Schedule; and (4) not attach or
incorporate the Equipment to or in any other item of equipment in such a manner
that the Equipment may be deemed to have become an accession to or a part of
such other item of equipment without the prior written consent of Lessor (which
consent shall not be unreasonably withheld). (b) Within a reasonable time,
Lessee will replace any parts of the Equipment which become worn out, lost,
destroyed, damaged beyond repair or otherwise permanently rendered unfit for
use, by new or reconditioned replacement parts which are free and clear of all
liens, encumbrances or rights of others and have a value, utility and remaining
useful life at least equal to the parts replaced. Any modification or addition
to the Equipment which is required by law shall be made by Lessee, at its
expense. Title to all parts, improvements and additions to the Equipment
immediately shall vest in Lessor, without cost or expense to Lessor or any
further action by any other person, and such parts, improvements and additions
shall be deemed incorporated in the Equipment and subject to the terms of this
Lease as if originally leased hereunder, if such parts are required by law or
are otherwise essential to the operation of the Equipment or cannot be detached
from the Equipment without materially interfering with the operation of the
Equipment or adversely affecting the value, utility and remaining useful life
which the Equipment would have had without the addition thereof. Lessee shall
not make any material alterations to the Equipment without the prior written
consent of Lessor except those alterations which are clearly prudent and
reasonable in accordance with industry practice or manufacturer or advisor
recommendations and so long as such alterations do not adversely affect the
value, utility or remaining useful life of the Equipment. (c) Upon forty-eight
(48) hours' notice, Lessee shall afford Lessor access to the premises where the
Equipment is located for the purpose of inspecting such Equipment and all
applicable maintenance or other records at any reasonable time during normal
business hours; provided, however, if a Default or Event of Default shall have
occurred and then be continuing, no notice of any inspection by Lessor shall be
required. If any discrepancies are found as they pertain to the general
condition of the Equipment, Lessor will communicate these discrepancies to
Lessee in writing. Lessee shall then have ten (10) days to commence good faith
efforts to rectify these discrepancies at its sole expense; provided, however,
that Lessee shall in no event have more than sixty (60) days after receiving
notice from Lessor to cure such discrepancies. Lessee shall pay all expenses of
a re-inspection by Lessor's appointed representative, if corrective measures
were required.
8. DISCLAIMER OF WARRANTIES. LESSOR IS NOT A SELLER, SUPPLIER OR
MANUFACTURER (AS SUCH TERMS ARE DEFINED OR USED, AS THE CASE MAY BE, IN THE
UCC), OR DEALER, NOR A SELLER'S OR A DEALER'S AGENT. THE EQUIPMENT IS LEASED
HEREUNDER "AS IS", AND LESSOR HAS NOT MADE, AND HEREBY DISCLAIMS LIABILITY FOR,
AND LESSEE HEREBY WAIVES ALL RIGHTS AGAINST LESSOR RELATING TO, ANY AND ALL
WARRANTIES, REPRESENTATIONS OR OBLIGATIONS OF ANY KIND WITH RESPECT TO THE
EQUIPMENT, EITHER EXPRESS OR IMPLIED, ARISING BY APPLICABLE LAW OR OTHERWISE,
INCLUDING ANY OF THE SAME RELATING TO OR ARISING IN OR UNDER (a) MERCHANTABILITY
OR FITNESS FOR PARTICULAR USE OR PURPOSE, (b) COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OR TRADE, OR (c) TORT (WHETHER OR NOT ARISING FROM THE ACTUAL,
IMPLIED OR IMPUTED NEGLIGENCE OF LESSOR OR STRICT LIABILITY) OR THE UCC OR OTHER
APPLICABLE LAW WITH RESPECT TO THE EQUIPMENT, INCLUDING ITS TITLE OR FREEDOM
FROM LIENS, FREEDOM FROM TRADEMARK, PATENT OR COPYRIGHT INFRINGEMENT, FREEDOM
FROM LATENT DEFECTS (WHETHER OR NOT DISCOVERABLE), CONDITION, MANUFACTURE,
DESIGN, SERVICING OR COMPLIANCE WITH APPLICABLE LAW; it being agreed that all
such risks, as between Lessor and Lessee, are to be borne by Lessee; and
Lessor's agreement to enter into this Lease and any Equipment Schedule is in
reliance upon the freedom from and complete negation of liability or
responsibility for the matters waived and disclaimed herein. Lessor is not
responsible for any direct, indirect, incidental or consequential damage to or
losses resulting from the installation, operation or use of the Equipment or any
products manufactured thereby. All assignable warranties made by the Supplier to
Lessor are hereby assigned to Lessee for and during the term of this Lease and
Lessee agrees to resolve all such claims directly with the Supplier. Lessor
fully shall cooperate with Lessee with respect
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to the resolution of such claims, in good faith and by appropriate proceedings
at Lessee's expense. Any such claim shall not affect in any manner the
unconditional obligation of Lessee to make Rent payments hereunder.
9. FEES AND TAXES. (a) To the extent permitted by law, Lessee shall file
any necessary report and return for, shall pay promptly when due, shall
otherwise be liable to reimburse Lessor (on an after-tax basis) for, and agrees
to indemnify and hold Lessor harmless from: (i) all titling, recordation,
documentary stamp and other fees; and (ii) taxes (other than taxes calculated
solely on the basis of net income), assessments and all other charges or
withholdings of any nature (together with any penalties, fines or interest
thereon); arising at any time upon or relating to the Equipment or this Lease or
the delivery, acquisition, ownership, use, operation or leasing or sale of the
Equipment, or upon the rent, whether the same be assessed to Lessor or Lessee
(any of the foregoing, an "Imposition"). (b) If any report, return or property
listing, or any Imposition is, by law, required to be filed by, assessed or
billed to, or paid by, Lessor, Lessee at its own expense will do all things
required to be done by Lessor (to the extent permitted by law) in connection
therewith and is hereby authorized by Lessor to act on behalf of Lessor in all
respects, including the contest or protest, in good faith and by appropriate
proceedings, of the validity of any Imposition, or the amount thereof. Lessor
agrees fully to cooperate with Lessee in any such contest, and Lessee agrees
promptly to indemnify Lessor for all reasonable expenses incurred by Lessor in
the course of such cooperation. An Imposition or Claim (as hereinafter defined)
therefor shall be paid, subject to refund proceedings, if failure to pay would
adversely affect the title or rights of Lessor. If Lessor obtains a refund of
any Imposition which has been paid (by Lessee, or by Lessor and for which Lessor
has been reimbursed by Lessee), Lessor shall promptly pay to Lessee the amount
of such refund to the extent actually received. If a Default or Event of Default
has occurred and is continuing, if Lessor obtains a refund of any Imposition
which has been paid (by Lessee, or by Lessor and for which Lessor has been
reimbursed by Lessee), Lessor shall promptly apply the net amount of such refund
to Lessee's obligations under this Lease and, to the extent of any excess, will
promptly pay to Lessee the amount of any excess in accordance with the terms and
conditions of this Lease and, specifically, Section 16 hereof. Lessee will cause
all xxxxxxxx of such charges to Lessor to be made to Lessor in care of Lessee
and will, in preparing any report or return required by law, show the ownership
of the Equipment in Lessee, and shall send a copy of any such report or return
to Lessor. If Lessee fails to pay any such charges when due, except any
Imposition being contested in good faith and by appropriate proceedings as above
provided for a reasonable period of time, Lessor at its option may do so, in
which event the amount so paid (including any penalty or interest incurred as a
result of Lessee's failure), plus interest thereon at the Late Charge Rate,
shall be paid by Lessee to Lessor with the next periodic payment of rent.
10. INTENT; LIENS. (a) The parties intend and agree that the Equipment
shall remain personal property, and that Lessor's interest therein not be
impaired, notwithstanding the manner in which it may be affixed to any real
property. If requested by Lessor, Lessee shall obtain and deliver to Lessor,
from any person having an interest in the property where the Equipment is to be
located, waivers of any lien, encumbrance or interest which such person might
have or hereafter obtain or claim with respect to the Equipment. (b) Lessee
agrees to maintain the Equipment free from all claims, liens, attachments,
rights of others and legal processes ("Liens") of creditors of Lessee or any
other persons, other than (1) the interest of Lessor, and (2) Liens for fees,
taxes, levies, duties or other governmental charges of any kind, Liens of
mechanics, materialmen, laborers, employees or suppliers and similar Liens
arising by operation of law incurred by Lessee in the ordinary course of
business for sums that are not yet delinquent or are being contested in good
faith by negotiations or by appropriate proceedings which suspend the collection
thereof (provided, however, that such proceedings do not involve any substantial
danger (as determined in Lessor's sole reasonable discretion) of the sale,
forfeiture or loss of the Equipment or any interest therein). Lessee will
defend, at its own expense, Lessor's first priority security interest in the
Equipment from such claims, Liens or legal processes. Lessee shall also notify
Lessor promptly upon receipt of notice of any Lien affecting the Equipment in
whole or in part.
11. INSURANCE. Lessee shall obtain and maintain all-risk insurance coverage
with respect to the Equipment insuring against, among other things: casualty,
including loss or damage due to fire and the risks normally included in extended
coverage, malicious mischief and vandalism, for not less than the full
replacement value; and commercial liability, including both bodily injury and
property damage with a combined single limit per occurrence of not less than the
amount specified in the Equipment Schedule, having a deductible reasonably
satisfactory to Lessor. All said insurance shall be in form (including all
endorsements required by Lessor) and amount and with companies reasonably
satisfactory to Lessor. All insurance for loss or damage shall provide that
losses, if any, shall be payable to Lessor as loss payee and Lessee shall
utilize its best efforts to have all checks relating to any such losses
delivered promptly to Lessor. Lessor shall be named as an additional insured
with respect to all such liability insurance. Lessee shall pay the premiums
therefor and deliver to Lessor evidence satisfactory to Lessor of such insurance
coverage. Lessee shall cause to be provided to Lessor, prior to the scheduled
expiration or lapse of such insurance coverage, evidence satisfactory to Lessor
of renewal or replacement coverage. Each insurer shall agree, by endorsement
upon the policy or policies issued by it or by independent instrument furnished
to Lessor, that (a) it will give Lessor thirty (30) days' prior written notice
of the effective date of any material alteration or cancellation of such policy;
and (b) insurance as to the interest of any named additional insured or loss
payee other than Lessee shall not be invalidated by any actions, inactions,
breach of warranty or
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conditions or negligence of Lessee or any person other than Lessor with respect
to such policy or policies. The proceeds of such insurance payable as a result
of loss of or damage to the Equipment shall be applied as required by the
provisions of Section 12 hereof.
12. LOSS AND DAMAGE. Lessee assumes the risk of direct and consequential
loss and damage to the Equipment. Except as provided in this Section for
discharge upon payment of Stipulated Loss Value, no loss or damage to the
Equipment or any part thereof shall release or impair any obligations of Lessee
under this Lease. Lessee agrees that Lessor shall not incur any liability to
Lessee for any loss of business, loss of profits, expenses, or any other Claims
resulting to Lessee by reason of any failure of or delay in delivery or any
delay caused by any non-performance, defective performance, or breakdown of the
Equipment, nor shall Lessor at any time be responsible for personal injury or
the loss or destruction of any other property resulting from the Equipment.
(a) In the event of loss or damage to any item of Equipment which does
not constitute a Total Loss (as hereinafter defined), Lessee shall, at its sole
cost and expense, promptly repair and restore such item of the Equipment to the
condition required by this Lease. Upon receipt of evidence reasonably
satisfactory to Lessor of completion of such repairs, Lessor will promptly
forward to Lessee all such insurance proceeds received by Lessor.
(b) Upon the occurrence of the actual or constructive total loss of any
item of the Equipment, or the loss, disappearance, theft or destruction of any
item of the Equipment or damage to any item of the Equipment to such extent as
shall make repair thereof uneconomical or shall render any item of the Equipment
permanently unfit for normal use for any reason whatsoever, or the condemnation,
confiscation, requisition, seizure, forfeiture or other taking of title to or
taking of use of any item of the Equipment or the imposition of any Lien thereon
by any governmental authority (as established to the reasonable satisfaction of
Lessor; any such occurrence being herein referred to as a "Total Loss"), during
the term of this Lease, Lessee shall give prompt notice thereof to Lessor. On
the next date for the payment of rent, Lessee shall pay to Lessor the Rent due
on that date plus the Stipulated Loss Value of the item or items of the
Equipment with respect to which the Total Loss has occurred and any other sums
due hereunder with respect to that Equipment (less any insurance proceeds or
condemnation award actually paid). Upon making such payment, this Lease and the
obligation to make future rental payments shall terminate solely with respect to
the Equipment or items thereof so paid for and (to the extent applicable) Lessee
shall become entitled thereto AS IS WHERE IS without warranty, express or
implied, with respect to any matter whatsoever. Lessor shall deliver to Lessee
such documents and instruments as reasonably may be required, releasing,
transferring and assigning to Lessee without recourse or warranty, all of
Lessor's interest in and to such Equipment. Lessor shall not be required to make
and may specifically disclaim any representation or warranty as to the condition
of the Equipment or any other matters. As used in this Lease, "Stipulated Loss
Value" shall mean the product of the Total Invoice Cost (designated on the
appropriate Equipment Schedule) of the Equipment and the applicable percentage
factor set forth on the Schedule of Stipulated Loss Values attached to the
Equipment Schedule. Stipulated Loss Value shall be determined as of the next
date on which a payment of Rent is or would be due after a Total Loss or other
termination of an Equipment Schedule, after payment of any Rent due on such
date, and the applicable percentage factor shall be that which is set forth with
respect to such Rent payment. After payment of the final payment of Rent due
under the original term of this Lease and during any renewal term thereof (if
applicable), Stipulated Loss Value shall be determined as of the date of
termination of such Equipment Schedule (absent any renewal thereof) or, if
during a renewal term, on the next date on which a payment of Rent is or would
be due after a Total Loss or other termination of such renewal term, after
payment of any Rent due on such date, and the applicable percentage factor shall
be the last percentage factor set forth on the Schedule of Stipulated Loss
Values attached to such Equipment Schedule.
13. REDELIVERY. Upon the expiration or earlier termination of the term of
any Equipment Schedule (or of any renewal thereof, if applicable), Lessee shall,
unless Lessee has paid the Stipulated Loss Value and other amounts with respect
thereto pursuant to Section 12 hereof or has exercised its options pursuant to
Sections 19(b) or (c) hereof and fully has satisfied its obligations thereunder,
at its own expense, return the Equipment to Lessor within ten (10) days (a) in
the same condition as when delivered to Lessee hereunder, ordinary wear and tear
resulting from proper use thereof excepted, (b) in such operating condition as
is capable of performing its originally intended use, (c) having been used,
operated, serviced and repaired in accordance with, and otherwise complying
with, Section 7 hereof, and (d) free and clear of all Liens whatsoever except
Liens resulting from claims against Lessor not relating to the ownership of such
Equipment. Lessee shall return the Equipment by delivering it to such place
within the Continental United States as Lessor shall reasonably specify. In
addition to Lessor's other rights and remedies hereunder, if the Equipment is
not returned in a timely fashion, or if repairs are necessary to place any items
of Equipment in the condition required in this Section, Lessee shall continue to
pay to Lessor per diem Rent at the last prevailing lease rate under the
applicable Equipment Schedule with respect to such items of Equipment, for the
period of delay in redelivery, or for the period of time reasonably necessary to
accomplish such repairs together with the cost of such repairs, as applicable.
Lessor's acceptance of such Rent on account of such delay or repair does not
constitute a renewal of the term of the related Equipment Schedule or a waiver
of Lessor's right to prompt return of the Equipment in proper condition.
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14. INDEMNITY. Lessee assumes and agrees to indemnify, defend and keep
harmless Lessor, and any assignee of Lessor's rights, obligations, title or
interests under any Equipment Schedule, its agents and employees
("Indemnitees"), from and against any and all Claims (other than such as may
directly and proximately result from the gross negligence or willful misconduct
of, such Indemnitees), by paying (on an after-tax basis) or otherwise
discharging same, when and as such Claims shall become due. It is the express
intention of both Lessor and Lessee, that the indemnity provided for in this
Section includes the agreement by Lessee to indemnify the Indemnitees from the
consequences of such Indemnitees' own simple negligence, whether that negligence
is the sole or concurring cause of the Claims, and to further indemnify such
Indemnitees with respect to Claims for which the Indemnitees are strictly
liable. Lessor shall give Lessee prompt notice of any Claim hereby indemnified
against and Lessee shall be entitled to control the defense thereof, so long as
no Default or Event of Default has occurred and is then continuing; provided,
however, that Lessor shall have the right to approve defense counsel selected by
Lessee (which approval shall not be unreasonably withheld). For the purposes of
this Lease, the term "Claims" shall mean all claims, allegations, xxxxx,
judgments, good faith settlements entered into, suits, actions, debts,
obligations, damages (whether incidental, consequential or direct), demands (for
compensation, indemnification, reimbursement or otherwise), losses, penalties,
fines, liabilities (including strict liability), charges that Lessor has
incurred or for which it is responsible, in the nature of interest, Liens, and
costs (including attorneys' fees and disbursements and any other legal or
non-legal expenses of investigation or defense of any Claim, whether or not such
Claim is ultimately defeated or enforcing the rights, remedies or indemnities
provided for hereunder, or otherwise available at law or equity to Lessor), of
whatever kind or nature, contingent or otherwise, matured or unmatured,
foreseeable or unforeseeable, by or against any person, arising on account of
(a) any Lease Document, or (b) the Equipment, or any part thereof, including the
ordering, acquisition, delivery, installation or rejection of the Equipment, the
possession, maintenance, use, condition, ownership or operation of any item of
Equipment, and by whomsoever owned, used or operated, during the term of any
Equipment Schedule with respect to that item of Equipment, the existence of
latent and other defects (whether or not discoverable by Lessor or Lessee), any
claim in tort for negligence or strict liability, and any claim for patent,
trademark or copyright infringement, or the loss, damage, destruction, removal,
return, surrender, sale or other disposition of the Equipment, or any item
thereof.
15. DEFAULT. (a) A default shall be deemed to have occurred hereunder and
under an Equipment Schedule upon the occurrence of any of the following (each,
an "Event of Default"): (1) Lessee shall fail to make any payment of Rent
hereunder or under an Equipment Schedule within ten (10) days after the same
shall have become due; or (2) Lessee shall fail to obtain and maintain the
insurance required herein; or (3) Lessee shall fail to perform or observe any
other covenant, condition or agreement to be performed or observed by it under
any Lease Document and such failure shall continue unremedied for a period of
thirty (30) days after written notice thereof to Lessee by Lessor; or (4) Lessee
shall (i) be generally not paying its debts as they become due; or (ii) take
action for the purpose of invoking the protection of any bankruptcy or
insolvency law, or any such law is invoked against or with respect to Lessee or
its property, and any such petition filed against Lessee is not dismissed within
sixty (60) days; or (5) Lessee shall make or permit any unauthorized Lien
against, or assignment or transfer of, this Lease, an Equipment Schedule, the
Equipment, or any interest therein; or (6) any certificate, statement,
representation, warranty or audit contained herein or furnished with respect
hereto by or on behalf of Lessee proving to have been false in any material
respect at the time as of which the facts therein set forth were stated or
certified, or having omitted any substantial contingent or unliquidated
liability or Claim against Lessee; or (7) Lessee shall be in default under any
(i) loan, lease, guaranty, installment sale or other financing agreement or
contract, of which Lessor, or any of its affiliates, is a party or beneficiary,
or (ii) material obligation for the payment of borrowed money, for the deferred
purchase price of property or any payment under any lease agreement, and in the
case of (i) or (ii) such default shall relate to an obligation to pay an amount
equal to or in excess of $1,000,000 and shall have been declared and the effect
thereof shall be to cause such debt or obligation to become due prior to its
stated maturity; or (8) Lessee shall have terminated its corporate existence,
consolidated with, merged into, or conveyed or leased substantially all of its
assets as an entirety to any person (such actions being referred to as an
"Event"), unless: (i) such person executes and delivers to Lessor an agreement
satisfactory in form and substance to Lessor, in its sole discretion, containing
such person's effective assumption, and its agreement to pay, perform, comply
with and otherwise be liable for, in a due and punctual manner, all of Lessee's
obligations having previously arisen, or then or thereafter arising, under any
and all of the Lease Documents; and (ii) Lessor is satisfied as to the
creditworthiness of such person, and as to such person's conformance to the
other standard criteria then used by Lessor for such purposes or such person has
a credit rating from Standard & Poors equal to or better than BBB with a
positive outlook and if rated by Xxxxx'x Investors Services a credit rating from
Xxxxx'x Investors Services equal to or better than Baa2 on the date such of
corporate event unless such person has outstanding indebtedness to, or is in
litigation with, ABN AMRO Bank N.V. or any of its affiliates or wholly-owned
subsidiaries at such time; or (9) there is a material change in the ownership of
Lessee's capital stock, unless Lessor is satisfied as to the creditworthiness of
Lessee and as to Lessee's conformance to the other standard criteria then used
by Lessor for such purpose immediately after such change of ownership or the new
entity after such change in ownership has a credit rating from Standard & Poors
equal to or better than BBB with a positive outlook and if rated by Xxxxx'x
Investors Services a credit rating from Xxxxx'x Investors Services equal to or
better than Baa2 unless such
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person has an outstanding indebtedness to, or is in litigation with, ABN AMRO
Bank N.V. or any of its affiliates or wholly-owned subsidiaries at such time.
(b) The occurrence of an Event of Default with respect to any Equipment Schedule
shall, at the sole discretion of Lessor, constitute an Event of Default with
respect to any or all Equipment Schedules to which it is then a party.
Notwithstanding anything set forth herein, Lessor may exercise all rights and
remedies hereunder independently with respect to each Equipment Schedule.
16. REMEDIES. Upon the occurrence of any Event of Default, Lessor may, at
its option, without election of remedies, declare this Lease and any Equipment
Schedule to be in default. At any time after termination of an Equipment
Schedule or after declaration by Lessor that such Equipment Schedule is in
default, Lessor may, in addition to any other remedies provided herein or by
applicable law, exercise one or more of the following remedies as Lessor in its
sole discretion shall elect:
(a)(1) Declare the Stipulated Loss Value of the Equipment (determined
as of the next date on which a payment is or would have been due after the
occurrence of an Event of Default), together with all other sums then due under
such Equipment Schedule, immediately due and payable with respect to any or all
of the Equipment (the parties also deem that such amount best reflects the
damages Lessor would sustain in the event of Lessee's bankruptcy or insolvency
and such Equipment Schedule were not assumed); or (2) accelerate and xxx for and
recover all Rent and other payments payable under such Equipment Schedule, then
accrued or thereafter accruing (including all mandatory renewal payments,
purchase option payments and any and all other amounts payable by Lessee upon
the expiration of the term of such Equipment Schedule or the return of the
Equipment leased thereunder), with respect to any or all of the Equipment.
(b)(1) Require Lessee to assemble any or all of the Equipment at the
location to which the Equipment was delivered or the location to which such
Equipment may have been moved by Lessee or such other location in reasonable
proximity to either of the foregoing as Lessor shall designate; and/or to return
promptly, at Lessee's expense, any or all of the Equipment to Lessor at the
location, in the condition and otherwise in accordance with all of the terms of
Section 13 hereof; and/or (2) take possession of and render unusable by Lessee
any or all of the Equipment, wherever it may be located, without any court order
or other process of law and without liability for any damages occasioned by such
taking of possession (other than to premises) (any such taking of possession
shall constitute an automatic termination of the Equipment Schedule pertaining
thereto, as it applies to those items taken without further notice, and such
taking of possession shall not prohibit Lessor from exercising its other
remedies hereunder).
(c)(1) Sell, re-lease or otherwise dispose of any or all of the
Equipment, whether or not in Lessor's possession, in a commercially reasonable
manner at public or private sale with notice to Lessee (the parties agreeing
that ten (10) days' prior written notice shall constitute adequate notice of
such sale), with the right of Lessor to purchase and apply the net proceeds of
such disposition, after deducting all reasonable costs incurred by Lessor in
connection with such Event of Default and all reasonable costs of such sale,
re-lease or other disposition (including but not limited to costs of
transportation, possession, storage, refurbishing, advertising and brokers'
fees), to the obligations of Lessee pursuant to this sub-part (c), with Lessee
remaining liable for any deficiency and with any excess being for the account of
Lessee; or (2) retain any or all of the Equipment.
(d) Terminate such Equipment Schedule as to any or all of the
Equipment.
(e) Proceed by appropriate court action, either at law or in equity
(including an action for specific performance), to enforce performance by Lessee
or to recover damages associated with such Event of Default; or exercise any
other right or remedy available to Lessor at law or in equity.
All amounts to be present valued shall be discounted at the then
current and effective Rate as defined in any applicable Equipment Schedule.
Unless otherwise provided above, a termination of any Equipment Schedule shall
occur only upon written notice by Lessor to Lessee and only with respect to such
items of the Equipment as Lessor specifically elects to terminate in such
notice. Except as to such items of the Equipment with respect to which there is
a termination, this Lease and the Equipment Schedules not so terminated shall
remain in full force and effect and Lessee shall be and remain liable for the
full performance of all its obligations hereunder and thereunder. Lessee shall
be liable for all reasonable legal fees and other expenses incurred by reason of
any Default or Event of Default or the exercise of Lessor's rights or remedies,
including all expenses incurred in connection with the return of any Equipment
in accordance with the terms of Section 13 hereof and this Section or in placing
such Equipment in the condition required by said Section, and all other
pre-judgment and post-judgment enforcement related actions taken by Lessor.
Lessee shall also be liable for Late Charges which shall accrue and be payable
with respect to all amounts becoming due pursuant to this Section from and after
the due date therefor until payment of the full amount thereof is made. No right
or remedy referred to in this Section is intended to be exclusive, but each
shall be cumulative and shall be in addition to any other remedy referred to
above or otherwise available at law or in equity, and may be exercised
concurrently or separately from time to
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time. The failure of Lessor to exercise the rights granted hereunder upon any
Event of Default by Lessee shall not constitute a waiver of any such right upon
the continuation or reoccurrence of any such Event of Default. In no event shall
the execution of an Equipment Schedule constitute a waiver by Lessor of any
pre-existing Event of Default in the performance of the terms and conditions
hereof.
17. ASSIGNMENT. (a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR (WHICH
SHALL NOT UNREASONABLY BE WITHHELD), LESSEE WILL NOT ASSIGN, TRANSFER OR
ENCUMBER ANY OF ITS RIGHTS OR OBLIGATIONS HEREUNDER OR UNDER ANY EQUIPMENT
SCHEDULE, OR ITS LEASEHOLD OR OTHER INTEREST IN THE EQUIPMENT, SUBLET THE
EQUIPMENT OR OTHERWISE PERMIT THE EQUIPMENT TO BE OPERATED OR USED BY, OR TO
COME INTO OR REMAIN IN THE POSSESSION OF, ANYONE BUT LESSEE. No sale, assignment
or sublease, whether authorized in this Section or in violation of the terms
hereof, shall relieve Lessee of its obligations, and Lessee shall remain
primarily liable, hereunder and under each Equipment Schedule unless and until
Lessor consents to such relief as part of such assignment. Any unpermitted sale,
assignment, transfer, encumbrance, delegation or sublease by Lessee shall be
void ab initio. (b) Lessor may assign any or all of its rights, obligations,
title and interest hereunder, or the right to enter into any Equipment Schedule,
or may resell (through syndication, assignment, participation or placement) an
interest in any or all of the Equipment, this Lease or any Equipment Schedule in
each case to a financial institution or institutions whose assets are at least
$50,000,000, or to a trust, partnership or other single purpose entity whose
beneficial owner is a financial institution or institutions whose assets are at
least $50,000,000. Lessee agrees that it will pay all Rent and other amounts
payable under each Equipment Schedule to the "Lessor" named therein; provided,
however, if Lessee receives written notice of an assignment from Lessor, Lessee
will pay all Rent and other amounts payable under any assigned Equipment
Schedule to such assignee or as instructed by Lessor and such assignee. Each
Equipment Schedule, incorporating by reference the terms and conditions of this
Lease, constitutes a separate instrument of lease, and the "Lessor" named
therein or its assignee shall have all rights as "Lessor" thereunder separately
exercisable by such named Lessor or assignee as the case may be, exclusively and
independently of Lessor or any assignee with respect to other Equipment
Schedules executed pursuant hereto. LaSalle National Leasing Corporation shall
act as agent in connection with the Lease Documents and the Equipment for itself
and any co-lessor that may become a Lessor pursuant to any assignments permitted
by this Section 17. Lessee agrees to confirm in writing receipt of any notice of
assignment, syndication, participation or placement, as reasonably may be
requested by Lessor or any such assignee or participant (collectively, the
"Assignee"). Lessee hereby waives and agrees not to assert against any such
Assignee any defense, setoff, recoupment, claim or counterclaim which Lessee has
or may at any time hereafter have against Lessor or any person other than such
Assignee, for any reason whatsoever. Lessee will provide reasonable assistance
to Lessor in whatever manner necessary in order to permit Lessor to complete any
resale, syndication, assignment, participation or placement of the transaction
contemplated by this Lease. Upon such assignment and except as may otherwise be
provided therein all references in this Lease to Lessor shall include such
Assignee. (c) Subject always to the foregoing, this Lease and each Equipment
Schedule inure to the benefit of, and are binding upon, the successors and
assigns of the parties hereto and thereto, as the case may be.
18. OWNERSHIP FOR TAX PURPOSES; GRANT OF SECURITY INTEREST; USURY SAVINGS:
(a) For income tax purposes, Lessor will treat Lessee as the owner of
the Equipment. Accordingly, Lessor agrees (i) to treat Lessee as the owner of
the Equipment on its Federal income tax return, (ii) not to take actions or
positions inconsistent with such treatment on or with respect to its Federal
income tax return, and not claim any tax benefits available to an owner of the
Equipment on or with respect to its Federal income tax return. Lessor shall in
no event be liable to Lessee if Lessee fails to secure any of the tax benefits
available to the owner of the Equipment.
(b) In order to secure the prompt payment of the Rent and all of the
other amounts from time to time outstanding under and with respect to the
Equipment Schedules, and the performance and observance by Lessee of all the
agreements, covenants and provisions thereof (including, without limitation, all
of the agreements, covenants and provisions of the Lease that are incorporated
therein), Lessee hereby grants to Lessor a first priority security interest in
the Equipment, together with all additions, attachments, accessories and
accessions thereto whether or not furnished by the supplier of the Equipment and
any and all substitutions, replacements or exchanges therefor, in each such case
in which Lessee shall from time to time acquire an interest, and any and all
insurance and/or other proceeds (but without Lessee having the power of sale) of
the property in and against which a security interest is granted hereunder.
(c) It is the intention of the parties hereto to comply with any
applicable usury laws to the extent that any Equipment Schedule is determined to
be subject to such laws; accordingly, it is agreed that, notwithstanding any
provision to the contrary in any Equipment Schedule or this Lease, in no event
shall any Equipment Schedule require the payment or permit the collection of
interest in excess of the maximum amount permitted by applicable law. If any
such excess interest is contracted for, charged
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or received under any Equipment Schedule or this Lease, or in the event that all
of the principal balance shall be prepaid, so that under any of such
circumstances the amount of interest contracted for, charged or received under
any Equipment Schedule or this Lease shall exceed the maximum amount of interest
permitted by applicable law, then in such event (1) the provisions of this
sub-part shall govern and control, (2) neither Lessee nor any other person or
entity now or hereafter liable for the payment hereof shall be obligated to pay
the amount of such interest to the extent that it is in excess of the maximum
amount of interest permitted by applicable law, (3) any such excess which may
have been collected shall be either applied as a credit against the then unpaid
principal balance or refunded to Lessee, at the option of the Lessor, and (4)
the effective rate of interest shall be automatically reduced to the maximum
lawful contract rate allowed under applicable law as now or hereafter construed
by the courts having jurisdiction thereof. It is further agreed that without
limitation of the foregoing, all calculations of the rate of interest contracted
for, charged or received under any Equipment Schedule or this Lease which are
made for the purpose of determining whether such rate exceeds the maximum lawful
contract rate, shall be made, to the extent permitted by applicable law, by
amortizing, prorating, allocating and spreading in equal parts during the period
of the full stated term of the indebtedness evidenced hereby, all interest at
any time contracted for, charged or received from Lessee or otherwise by Lessor
in connection with such indebtedness; provided, however, that if any applicable
state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for Lessor to receive a greater
interest per annum rate than is presently allowed, Lessee agrees that, on the
effective date of such amendment or preemption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest per annum rate
allowed by the amended state law or the law of the United States of America (but
not in excess of the interest rate contemplated hereunder).
19. END OF LEASE OPTIONS. Upon the expiration of the term of each Equipment
Schedule, Lessee may exercise the following specified options with respect to
all (but not less than all) of the Equipment leased under all Equipment
Schedules executed hereunder, upon the following terms and conditions.
(a) Renewal. Provided that Lessee is not then (i) in default of a
material obligation which can either not be cured within thirty (30) days or
which, in Lessor's sole and reasonable discretion, threatens the rights of
Lessor hereunder or may result in an encumbrance on the Equipment or (ii) in
Default under this Lease or any other agreement between Lessor and Lessee,
Lessee shall have the option, upon the expiration of the initial twelve (12)
months of the term of the first Equipment Schedule to be executed under this
Lease (the "Initial Term") and/or the first eight (8) Renewal Terms of the first
Equipment Schedule to be executed under this Lease, to renew the Lease with
respect to all, but not less than all, of the Equipment leased under all
Equipment Schedules executed hereunder for an additional term of twelve (12)
months (each, a "Renewal Term"). Including all Renewal Terms, the maximum term
of the first Equipment Schedule to be executed under this Lease shall be ten
(10) years (the Initial Term plus nine (9) Renewal Terms) (the "Maximum Lease
Term"), and the maximum term of each additional Equipment Schedule shall not
exceed the then remaining Maximum Lease Term.
(b) Return. If Lessee shall not have exercised its option to renew this
Lease or its purchase option pursuant to this Section, upon the expiration of
the term of each Equipment Schedule, Lessee shall return all (but not less than
all) of the Equipment described on all Equipment Schedules executed hereunder to
Lessor upon the following terms and conditions: Lessee shall (i) pay to Lessor
on the last day of the term of this Lease with respect to each individual
Equipment Schedule, in addition to the scheduled Rent then due on such date and
all other sums then due hereunder, a terminal rental adjustment amount equal to
the Return Fee with respect to such Equipment (as specified on the Equipment
Schedule), and (ii) return the Equipment to Lessor in accordance with Section 13
hereof.
(c) Purchase. Lessee shall have the option, upon the expiration of the
term of each Equipment Schedule, to purchase all (but not less than all) of the
Equipment described on all Equipment Schedules executed hereunder upon the
following terms and conditions: If Lessee desires to exercise this option with
respect to the Equipment, Lessee shall pay to Lessor on the last day of the term
with respect to each individual Equipment Schedule, in addition to the scheduled
Rent (if any) then due on such date and all other sums then due hereunder, in
cash, the purchase price for the Equipment so purchased, determined as
hereinafter provided. The purchase price for the Equipment shall be an amount
equal to the Fixed Purchase Price of such Equipment (as specified on the
Equipment Schedule), plus all taxes and charges upon sale and all other
reasonable and documented expenses incurred by Lessor in connection with such
sale, including, without limitation, any such expenses incurred based on a
notice from Lessee to Lessor that Lessee intended to return any such items of
Equipment. Upon satisfaction of the conditions specified in this sub-part,
Lessor will transfer, on an AS IS, WHERE IS BASIS, without recourse or warranty,
express or implied, of any kind whatsoever, all of Lessor's interest in and to
the Equipment. Lessor shall not be required to make and may specifically
disclaim any representation or warranty as to the condition of such Equipment
and other matters (except that Lessor shall warrant that it has conveyed
whatever interest it received in the Equipment free and clear of any lien or
encumbrance created by, through or under Lessor). Lessor shall execute and
deliver to Lessee such Uniform Commercial Code Statements of Termination as
reasonably may be required in order to terminate any interest of Lessor in and
to the Equipment.
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(d) Notice of Election. Lessee shall give Lessor written notice of its
election of the options specified in this Section not less than one hundred
eighty (180) days nor more than three hundred sixty-five (365) days before the
expiration of the Initial Term or any Renewal Term of the first Equipment
Schedule to be executed under this Lease. Such election shall be effective with
respect to all Equipment described on all Equipment Schedules executed
hereunder. If Lessee fails timely to provide such notice, without further action
Lessee automatically shall be deemed to have elected (1) to renew the term of
this Lease pursuant to sub-part (a) of this Section if a Renewal Term is then
available hereunder, or (2) to purchase the Equipment pursuant to sub-part (c)
of this Section if a Renewal Term is not then available hereunder.
20. MISCELLANEOUS. (a) This Lease, the Riders annexed hereto, each
Equipment Schedule and any commitment letter between the parties, constitute the
entire agreement between the parties with respect to the subject matter hereof
and thereof and shall not be rescinded, amended or modified in any manner except
by a document in writing executed by both parties. (b) Any provision of this
Lease 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, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. (c) Each
execution by Lessee of an Equipment Schedule shall be deemed a reaffirmation and
warranty that there shall have been no material adverse change in the business
or financial condition of Lessee from the date of execution hereof. With respect
to each Equipment Schedule, the obligations of Lessee under Sections 9, 13, 14
and 19(b) hereof, together with any of Lessee's obligations under the other
provisions of this Lease (as incorporated therein) which have accrued but not
been fully satisfied, performed or complied with prior to the termination or
expiration of such Equipment Schedule, shall survive the termination or
expiration thereof to the extent necessary for the full and complete performance
of such obligations. (d) Lessor represents and covenants to Lessee that Lessor
has full authority to enter into this Lease and any other Lease Documents to
which it may become a party, and so long as no Default or Event of Default
occurs with respect to an Equipment Schedule, neither Lessor nor any person
authorized by Lessor shall interfere with Lessee's right to peaceably and
quietly possess and use the Equipment during the term thereof, subject to the
terms and provisions hereof. (e) Expenses incurred by Lessor in connection with
(1) the filing or recording of real property waivers (if applicable) and UCC
statements, and (2) lien search reports and copies of filings with respect to
Lessee and/or the Equipment, shall be for the account of Lessee and shall be
payable by Lessee upon demand. (f) If Lessor is required by the terms hereof to
pay to or for the benefit of Lessee any amount received as a refund of an
Imposition or as insurance proceeds, and a Default or Event of Default has then
occurred and is continuing, Lessor shall not be required to pay such amount
unless and until any such Default shall have been cured or any such Event of
Default shall have been waived by Lessor. (g) If Lessee fails to perform any of
its obligations hereunder with respect to an Equipment Schedule, Lessor shall
have the right, but shall not be obligated, to effect such performance, and the
amount of any out of pocket and other reasonable expenses of Lessor incurred in
connection with such performance, together with interest thereon at the Late
Charge Rate, shall be payable by Lessee upon demand. Lessor's effecting such
compliance shall not be a waiver of Lessee's default. (h) Lessee irrevocably
authorizes Lessor to file any UCC statements, and Lessee irrevocably appoints
Lessor as Lessee's attorney-in-fact (which power shall be deemed coupled with an
interest) to execute, endorse and deliver any UCC statements and any documents
and checks or drafts relating to or received in payment for any loss or damage
under the policies of insurance required by the provisions of Section 11 hereof,
but only to the extent that the same relates to the Equipment. (i) LESSOR AND
LESSEE HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH LESSEE
AND/OR LESSOR MAY BE PARTIES ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS
LEASE. LESSEE AUTHORIZES LESSOR TO FILE THIS PROVISION WITH THE CLERK OR JUDGE
OF ANY COURT HEARING ANY SUCH CLAIM. THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY MADE BY THE PARTIES AND THE PARTIES HEREBY ACKNOWLEDGE THAT NO
REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE
THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT.
LESSOR AND LESSEE FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED IN THE
SIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER BY LEGAL COUNSEL,
SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL. (j) All notices (excluding xxxxxxxx and
communications in the ordinary course of business) hereunder shall be in
writing, personally delivered, delivered by overnight courier service, sent by
facsimile transmission (with confirmation of receipt), or sent by certified
mail, return receipt requested, addressed to the other party at its respective
address stated below the signature of such party or at such other address as
such party shall from time to time designate in writing to the other party; and
shall be effective from the date of receipt. (k) This Lease and all of the other
Lease Documents shall not be effective unless and until accepted by execution by
an officer of Lessor at the address, in the State of New York (the "State"), as
set forth below the signature of Lessor. THIS LEASE AND ALL OF THE OTHER LEASE
DOCUMENTS, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER, SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE (INCLUDING THE CONFLICT OF LAWS PRINCIPLES
OF THE STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
The parties agree that any action or proceeding arising out of or relating to
this Lease may be commenced in any state or Federal court in the State, and
agree that a summons and complaint commencing an action or
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proceeding in any such court shall be properly served and shall confer personal
jurisdiction if served personally or by certified mail to it at its address
hereinbelow set forth, or as it may provide in writing from time to time, or as
otherwise provided under the laws of the State. (l) This Lease and all of the
other Lease Documents may be executed in any number of counterparts and by
different parties hereto or thereto on separate counterparts, each of which,
when so executed and delivered, shall be an original, but all such counterparts
shall together consist of but one and the same instrument; provided, however,
that to the extent that this Lease and/or the Equipment Schedule would
constitute chattel paper, as such term is defined in the UCC as in effect in any
applicable jurisdiction, no security interest herein or therein may be created
through the transfer or possession of this Lease in and of itself without the
transfer or possession of the original of such Equipment Schedule and
incorporating the Lease by reference; and no security interest in this Lease and
an Equipment Schedule may be created by the transfer or possession of any
counterpart of such Equipment Schedule other than the original thereof, which
shall be identified as the document marked "Original" and all other counterparts
shall be marked "Duplicate".
21. DEFINITIONS AND RULES OF CONSTRUCTION. (a) The following terms when
used in this Lease or in any of the Equipment Schedules have the following
meanings: (1) "applicable law" or "law": any law, rule, regulation, ordinance,
order, code, common law, interpretation, judgment, directive, decree, treaty,
injunction, writ, determination, award, permit or similar norm or decision of
any governmental authority; (2) "business day": any day, other than a Saturday,
Sunday, or legal holiday for commercial banks under the laws of the State; (3)
"UCC": the Uniform Commercial Code as in effect in the State or in any other
applicable jurisdiction; and any reference to an article or section thereof
shall mean the corresponding article or section (however termed) of any such
other applicable version of the UCC; (4) "governmental authority": any federal,
state, county, municipal, regional or other governmental authority, agency,
board, body, instrumentality or court, in each case, whether domestic or
foreign; and (5) "person": any individual, corporation, partnership, joint
venture, or other legal entity or a governmental authority, whether employed,
hired, affiliated, owned, contracted with, or otherwise related or unrelated to
Lessee or Lessor. (b) The following terms when used herein or in any of the
Equipment Schedules shall be construed as follows: "herein," "hereof,"
"hereunder," etc.: in, of, under, etc. this Lease or such other Lease Document
in which such term appears (and not merely in, of, under, etc. the section or
provision where the reference occurs); "including": containing, embracing or
involving all of the enumerated items, but not limited to such items unless such
term is followed by the words "and limited to," or similar words; and "or": at
least one, but not necessarily only one, of the alternatives enumerated. Any
defined term used in the singular preceded by "any" indicates any number of the
members of the relevant class. Any Lease Document or other agreement or
instrument referred to herein means such agreement or instrument as supplemented
and amended from time to time. Any reference to Lessor or Lessee shall include
their permitted successors and assigns. Any reference to a law shall also mean
such law as amended, superseded or replaced from time to time. Unless otherwise
expressly provided herein to the contrary, all actions that Lessee takes or is
required to take under any Lease Document shall be taken at Lessee's sole cost
and expense, and all such costs and expenses shall constitute Claims and be
covered by Section 14 hereof. To the extent Lessor is required to give its
consent or approval with respect to any matter, the reasonableness of Lessor's
withholding of such consent shall be determined based on the then existing
circumstances; provided, that Lessor's withholding of its consent shall be
deemed reasonable for all purposes if (i) the taking of the action that is the
subject of such request, would result (in Lessor's discretion), in (A) an
impairment of Lessor's rights, title or interests hereunder or under any
Equipment Schedule or other Lease Document, or to the Equipment, or (B) expose
Lessor to any Claims, or (ii) to the extent Lessee fails to provide promptly to
Lessor any filings, certificates, opinions or indemnities specified by Lessor to
Lessee in writing.
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IN WITNESS WHEREOF, the parties hereto have caused this Master Lease
Agreement to be duly executed, under seal, as of the day and year first above
set forth.
LASALLE NATIONAL LEASING CORPORATION HS GATHERING, L.L.C.
Lessor Lessee
By: [SEAL] By: [SEAL]
------------------------- -------------------------------
Name: Name:
------------------------------- ------------------------------------
Title: Title:
------------------------------ -----------------------------------
Xxx Xxxx Xxxxxxxxxxxx Xxxxxx One Maritime Plaza
Suite 0000 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000 Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000 Facsimile:
-------------------------------
Federal Employer Identification No.:
-----
Jurisdiction of Organization:
------------
Organization No.:
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