Exhibit 10.8a
MASTER LEASE AGREEMENT
This Master Lease Agreement ("Lease") is entered into as of December 22, 2003 by
and between The Xxxxxx Asset Group, LLC, a Delaware limited liability company
("Lessor") having its principal place of business at 0 Xxxxxx Xx., Xxxxxxxxx, XX
00000 and Playboy Entertainment Group, Inc, a Delaware corporation ("Lessee")
having its principal place of business at 000 Xxxxx Xxxx Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000.
As used in this Master Equipment Lease, the terms "Estimated Delivery Date",
"Acceptance Date", "Basic Rent Date", "Monthly Lease Factor", "Daily Lease
Factor", "Lessor's Cost", "Casualty Value", "Casualty Overdue Rate", "Overdue
Rate", "Installation Site", Manufacturer", "Machine Type", "Model Number" and
"Serial Number" shall have the meanings with respect to each Item of Equipment
set forth on the Equipment Schedule which describes that Item of Equipment. If
not set forth in an Equipment Schedule, capitalized terms shall have the meaning
set forth in this Lease.
1. LEASE OF EQUIPMENT: Subject to the terms and conditions, contained herein,
Lessor hereby leases to Lessee, and Lessee leases from Lessor, the items of
personal property (herein referred to collectively as the "Equipment," or
individually, as an "Item of Equipment") described more fully in one or more
Equipment Schedules executed by Lessor and Lessee, designated Exhibit A and
numbered sequentially.
Each Equipment Schedule shall be considered a separate and enforceable lease
incorporating the terms and conditions of this Lease. An executed counterpart of
this Lease (including any supplements, addenda, or riders hereto) or photocopy
hereof, together with an executed Equipment Schedule, marked "Original", shall
be the original of the lease for the Equipment described on such Schedule and
together they constitute and shall be referred to herein as the "Lease" with
respect to such Equipment. All other executed counterparts of the Equipment
Schedule shall be marked "Duplicate". To the extent that this Lease constitutes
chattel paper, as such term is defined in the Uniform Commercial Code of the
applicable jurisdiction, no security interest in this Lease may be created
through the transfer of possession of any counterpart other than the Original of
an Equipment Schedule. Notwithstanding the delivery of the Equipment to, and its
possession and use by Lessee, Lessor shall retain the full legal title to the
Equipment, it being expressly understood that this Lease is an agreement of
lease only.
2. TERM AND RENEWAL. At such time as all Equipment listed on an Equipment
Schedule is operational, in good working order and available for use by Lessee,
Lessee shall complete and deliver to Lessor an executed equipment acceptance
("Equipment Acceptance"). Lessee shall make available to Lessor such information
as Lessor shall reasonably request from time to time in respect of the
installation of the Equipment. In the event (a) Lessee shall fail timely to
execute and deliver to Lessor such Equipment Acceptance or (b) Lessee shall
reject the Equipment, in either case for any reason whatsoever other than the
fault of Lessor, all obligations, if any, of Lessor to each vendor with
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Exhibit 10.8a
respect to the Equipment shall be deemed those of Lessee and Lessee shall
indemnify and hold Lessor harmless from any and all liability, damages, and
reasonable expenses including reasonable attorneys' fees arising therefrom.
The lease term ("Term") shall commence as of the date specified on the
applicable Equipment Acceptance (as to such Equipment Schedule, the
"Commencement Date") and continue through the last day of the final month of the
number of months provided in the Equipment Schedule unless theretofore extended
pursuant to its terms or terminated pursuant to or upon the occurrence of an
Event of Default (the "Expiration Date"). Lessee shall give Lessor notice of
Lessee's intention to return the Equipment at least 60 days prior to the
Expiration Date of the applicable Equipment Schedule, and the term of such
Equipment Schedule shall automatically be extended one month for each thirty-day
period or portion thereof Lessee fails to give such notice.
Upon 60 days prior written notice to Lessor, Lessee may, at its option ("Renewal
Option"), renew the Equipment Schedule in respect of all, but not less than all,
of the Equipment covered under the Equipment Schedule upon the same terms and
conditions as provided for in the Lease Agreement and the Equipment Schedule
(other than Term and Rent), upon the following terms and conditions: (a) The
Basic Rent due in respect of the Equipment shall be the fair market monthly rent
for continued use by Lessee as determined by agreement between Lessor and Lessee
(or, in the absence of such an agreement, by an independent appraisal at
Lessee's expense by an appraiser mutually acceptable to Lessee and Lessor) and
(b) the Casualty Value during the term of such renewed Equipment Schedule shall
be 100% of the fair market value of the Equipment at the Expiration Date of the
applicable Equipment Schedule as determined by agreement between Lessor and
Lessee (or, in the absence of such an agreement, by an independent appraisal at
Lessee's expense by an appraiser mutually acceptable to Lessee and Lessor), and
(c) the term shall be agreed by the parties and in no case less than twelve
months.
The terms of each Equipment Schedule hereto are subject to all conditions and
provisions of this Lease as it may at any time be amended in accordance with the
terms hereof.
3. NON-CANCELABLE LEASE. This Lease cannot be canceled or terminated during the
Term except as expressly provided herein.
4. NET LEASE. This Lease is a net lease and Lessee agrees that its obligations
to pay all rent and other sums payable hereunder and the rights of Lessor and
Assignee (defined in Section 18) in and to such rent, are absolute and
unconditional and are not subject to any abatement, reduction, setoff, defense,
counterclaim or recoupment due or alleged to be due to, or by reason of, any
past, present or future claims which Lessee may have against Lessor, any
Assignee, the manufacturer or seller of the Equipment. Lessee shall maintain in
effect all licensing and registration of the Equipment as may, from time to
time, be required by federal, state or local law or regulation and shall
operate, maintain and use the Equipment in accordance with all applicable
federal, state or local laws or regulations, including without limitation all
applicable rules and regulations of the Federal Communications Commission. The
provisions of this Section shall survive the expiration or earlier
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Exhibit 10.8a
termination of each Equipment Schedule.
5. RENT: The Lessee shall pay to the Lessor or its Assignee the following
amounts ("Basic Rent"), for each item of Equipment:
(a) On the Commencement Date (but only if the Commencement Date occurs on the
first day of a calendar month) and on each successive Basic Rent Date
thereafter, an amount equal to the Monthly Lease Factor multiplied by Lessor's
Cost of the Item of Equipment. In addition, on the Commencement Date, unless the
Commencement Date occurs on the first day of a calendar month, Lessee shall pay
to Lessor an amount equal to the product of (a) the Daily Lease Factor
multiplied by (b) the number of days from (and including) the Commencement Date
to (and excluding) the First Basic Rent Date multiplied by (c) Lessor's Cost of
the Item of Equipment; and
(b) In the event of a Casualty Occurrence (as defined in Section 13 of this
Lease), on the date provided herein, any amount payable hereunder as Casualty
Value and any other amounts payable pursuant to the Equipment Schedule; and
(c) within 10 days of demand therefor by Lessor, any other amount payable
hereunder by Lessee, to the Lessor or others; and
(d) on demand, to the extent permitted by applicable law, interest at the
Overdue Rate (as provided in the appropriate Equipment Schedule) on any payment
of Basic Rent or other monies which have not been received by the Lessor or its
assignee in available funds on the applicable due date. Such interest shall
accrue on any unpaid amount at the Overdue Rate from the applicable due date
until paid, and shall be paid by Lessee within 10 days of receipt of written
notice that such payment is past due.
6. LESSOR COMMITMENT. So long as Lessee complies with all of its obligations
hereunder and Lessor has not given notice (or been deemed to have given notice)
of an Event of Default pursuant to Section 19, Lessor agrees to lease to Lessee
the Items of Equipment described on each Equipment Schedule and agrees that
neither Lessor or anyone acting at Lessor's direction, nor Assignee or anyone
acting at Assignee's direction) shall disturb Lessee's quiet and peaceful
possession and use of such Equipment for its intended purpose, provided,
however, Lessor shall have no obligation hereunder until the execution and
delivery of each such Equipment Schedule and Equipment Acceptance by Lessor and
Lessee.
7. NO WARRANTIES BY LESSOR. (a) Lessee acknowledges and agrees that it has made
the selection of the Equipment based upon its own judgment, that the Equipment
is of a size, design, capacity, condition, quality, durability and manufacture
selected by Lessee, and that the Equipment is suitable for Lessee's purposes.
Lessee expressly disclaims any reliance upon any statements or representations
made by Lessor EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN. LESSOR MAKES NO
REPRESENTATIONS OR WARRANTIES TO LESSEE OR ANY OTHER PERSON OF ANY KIND, EXPRESS
OR IMPLIED, AS TO ANY MATTER
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Exhibit 10.8a
WHATSOEVER, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE SIZE, DESIGN
CAPACITY, CONDITION, QUALITY, DURABILITY, SUITABILITY, MANUFACTURE OR
PERFORMANCE OF THE EQUIPMENT, ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR WITH RESPECT TO INFRINGEMENT (INCLUDING WITHOUT LIMITATION
INFRINGEMENT OF PATENTS OR TRADEMARKS) OR THE LIKE. LESSOR SHALL HAVE NO
LIABILITY TO LESSEE OF ANY KIND OR NATURE WHATSOEVER, NOR SHALL THERE BE ANY
ABATEMENT OF RENTAL, ARISING OUT OF OR IN CONNECTION WITH (I) ANY DEFICIENCY OR
DEFECT IN THE EQUIPMENT, (II) THE USE OR PERFORMANCE OF THE EQUIPMENT OR (III)
ANY LOSS OF BUSINESS OR OTHER CONSEQUENTIAL LOSS OR DAMAGE WHETHER OR NOT
RESULTING FROM ANY OF THE FOREGOING. SUBJECT TO THE LIMITATIONS SET FORTH IN
SECTION 15, LESSEE WILL DEFEND, INDEMNIFY AND HOLD LESSOR HARMLESS AGAINST ANY
AND ALL DEMANDS, CLAIMS, COSTS, LOSSES, DAMAGES AND LIABILITIES ARISING OUT OF
OR IN CONNECTION WITH THE DESIGN, MANUFACTURE, POSSESSION, OPERATION OR USE OF
THE EQUIPMENT. Lessee agrees to look solely to the manufacturer or vendor of the
Equipment for all warranties made by manufacturer or vendor. Any such warranties
are hereby assigned to Lessee for the term of this Lease. Lessor appoints Lessee
as its agent and confers on Lessee the authority to settle any and all warranty
claims with respect to the Equipment arising during the Term, on Lessor's
behalf. Lessee agrees to inform Lessor, or its Assignee, as to the extent and
kind of all claims made against vendors or manufacturers under the warranties
issued on the Equipment. Lessee further agrees that any Equipment, which is
exchanged for Equipment under the Lease, shall become the property of the
Lessor, or its Assignee, for the purpose of this Lease. No warranty settlement
in excess of $10,000.00 may be made for cash without the approval of the Lessor
or its Assignee.
(b) Lessee understands and agrees that neither the vendor, the manufacturer nor
any representative or other agent of the vendor or manufacturer is an agent of
Lessor. Neither the vendor nor the manufacturer, nor any representative or agent
of either is authorized to waive or alter any term or condition of this Lease,
and no representations as to the Equipment or any other matter by the vendor or
the manufacturer shall in any way affect Lessee's duty to pay the Basic Rent and
perform its other obligations as set forth in this Lease.
(c) Lessee hereby authorizes Lessor to insert in this Lease and each Equipment
Schedule hereto the serial numbers, and other identification data, of the
Equipment when determined by Lessor.
8. REPRESENTATIONS AND WARRANTIES. (a) Lessee represents and warrants that:
(i) it is a corporation, is duly organized, validly existing and in good
standing under laws of the state of its incorporation, and is duly aqualified to
do business in each state where the Equipment will be located;
(ii) it has full power and authority to execute and deliver this Lease and
perform its obligations hereunder and this Lease has been duly authorized and
constitutes the legal, valid and
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Exhibit 10.8a
binding obligations of Lessee enforceable in accordance with its terms;
(iii) this Lease will not contravene any law, regulation or judgment
affecting Lessee or result in any breach of any agreement or other instrument
binding on Lessee;
(iv) no consent of Lessee's shareholders or holder of any indebtedness, or
filing with, or approval of, any governmental agency or commission, is a
condition to the performance of the provisions hereof;
(v) there is no action or proceeding pending or threatened against Lessee
before any court or administrative agency which might have a materially adverse
effect on the business, financial condition or operations of Lessee;
(vi) no deed of trust, mortgage or third party interest (other than
Permitted Liens) has attached to the Equipment; and
(vii) the Equipment will remain at all times, under applicable law,
removable personal property notwithstanding the manner in which the Equipment
may be attached to any real property, free and clear of any lien or encumbrance
in favor of Lessee or any other person other than (A) any lien or encumbrance,
to the extent created by or through Lessor or any Assignee (a "Lessor Lien") and
(B) any lien or encumbrance that is (i) created or expressly permitted by the
Lease or any another agreement or instrument executed or approved in writing by
Lessor and Lessee; (ii) unindemnified Taxes or Taxes (as defined below) either
not yet due and payable or being contested in good faith in accordance with
Section 16; (iii) construction materialmen's, mechanics', workers', repairmen's,
employees' or other like xxxx, xxxx or encumbrance arising in the ordinary
course of business for amounts either not overdue for a period of more than 60
days or being contested in good faith by appropriate proceedings provided that
there is no risk of imminent foreclosure or seizure; or (iv) arising out of
judgments or awards against Lessee which at the time are being contested in good
faith by appropriate proceedings provided that there is no risk of imminent
foreclosure or seizure (collectively, "Permitted Liens").
(b) Lessor represents and warrants that:
(i) it is a limited liability company, is duly organized, validly existing
and in good standing under laws of the state of its organization, and is duly
qualified and in good standing in all jurisdictions where necessary to enter
into this Lease;
(ii) it has full power and authority to execute and deliver this Lease and
perform its obligations hereunder and this Lease has been duly authorized and
constitutes the legal, valid and binding obligations of Lessor enforceable in
accordance with its terms;
(iii) this Lease will not contravene any law, regulation or judgment
affecting Lessor or result in any breach of any agreement or other instrument
binding on Lessor;
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Exhibit 10.8a
(iv) no consent of Lessor's shareholders or holder of any indebtedness, or
filing with, or approval of, any governmental agency or commission, is a
condition to the performance of the provisions hereof; and
(v) there is no action or proceeding pending or threatened against Lessee
before any court or administrative agency which might have a materially adverse
effect on the business, financial condition or operations of Lessor.
9. EQUIPMENT ORDERING. Lessee shall be responsible for all packing, rigging,
transportation and installation charges for the Equipment. Lessee shall arrange
for delivery of Equipment, unless otherwise specified in the Equipment Schedule,
so that it can be accepted in accordance with Section 10 hereof. Lessee hereby
agrees to indemnify and hold Lessor harmless from any claims, liabilities, costs
and expenses, including reasonable attorney fees, incurred by Lessor arising out
of any purchase orders or assignments executed by Lessor with respect to any
Equipment or services relating thereto.
10. LESSEE ACCEPTANCE. Lessee shall return to Lessor the signed and dated
Acceptance Certificate attached hereto as Exhibit "B":
(a) acknowledging the Equipment has been received, installed and is ready for
use and
(b) accepting it as satisfactory in all respects for the purposes of the Lease.
11. OWNERSHIP, LOCATION AND INSPECTION OF EQUIPMENT.
(a) Nothing contained in this Lease or in any Equipment Schedule shall give or
convey to Lessee any right, title or interest in or to the Equipment, except the
right to retain, possess and use the Equipment as a lessee for the Term (and the
right to exercise any purchase option contained in any Equipment Schedule). Upon
the request of Lessor made at any time during the Term of any Equipment
Schedule, Lessee shall affix and maintain on the Equipment leased pursuant to
such Equipment Schedule, tags, decals, plates or labels (supplied by Lessor)
indicating the interest of Lessor in the Equipment.
(b) Lessee shall at all times keep the Equipment free and clear from any liens
or encumbrances of Lessee's creditors or other persons (other than Permitted
Liens). At Lessor's request, Lessee shall provide Lessor from each owner or
mortgagee of any premises in which any Item of Equipment is located a written
waiver of any rights of such owner or mortgagee in and to the Equipment or any
part or item thereof, in form and substance reasonably acceptable to Lessor.
Lessee agrees that the Equipment shall always remain and be deemed personal and
moveable property; Lessee shall not enter into any agreement or take any action
inconsistent with the foregoing. Under no circumstances shall Lessee remove or
permit removal of any Equipment from the Installation Site shown on the
Equipment Schedule therefor unless (a) Lessee shall give Lessor at least 20 days
prior written notice
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Exhibit 10.8a
thereof, and (b) Lessee, at Lessee's cost, shall have provided Lessor with
appropriate Uniform Commercial Code financing statements and other documents
requested by Lessor to maintain perfection of its interest in the Equipment and
the applicable Equipment Schedule. Under no circumstances shall any Equipment be
removed to a location which is not within the continental United States or in
which the Uniform Commercial Code is not in effect.
(c) Lessor at a time mutually agreed upon by the parties, and at its own risk,
shall have the right to inspect the Equipment which is the subject of this Lease
for the purpose of ensuring compliance by Lessee with its obligations under this
Lease. Such inspection right shall be subject to Lessee's standard security
procedures and shall occur during normal business hours.
12. EQUIPMENT MAINTENANCE. Lessee shall enter into, and will maintain in effect,
where applicable and if available, manufacturer's standard maintenance contract
or any other service agreement reasonably satisfactory to Lessor. Lessee may
comply with the requirements of this section through a program of
self-maintenance. Any maintenance arrangement entered into by Lessee pursuant to
this Section 12 shall provide for the maintenance of the Equipment in good
condition and working order and repairs and replacement of parts thereof.
13. LOSS OR DAMAGE. Lessee shall bear the entire risk of loss or damage to the
Equipment or caused by the Equipment, from the Commencement Date until the
Lessor takes possession of the Equipment after the Expiration Date or earlier
termination of this Lease.
In the event any Item of Equipment is damaged to a material extent while Lessee
bears the risk of loss, Lessee shall promptly notify Lessor and shall determine
within 10 days of the date of such notice whether such Item of Equipment can be
repaired. If the Item of Equipment can be repaired, Lessee shall at its expense
repair such Item to its condition immediately prior to the damage.
In the event any Item of Equipment shall be lost, stolen, destroyed, damaged
beyond repair, or rendered permanently unfit or unavailable for use for any
reason whatsoever (any such occurrence being referred to as a "Casualty
Occurrence"), Lessee shall promptly notify Lessor. Lessee shall then terminate
this Lease in respect to the Item of Equipment by paying to Lessor on any Basic
Rent Date occurring not more than 90 days after such Casualty Occurrence an
amount equal to the Casualty Value (as determined in the Equipment Schedule)
applicable to such Item of Equipment on the Basic Rent Date immediately
preceding the Basic Rent Date upon which such payment is made. After the payment
of such Casualty Value and all Rent which becomes due and payable on or before
the Basic Rent Date immediately preceding the date on which Casualty Value is
paid with respect to such Casualty Occurrence, the Lessee's obligation to pay
further Basic Rent for such item of Equipment shall cease, but the Lessee's
obligation to pay all other sums, if any, for such Item of Equipment shall
remain unchanged.
Following payment of the Casualty Value and Basic Rent for an Item of Equipment
in accordance with the provisions of the preceding paragraph, Lessee may dispose
of such item of Equipment as soon as it is able to do so for the best price
obtainable. Any such disposition shall be on an "as is,
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Exhibit 10.8a
where is" basis without representation or warranty, express or implied save
those warranties which Lessee wishes to give. For each Item of Equipment so
disposed, Lessee may, after paying Lessor the amounts specified in the preceding
paragraph and other amounts required to be paid by Lessee pursuant to this Lease
with respect to such Item of Equipment, retain all of such sale proceeds.
The proceeds of insurance (if any) covering an Item of Equipment to which a
Casualty Occurrence has occurred shall be paid to and retained by Lessor to the
extent that Lessor has not previously received all Casualty Value and other
payments required to be made by Lessee pursuant to this Lease.
14. INSURANCE.
(a) Lessee will insure for the following risks with insurers of recognized
responsibility: (i) All risk of loss and physical damage (including earthquake
insurance) to the Equipment in amounts not less than the greater of the fair
market replacement value or the aggregate Casualty Value of all Equipment from
time to time and shall be subject to a deductible up to $250,000 per occurrence
(up to $2,000,000 deductible for earthquake insurance); (ii) comprehensive
public liability and property damage insurance with respect to the condition,
possession, maintenance, operation and use of the Equipment, in an amount not
less than $2,000,000 for each occurrence and shall be subject to a deductible up
to $250,000 per occurrence, provided that Lessee maintains the same insurance
deductible levels for all of its other equipment located in the same state the
Equipment is located.
(b) Lessee shall deliver to Lessor and any Assignee(s) a valid certificate of
insurance for each such insurance policy upon the execution thereof and a
certificate of insurance for each renewal policy not less than 30 days prior to
the expiration of the original policy or any renewal policy. Such insurance
shall (i) include as additional parties insured and loss payees Lessor and any
Assignee(s) of whom Lessee has notice, (ii) provide that such insurance shall
not be materially changed or cancelled without at least 30 days notice to Lessor
and such Assignees, and (iii) provide that such policy shall not be invalidated
by any negligence of, or breach of warranty by, Lessee. Upon the request of
Lessor, Lessee shall provide any additional data related to the insurance as
Lessor reasonably requests. Failure to have in force a policy of insurance as
required in section 14(a) shall be deemed an immediate Event of Default without
notice to Lessee.
15. INDEMNITY. Except as otherwise provided in this Section 15, Lessee will
protect, indemnify, save and hold harmless Lessor from and against all
liabilities, claims, damages, penalties, causes of action, costs, and expenses,
imposed upon or incurred by or asserted against Lessor or any Assignee of Lessor
by Lessee or any third party by reason of the occurrence or existence (or
alleged occurrence or existence) or any act or event relating to or caused by
the Equipment, including but not limited to, consequential or special damages of
any kind, or any failure on the part of Lessee to perform or comply with any of
the terms of this Lease. In the event that any action, suit or proceeding is
brought against Lessor by reason of such occurrence, Lessee, upon request of
Lessor, will at Lessee's expense resist and defend such action, suit or
proceeding or cause the same to be defended by counsel designated and approved
by Lessor, and Lessor shall reasonably cooperate with
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Exhibit 10.8a
Lessee in connection therewith.
Except as otherwise provided in this Section 15, Lessee shall indemnify Lessor
and any Assignee against, and hold Lessor and Assignee harmless from, any and
all claims, actions, damages, including reasonable attorneys' fees, obligations,
liabilities and liens (including any of the foregoing arising or imposed without
the fault or negligence of Lessee, or in connection with latent or other
defects, or any claim for patent, trademark or copyright infringement or under
the doctrine of "strict liability", imposed or incurred by or asserted against
Lessor or Assignee or their respective successors or assigns, arising out of the
manufacture, purchase, lease, possession, operation, condition, use or return of
the Equipment, or by operation of law. Lessee shall give Lessor and Assignee
prompt written notice of any matter hereby indemnified against and agrees that
upon written notice by Lessor or Assignee (as the case may be) of the assertion
of such a claim, action, damage, obligation, liability or lien, Lessee shall
assume full responsibility for the defense thereof.
This Section 15 shall not apply to liabilities, claims, damages, penalties,
causes of action, costs, or expenses (a) resulting from Lessor's or any
Assignee's bad faith, gross negligence or willful misconduct, (b) in respect of
a Tax (without prejudice to Section 16 hereof), (c) resulting from any Lessor
Lien or any breach of any Lessor's or any Assignee's representation, warranty or
covenant under the Lease, or any sale or other transfer by Lessor or any
Assignee of any portion of its interest in any Lease, except pursuant to Section
19 upon an Event of Default, (d) attributable to any period after the Equipment
is returned in accordance with the Lease, (e) arising under ERISA as a result of
Lessor's or any Assignee's activities, or (f) constituting an ordinary operating
expense or overhead charge except for incremental costs associated with this
transaction. This Section 15 shall survive termination of this Lease and any
Equipment Schedule.
16. TAX INDEMNITY.
(a) Lessee agrees to pay or reimburse Lessor for, and to indemnify and hold
Lessor harmless from, all fees (including, but not limited to, license,
documentation, recording and registration fees), and all sales, use, gross
receipts, personal property, occupational, value added or other taxes, levies,
imposts, duties, assessments, charges, or withholding of any nature whatsoever,
together with any penalties, fines, additions to tax, or interest thereon (all
of the foregoing being hereafter referred to as "Taxes") arising at any time
during the term of this Lease, or upon expiration or early termination of this
Lease and levied or imposed upon Lessor directly or otherwise by any federal,
state or local government in the United States upon or with respect to (1) the
Equipment, (2) the registration, purchase, ownership, delivery, leasing,
possession, use, operation, storage, maintenance, repair, return, sale, transfer
of title, or other disposition thereof, (3) the rentals, receipts, or earnings
arising from the Equipment, or any disposition of the rights to such rentals,
receipts, or earnings, (4) any payment pursuant to this Lease, (5) this Lease or
the transaction or any part thereof excluding, however, (i) Taxes based upon or
measured by Lessor's gross or net income (other than Taxes in the nature of
sales or use taxes) imposed or levied by the United States or any state thereof,
(ii) U.S. federal withholding Taxes unless Lessee is a United States Person as
defined in section 7701 of the Code; (iii) state or local Taxes on Lessor's
receipts, capital or franchise, (other than Taxes in the
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Exhibit 10.8a
nature of sales or use taxes); (iv) income or franchise Taxes imposed by any
jurisdiction in which Lessor is organized or doing business; (v) any Taxes
imposed as a result of the gross negligence or willful misconduct of Lessor;
(vi) any Taxes imposed as a result of a breach by Lessor of its obligations
under this Lease; (vii) any Taxes imposed as a result of a transfer of any Item
of the Equipment or any interest under the Lease by Lessor other than a sale or
other transfer (A) to Lessee, or (B) upon an Event of Default or Casualty
Occurrence; (viii) any Taxes imposed as a result of activities of Lessor
unrelated to the Lease; (ix) Taxes relating to any period after return of the
Equipment as required hereunder unless relating to a lien period during the term
of the Lease; (x) any Tax so long as it is being contested in accordance with
the terms of the Lease; and (xi) any Taxes that would not have been payable if
Lessor had issued an appropriate exemption or resale certificate.
(b) Lessee shall pay all personal property taxes indemnified under clause (a)
directly to the appropriate taxing authority in a proper timely manner if
required by applicable law and provide that its appropriate employees or agents
shall have knowledge of such obligation and fulfill such obligation. Lessee
shall provide to Lessor a properly completed Certificate Concerning Payment of
Personal Property Taxes as set forth in Exhibit C. If Lessee pays such Taxes for
Lessor's benefit then Lessee shall provide copies of all returns paid to Lessor
upon request. Under no circumstances shall Lessee remove or permit removal of
any Equipment from the Installation Site shown on the Equipment Schedule
therefor unless Lessee complies with the notice and financing statement
requirement set forth in Section 11.
(c) If any Items of Equipment are treated as sold by Lessee to Lessor and leased
back to Lessee, Lessee and Lessor shall cooperate to minimize any sales, use or
similar Taxes and interest and penalties thereon on any transfers of any Items
of Equipment. If Lessee acquires any Item of Equipment in a transaction
described in Cal Rev. & Tax Code Section 6010.65, Lessee shall provide to Lessor
notification that the Item of Equipment was placed into first functional use
within ninety (90) days of the Equipment Schedule Commencement Date and a
statement indicating that Lessee paid the applicable sales, use or similar Taxes
with respect to the Lessee's original purchase of the property in the form set
forth in Exhibit D.
(d) Lessee represents, warrants and covenants that (i) each Item of Equipment
will not be used predominantly outside of the United States within the meaning
of Section 168(1)(A) of the Code, (ii) each Item of Equipment will not become
"tax-exempt use property" within the meaning of Section 168(g)(1)(B) of the
Code, (iii) each Item of Equipment will not become "limited use property" within
the meaning of Rev. Proc. 2001-28 and 2001-29, (iv) the Lessee will not make
substantial non-severable improvements to any Item of Equipment unless required
to by law, (v) each Item of Equipment will be available for use by Lessee at all
times during the term of the Lease, and (vi) Lessee will not use any of the
Equipment in a manner that alters its MACRS class life.
(e) In entering into this Lease and the transactions contemplated hereby, the
Owner (hereinafter defined) assumed the following tax benefits in calculating
amounts of Basic Rent, Casualty Value and the Owner's after-tax return: (i) with
respect to each Item of Equipment, the Owner will be entitled to the benefit of
depreciation deductions for United States federal income tax purposes under
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Exhibit 10.8a
the modified accelerated cost recovery system method of depreciation ("MACRS")
based on the applicable MACRS class life (and with respect to each Item of
Equipment listed on Acceptance Certificate, the additional allowance provided by
Section 168(k) of the Code), and that the Owner will claim such deductions
utilizing the MACRS life of each Item of Equipment upon one hundred percent
(100%) of Lessor's Cost of each Item of Equipment using the half-year convention
(and in accordance with Section 168(k) of the Code with respect to each Item of
Equipment listed on Acceptance Certificate) ("Depreciation Deductions"); (ii)
for each year of the Term, the Owner's federal income Tax rate will be the
highest marginal rate for corporations provided for under the Code; and (iii)
the Owner will not be required to include in income any amounts with respect to
the Lease other than Basic Rent and amounts constituting gain upon payment of
Casualty Value and any amounts designated as interest or required to be paid on
after-tax basis pursuant to the term of this Lease. If as a result of (1) any
breach of any representation, warranty or covenant in the Lease by Lessee, (2)
any act or failure to act by Lessee (except as required under the Lease), (3)
any loss, damage, casualty, or taking, or (4) the failure of any Item of
Equipment listed on Acceptance Certificate to constitute "qualified property"
for purposes of Section 168(k) of the Code, the Owner does not have the right to
claim, or loses the right to claim, or if there is disallowed or recaptured with
respect to the Owner, all or any portion of the Depreciation Deductions or if
the Owner is required to include any amount in income other than as set forth in
clause (iii) above with respect to an Item of Equipment (such loss of deductions
or inclusion in income, a "Tax Loss"), then Lessee must, subject to contest
rights, within 30 days of demand, make a lump sum payment to preserve the
Owner's after-tax yield. Lessee shall not be liable for a Tax Loss arising as a
result of (A) an event obliging Lessee to pay Casualty Value provided Casualty
Value is paid, (B) a change in the Code or the regulations thereunder, (C) the
Lease not qualifying as a "true lease" unless as a result of an event in clauses
(1) through (4) above, or (C) a voluntary transfer by the Owner except upon an
Event of Default. For purposes of this Article, the term "Owner" shall mean
Lessor and any owner of the Equipment (whether such owner holds title to the
Equipment directly or through an agent or trustee) and such term shall be deemed
to include any individual who is a partner of or an affiliated corporation of
any such Owner and any Assignee of any thereof.
(f) Provided that no Event of Default has occurred and is continuing, Lessee
shall be provided with a reasonable opportunity to contest any claim or
adjustment that may result in a Tax Loss or a claim for indemnified Taxes so
long as (i) Lessee shall provide notice of such contest to Lessor (after itself
having received notice of such Tax) and pay all costs and expenses associated
with such contest, (ii) the continuation of such contest shall not in Lessor's
reasonable judgment involve any risk of the sale, forfeiture or loss of the Item
of Equipment or interest therein; provided, however, if such risk exists, Lessee
shall have posted a bond, or provided other comparable security for the full
amount of such Taxes, with the amount and form of such bond or comparable
security satisfactory to Lessor, (iii) Lessee shall provide an opinion of
counsel satisfactory to Lessor that there is a reasonable basis for the
prosecution of such contest, and (iv) there is no risk of imposition of any
criminal liability on Lessor. Lessor shall, at Lessee's expense, reasonably
cooperate with any such contest. If, in connection with any such contest, a
payment of the contested Tax must be made, Lessee shall be responsible for such
Tax payment.
11
Exhibit 10.8a
17. RETURN PROVISIONS. Upon the expiration of any Equipment Schedule, Lessee, at
Lessee's cost and expense, shall promptly effect an audited deinstallation of
the Equipment under the supervision of the manufacturer or the manufacturer's
authorized representative, or such other person as is reasonably acceptable to
Lessor (in either case the "Supervising Party").
Lessee shall return to Lessor the Equipment leased pursuant to such Equipment
Schedule (the "Returned Equipment"), free of all advertising or insignia placed
thereon by Lessee (other than advertising or insignia placed upon the Equipment
by Lessee at the request of Lessor) and free and clear of all liens or
encumbrances of Lessee's creditors or other persons having claims against or
otherwise claiming through Lessee (in each case other than Lessor's Liens) and
in such condition, repair and working order as when accepted by Lessee, ordinary
wear and tear excepted. The Returned Equipment shall, at Lessee's expense, be
returned to Lessor, properly packed and crated, at such location within the
continental United States as Lessor shall designate to Lessee, accompanied by
(a) if applicable to such Returned Equipment a current standard maintenance
agreement at Manufacturer's then - current engineering change levels and (b) all
inspection, maintenance, modification and all overhaul records and maintenance
agreements applicable thereto.
In the event as a result of Lessee's failure to comply with the provisions of
the above two paragraphs hereof Lessee shall not have effected return of the
Equipment in all material respects as provided therein, in addition to all other
rights and remedies available to Lessor hereunder, Lessor shall have the right
to extend the term of the applicable Equipment Schedule (but respect to the
affected Equipment only) through the last day of the month on which, at the sole
discretion of Lessee, (i) Lessee has cured such noncompliance with respect to
the applicable Equipment, or (ii) Lessee has paid Lessor an amount equal to the
loss in fair market value of such Equipment due to such noncompliance; provided,
however, the exercise by Lessor of such right shall not be deemed a waiver by
Lessor of any other right or remedy available to Lessor hereunder.
18. ASSIGNMENT. Lessor shall have the right upon prior written notice to Lessee,
which notice Lessee shall acknowledge at Lessor's request, but subject to
Lessee's right of quiet enjoyment and use of the Equipment, (a) to assign
Lessor's rights and interests in any Equipment Schedule to one or more persons
who may subsequently assign such interests and rights to another person, each of
such persons being referred to as an "Assignee", and to grant, or cause, or
permit an Assignee to grant, a first security interest in the Equipment covered
by such Equipment Schedule, and (b) to sell (subject to this Lease and Lessor's
obligations hereunder) one or more items of Equipment to one or more persons who
may subsequently sell such Items to another, each of such persons and
transferees being included in the term Assignee; provided, however, that Lessor
shall not, without the prior written consent of Lessee, assign, convey, or
transfer any of Lessor's right or interest in any Equipment Schedule to a person
who is, or who Lessee advises Lessor is, a competitor of Lessee, or to a person
that is, or who Lessee advises Lessor is, actively opposed to the business or
businesses in which Lessee or any affiliate of Lessee is engaged;
notwithstanding the foregoing, Lessor or any Assignee may without notice to or
approval of Lessee, assign its rights and interests in any Equipment Schedule to
any subsidiary or affiliate or in conjunction with any portfolio sale,
securitization financing or similar financing structure or conduit.
12
Exhibit 10.8a
In the event of any such sale or assignment or grant of a security interest
(together, "Transfer"), to the extent agreed upon by Lessor and such Assignee,
each Assignee shall succeed to all rights of Lessor under the Equipment so
assigned to the extent specified herein, but no Assignee shall be obligated to
perform any obligation of Lessor under the Equipment Schedule so sold or
Transferred (except to lease to Lessee the Items of Equipment described on each
Equipment Schedule and to not disturb Lessee's quiet and peaceful possession and
use of such Equipment for its intended purpose except in the event of a default
as provided herein, including in Sections 6 and 19 hereof), and Lessee shall
recognize each such Transfer and shall not assert against any such Assignee any
claim, defense, counterclaim or offset whatsoever, whether by reason of Lessor's
breach of such Equipment Schedule or otherwise, which Lessee may or might now or
hereafter have against Lessor; provided, however, Lessee reserves the right to
have recourse directly against Lessor on account of any such claim, defense,
counterclaim or offset, but Lessee shall not be released from its obligations to
pay to such Assignee the Basic Rent and any additional sums that may be required
by the provisions of this Lease or such Equipment Schedule.
As a condition to any Transfer, (a) any person to whom such Transfer is made
shall expressly covenant with Lessor that so long as Lessor has not given notice
(or been deemed to have given notice) of an Event of Default pursuant to Section
19 in respect of the Equipment Schedule subject to such Transfer, neither such
person nor anyone acting at such persons direction, shall disturb Lessee's quiet
and peaceful possession and use of such Equipment for its intended purpose, and
(b) no such Transfer shall require Lessee to pay Basic Rent or any other amount
to more than one person with respect to any Equipment Schedule. Upon reasonable
notice, Lessee shall from time to time provide each person designated by Lessor
as a prospective Assignee with such information in respect of an Equipment
Schedule as such person so designated shall reasonably request, including but
not limited to the number (and amount) of Basic Rent payments made and remaining
to be made under such Equipment Schedule, the location of the Equipment and
whether such Equipment Schedule remains in full force and effect.
Lessee acknowledges that Lessor intends to enter into each Equipment Schedule in
anticipation of being able to effect a Transfer of its interest thereunder and
that the Assignee will be acting in reliance upon and be entitled to the
benefits of this Section. Accordingly, Lessee agrees that, after notice of such
Transfer, Lessee will not permit such Equipment Schedule or this Lease (to the
extent it applies to such Equipment Schedule) to be amended or waived without
the prior written consent of the Assignee and promptly shall pay to Assignee,
when due, the Basic Rent and any other payments that thereafter will become due
to Lessor under such Equipment Schedule.
Lessee may not voluntarily or involuntarily transfer (including without
limitation a transfer by assignment, sale or sublease) any Item of Equipment or
any Equipment Schedule or any interest of Lessee in any such Item of Equipment
or Equipment Schedule without the prior written consent of Lessor and Assignee,
except that Lessee may, with the prior written consent of Lessor and Assignee,
sublease any item of Equipment or assign any Equipment Schedule to a corporation
or other entity all of the stock or equity interest of which is owned by Lessee
and during the term of such Equipment
13
Exhibit 10.8a
Schedule continues to be owned by Lessee. No sublease or assignment shall in any
way relieve Lessee of its obligations hereunder.
19. DEFAULT. The occurrence of any of the following shall constitute an "Event
of Default":
(a) Lessee fails to pay all or any portion of any installment of Basic Rent
within 5 days of the date such sum becomes due and payable, or fails to make any
other payment when due, taking into account any applicable notice or grace
period; or
(b) Any representation or warranty made in this Lease, or in any report,
certificate, financial statement, or other statement furnished to Lessor or any
Assignee pursuant to the provisions of this Lease proves to have been false in
any material respect as of the date on which the same was made; or
(c) Lessee fails or refuses to duly observe or perform any other covenant,
condition, or agreement made by it in this Lease and, except as specifically set
forth in Section 14, such failure or refusal continues without remedy for a
period of 15 days after written notice thereof to the Lessee (provided, however,
that any such non-observance or non-performance which, in the exercise of due
diligence, cannot be cured within such 15 day period shall not be deemed an
Event of Default so long as Lessee shall within such period commence and
thereafter continue diligently to cure such non-observance or non-performance)
provided, however, Lessee's due diligence to the contrary, any non-observance or
non-performance by Lessee of any covenant, condition or agreement in this Lease
which remains uncured for seventy-five (75) days after the initial notice
thereof to Lessee shall be deemed to be an Event of Default, or
(d) An attachment or other lien against the Equipment resulting from any Lessee
action or failure to act (other than a Permitted Lien or Lessor Lien) is issued
or entered and remains undischarged or unbonded for 15 days after notice thereof
from Lessor to Lessee, unless the Equipment is at risk of imminent foreclosure
or seizure which shall instead constitute an immediate Event of Default; or
(e) Lessee or any guarantor shall file a voluntary petition in bankruptcy or a
voluntary petition or answer seeking liquidation, administration,
reorganization, arrangement, readjustment of its debts, or for any other relief
under the Bankruptcy Code, or under any other act or law pertaining to
insolvency or debtor relief, whether state, federal, or foreign, now or
hereafter existing; or Lessee or any guarantor shall enter into any agreement
indicating its consent to, approval of, or acquiescence in, any such petition or
proceeding; or Lessee or any guarantor shall apply for or permit the appointment
by consent or acquiescence of a receiver, custodian administrator, or trustee
for all or a substantial part of its property; or Lessee or any guarantor shall
make an assignment for the benefit of creditors; or Lessee or any guarantor
shall be unable or shall fail to pay its debts generally as such debts become
due; or Lessee or any guarantor shall admit, in writing, its inability or
failure to pay its debts generally as such debts become due; or
(f) There shall have been filed against Lessee or any guarantor an involuntary
petition in
14
Exhibit 10.8a
bankruptcy or seeking liquidation, administration, reorganization, arrangement,
readjustment of its debts or for any other relief under the Bankruptcy Code, or
under any other act or law pertaining to insolvency or debtor relief, whether
state, federal or foreign, now or hereafter existing, or Lessee or any guarantor
shall suffer or permit the appointment of a receiver, custodian, administrator,
or trustee for all or a substantial part of its property; or Lessee or any
guarantor shall suffer or permit the issuance of a warrant of attachment,
diligence, execution or similar process against all or any substantial part of
its property; unless, in each case, such petition, appointment or process is
fully bonded against, vacated or dismissed within sixty (60) days from its
effective date, but not later than ten (10) days prior to any proposed
disposition of any assets pursuant to any such proceeding;
(g) The occurrence of any default in the payment or performance, and the
subsequent acceleration, of any debt or other obligations (including, but not
limited to, lease obligations or any corporate guaranty) owed by Lessee or any
guarantor to any other persons or entities unaffiliated with Lessor with an
outstanding principal balance in excess of $5,000,000 in the aggregate, whether
now or hereafter existing; or
(h) There shall be a change in the beneficial ownership and control, directly or
indirectly, of the majority of the outstanding voting securities or other
interests entitled (without regard to the occurrence of any contingency) to
elect or appoint members of the board of directors or other managing body of
Lessee or any guarantor (a "change of control"), or there is any merger,
consolidation, dissolution, liquidation, winding up or sale or other transfer of
all or substantially all of the assets of Lessee or any guarantor pursuant to
which there is a change of control or cessation of Lessee or any guarantor or
their businesses.
If an Event of Default occurs and is continuing under this Lease, Lessor may
give Lessee written notice of the Event of Default (except after the occurrence
of an Event of Default under Section 19(e) or 19(f) hereof, in which event such
notice shall be deemed to have been given without any act by Lessor) and, upon
giving of such notice or at any time thereafter, at the request of Lessor,
Lessee shall comply with the provisions of this section and agrees with the
following remedies. Lessee hereby authorizes Lessor to enter, with or without
legal process, any premises where any Equipment is located and take possession
thereof. Lessee shall, without further demand, forthwith pay to Lessor (i) as
liquidated damages for loss of a bargain and not as a penalty, the Casualty
Value of the Equipment (calculated in accordance with the Equipment Schedule as
of the Rent Payment Date next preceding the declaration of default), and (ii)
all Rent and other sums then due (except on such Rent Payment Date) hereunder.
Lessor may, but shall not be required to, sell the Equipment at private or
public sale, in bulk or in parcels, with or without notice, and without having
the Equipment present at the place of sale; or Lessor may, but shall not be
required to, lease, otherwise dispose of or keep idle all or part of the
Equipment; and Lessor may use Lessee's premises for any or all of the foregoing
without liability for Rent, costs, damages or otherwise. The proceeds of sale,
lease or other disposition, if any, shall be applied in the following order of
priorities: (1) to pay all of Lessor's costs, charges and expenses incurred in
taking, removing, holding, repairing and selling, leasing or otherwise disposing
of Equipment; then, (2) to the extent not previously paid by Lessee, to pay
Lessor all sums due from Lessee hereunder; then, (3) to reimburse to Lessee any
sums previously
15
Exhibit 10.8a
paid by Lessee as liquidated damages; and (4) any surplus shall be retained by
Lessor. Lessee shall pay any deficiency in clauses (1) and (2) forthwith.
In addition to the foregoing rights, Lessor may, by written notice to Lessee,
cancel the lease as to any or all of the Equipment.
The foregoing remedies are cumulative, and any or all thereof may be exercised
in lieu of or in addition to each other or any remedies at law, in equity, or
under statute. Lessee waives notice of sale or other disposition (and the time
and place thereof), and the manner and place of any advertising. If permitted by
applicable law, Lessee shall pay reasonable attorney's fees actually incurred by
Lessor in enforcing the provisions of this Agreement and any ancillary
documents. Waiver of any default shall not be a waiver of any other or
subsequent default.
20. LATE PAYMENTS. A late payment charge at the Overdue Rate shall be paid by
Lessee to Lessor on all funds owed Lessor by Lessee that are not paid when due,
subject to any notice requirements or grace periods hereunder. If such funds
have not been received by Lessor at Lessor's place of business or by Lessor's
Assignee by the date such funds are due under this Lease, Lessor shall xxxx
Lessee for such charges which will be due in accordance with Section 5(d);
failure of Lessor to xxxx Lessee shall not relieve Lessee of its obligation to
pay such amounts.
21. OWNERSHIP, PERSONAL PROPERTY. The Equipment shall be and remain personal
property of Lessor, and Lessee shall have no right, title or interest therein or
thereto except as expressly set forth in this Lease, notwithstanding the manner
in which it may be attached or affixed to real property, and upon termination or
expiration of the Lease Term, Lessee shall have the duty and Lessor shall have
the right to remove the Equipment from the premises where the same be located
whether or not affixed or attached to the real property or any building, at the
cost and expense of Lessee.
In order to secure the prompt payment and performance as and when due of all of
Lessee's obligations (both existing and hereafter arising) under the Equipment
Schedule, Lessee shall be deemed to have granted, and it hereby grants, to
Lessor a first priority security interest in the Equipment now and hereafter
leased pursuant to the Equipment Schedule and all replacements, substitutions,
improvements, additions, accessions, and proceeds (cash and non-cash; but
without power of sale), including the proceeds of all property insurance
policies, thereof; and Lessee agrees that with respect to the Equipment, in
addition to all of the other rights and remedies available to Lessor hereunder
upon the occurrence of a default, Lessor shall have all of the rights and
remedies of a first priority secured party under the Uniform Commercial Code in
effect in any applicable jurisdiction. Lessee hereby authorizes Lessor to file
Uniform Commercial Code financing statements and amendments thereto describing
the Equipment described in the Equipment Schedule and adding any other
collateral described therein and containing any other information required by
the applicable Uniform Commercial Code. Further, Lessee irrevocably grants to
Lessor the power to sign Lessee's name and generally to act on behalf of Lessee
to execute and file financing statements and other documents pertaining to any
or all of the Equipment.
16
Exhibit 10.8a
22. ALTERATIONS; ATTACHMENTS. Lessee may, at its own expense and upon prior
notice to Lessor, make or permit others to make Equipment alterations,
modifications, or additions, provided such alterations, modifications, or
additions are readily removable without causing material damage to or reducing
the value of the Equipment, do not interfere with the maintenance thereof, do
not create a safety hazard, and are not subject to any security interest, rent,
or other right or claim held or retained by a third party unless such third
party acknowledges that Lessor's interest in the Equipment is in all ways
superior to that of the third party. Such alterations, modifications, and
additions may be removed by Lessee at the expiration or earlier termination of
the Term (including any extensions), and shall be removed at such time if so
requested by Lessor. The cost of such removal and the restoration of the
Equipment to the same condition as when new (ordinary wear and tear excepted)
shall be borne by Lessee. Any such alterations, modifications, and additions
which are not removed by Lessee shall become the property of Lessor.
23. JURY TRIAL: LESSEE AND LESSOR EACH HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF,
DIRECTLY OR INDIRECTLY, THIS LEASE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS
BETWEEN LESSEE AND LESSOR RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR
ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED
BETWEEN LESSEE AND LESSOR. The scope of this waiver is intended to be all
encompassing of any and all disputes that may be filed in any court (including,
without limitation, contract claims, tort claims, breach of duty claims, and all
other common law and statutory claims). THIS WAIVER IS IRREVOCABLE MEANING THAT
IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
LEASE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING
TO THIS TRANSACTION OR ANY RELATED TRANSACTION. In the event of litigation, this
Agreement may be filed as a written consent to a trial by the court.
24. MISCELLANEOUS: (a) Lessee shall provide Lessor with such corporate
resolutions, financial statements, opinions of counsel and other documents as
Lessor shall request from time to time.
(b) Lessee represents that the Equipment is being leased hereunder for business
purposes.
(c) Time is of the essence with respect to this Lease.
(d) Provided neither Lessee nor any guarantor is required to file regular
periodic reports, forms and other filings with the Securities and Exchange
Commission, including (without limitation) Forms 8K, 10K and 10Q, Lessee or its
guarantor shall promptly within 60 days of the end of each fiscal quarter (other
than the fourth fiscal quarter) deliver to Lessor copies of guarantors quarterly
unaudited financial statements and within 120 days after the end of each fiscal
year deliver to Lessor
17
Exhibit 10.8a
copies of guarantors annual audited financial statements, including the opinion
of the auditor. Upon reasonable request by Lessor, Lessee shall promptly within
60 days of the end of each fiscal quarter deliver to Lessor copies of its
unaudited quarterly financial statements.
25. NOTICES. All notices hereunder shall be in writing, by such overnight
courier service as either party may choose, and shall be directed, as the case
may be, to Lessor at 0 Xxxxxx Xx., Xxxxxxxxx, XX 00000 and to Lessee at 000
Xxxxx Xxxx Xxxxx Xxxxx, Xxxxxxx, XX 00000, Attn: Xxxxxx Xxxxxxx, or to such
other address as Lessor or any Assignee may specify by like notice and shall be
effective on the earlier of three days after mailing or upon receipt.
26. ENTIRE AGREEMENT. Lessee acknowledges that Lessee has read this Lease,
understands it and agrees to be bound by its terms, and further agrees that this
Lease and each Equipment Schedule and Equipment Acceptance constitute the entire
agreement between Lessor and Lessee with respect to the subject matter hereof
and supersede all previous agreements, promises, or Lessor representations. The
terms and conditions hereof shall prevail notwithstanding any variance with the
terms of any purchase order submitted by Lessee with respect to any Equipment
covered hereby.
27. ARTICLE 2A. This Lease constitutes a "finance lease" within the meaning of
Article 2A of the Uniform Commercial Code, whether or not each requirement of
the definition thereof has been strictly or technically met.
28. AMENDMENT. This Lease may not be changed, altered, or modified except by an
instruments in writing signed by an officer of Lessor and a duly authorized
representative of Lessee.
29. WAIVER. Any failure of either party to require strict performance by the
other or any waiver by either party of any provision herein shall not be
construed as a consent or waiver of any other breach of the same or any other
provision.
30. SEVERABILITY. If any provision of this Lease is held invalid, such
invalidity shall not affect any other provisions hereof.
31. JURISDICTION. The Lease shall be governed by and construed under the laws of
the State of Illinois.
32. CONFLICT. Should there be terms or conditions within the Equipment Schedule
which conflict with this Master Equipment Lease, the terms of the Equipment
Schedule will be binding.
33. SURVIVAL. All representations, warranties, indemnities and covenants of
Lessee contained in this Lease or any Equipment Schedule shall continue in full
force and effect and shall survive notwithstanding the full payment of all
amounts due hereunder or the expiration or earlier termination of this Lease or
any Equipment Schedule.
18
Exhibit 10.8a
34. BINDING EFFECT. This Lease shall be binding upon and inure to the benefit of
the respective successors and permitted assigns of Lessor and Lessee.
WITNESS the execution hereof under seal this 22nd day of December, 2003
The Xxxxxx Asset Group, LLC Playboy Entertainment Group, Inc.
(LESSOR) (LESSEE)
BY: /s/ Xxxxx X. Xxxxxx BY: /s/ Xxxxxx X. Xxxxxxxx
------------------------------- ----------------------------------
NAME: Xxxxx X. Xxxxxx NAME: Xxxxxx X. Xxxxxxxx
----------------------------- --------------------------------
TITLE: Chief Operating Officer TITLE: Treasurer and Asst. Secretary
---------------------------- -------------------------------
19
Exhibit 10.8a
EXHIBIT A
Equipment Schedule
See attached
20
Exhibit 10.8a
EXHIBIT B
Acceptance Certificate
See attached
21
Exhibit 10.8a
EXHIBIT C
Certificate Concerning Payment of Personal Property Taxes
See attached
22
Exhibit 10.8a
EXHIBIT D
See attached
23
