Exhibit (10)(o)
FINOVA Capital Corporation
10 Waterside Drive
Farmington, Connecticut 06032-3065
(860) 676-1818
MASTER LEASE AGREEMENT No. S7970, Dated August 28, 2000, ("Lease")
FINOVA Capital Corporation ("we", "us" or "FINOVA"), having its principal
place of business at FINOVA Corporate Center, 4800 North Scottsdale Road,
Scottsdale, Arizona 85251, agrees to lease to LifePoint, Inc. ("you" or
"Lessee") and you agree to lease from us, the equipment ("Equipment")
described in any schedule to this Lease (a "Schedule"). The Equipment also
includes any replacement parts, repairs, additions and accessories that you
may add to the Equipment. We may treat any Schedule as a separate lease
containing all of the provisions of this Lease.
1. PURCHASING AND INSTALLING THE EQUIPMENT.
We will purchase the Equipment from the Supplier you chose. The Supplier will
deliver the Equipment to you at your expense. You will properly install the
Equipment at your expense at the location(s) indicated in the Schedule.
2. TERM.
(a) The Term of each Schedule begins when any of the Equipment on that Schedule
is delivered to you, or a later date that we agree to in writing.
(b) The Term continues until you fully perform all of your obligations under
this Lease and the Schedule.
(c) If the Equipment is not delivered, installed and accepted by you by the
Expiration Date indicated in the Schedule, we may terminate this Lease and
the Schedule as to the Equipment that was not delivered, installed and
accepted by giving you 10 days written notice of termination.
(d) As additional security you shall for the full term of the Lease place
$900,000 in the name of FINOVA in an interest bearing Money Market account
of a financial institution acceptable to FINOVA. Provided that there is no
event of default the entire account balance shall be released (a) upon
receipt of non-debt cash of not less than $5,000,000.00 or (b) $600,000 of
the account balance shall be released upon execution of a Strategic
Partnership agreement and cumulative receipt of non-debt cash for the
partner(s) of not less than $2,000,000. The remaining $300,000 of the
account balance shall be released upon the execution of a second Strategic
Partnership agreement and cumulative receipt of an additional $2,000,000.00
non-debt cash.
(e) Before we make any progress payment or final payment for the Equipment on
any Schedule, we require the following:
(1) That no payment is past due to us under any lease, loan or
other financial arrangement that you have with us.
(2) That you are complying with all the terms of this Lease.
(3) That we have received all the documents we requested,
including the signed Schedule and Delivery and Acceptance Certificate.
(4) That there has been no material adverse change in your
financial condition, business or operations, or that of any guarantor,
from the condition that you disclosed to us.
3. RENT.
(a) The rent is indicated on the Schedule. The rent is payable periodically in
advance from time to time (for example, monthly). You agree that you owe us
the total of all of these rent payments over the Term of the Schedule.
(b) The first rent payment is due at the beginning of the Term or at a later
date that we agree to in writing. Subsequent rent payments are due on the
same day of each successive period until you pay us in full all of the rent
and any other charges or expenses you owe us.
(c) If the first rent payment is due later than the beginning of the Term, you
will also pay us interim rent on the first rent payment date. The interim
rent will be for the period from the beginning of the Term until the date
that the first rent payment is due. Interim rent will be calculated at the
same rate as the regular rent payment, but on a daily basis for the number
of days for which interim rent is due, based upon a 30 day month.
(d) YOUR OBLIGATION TO PAY US ALL RENT IS ABSOLUTE AND UNCONDITIONAL. YOU ARE
NOT EXCUSED FROM PAYING THE RENT, IN FULL, FOR ANY REASON. YOU AGREE THAT
YOU HAVE NO DEFENSE FOR FAILURE TO PAY THE RENT AND YOU WILL NOT MAKE ANY
COUNTERCLAIMS OR SETOFFS TO AVOID PAYING THE RENT.
4. NON-CANCELABLE LEASE. YOU AGREE THAT YOU MAY NOT CANCEL OR TERMINATE THIS
LEASE OR ANY SCHEDULE.
5. PROTECTION OF OUR INTEREST IN THE EQUIPMENT; FEES.
(a) The Equipment is our property. It will remain our property. You will not
own the Equipment unless the Schedule gives you an option to purchase the
Equipment and you have exercised that option and paid us in full for the
Equipment and any other amounts you may owe us. If we request, you will put
labels stating "PROPERTY OF FINOVA" on the Equipment where they are clearly
visible.
(b) You give us permission to add to this Lease or any Schedule the serial
numbers and other information about the Equipment.
(c) While this Lease is intended to be a lease (and not a loan), to secure all
of your now existing or hereafter arising obligations to us, you grant us a
security interest in the Equipment (and all accessions and additions
thereto, substitutions for and replacements of the Equipment) and all
proceeds of the foregoing, including, without limitation, insurance
proceeds, to protect our interest in the Equipment if this Lease is later
determined to be a security agreement. This security interest will be a
first security interest and there will be no other security interests
covering the Equipment. You give us permission to file this Lease or
Uniform Commercial Code financing statements, at your expense, in order to
perfect this security interest. You also give us permission to sign your
name on the Uniform Commercial Code financing statements where this is
permitted by law.
(d) You will pay our fees and costs for documentation, closing, administration
and termination of this Lease. These fees include such items as reasonable
attorneys fees and expenses incurred in preparing this Lease and all
amendments, supplements and waivers hereto, as well as due diligence
searches and fees for preparing and filing UCC terminations and releases.
You will also pay any filing, recording or stamp fees or taxes resulting
from filing this Lease or Uniform Commercial Code financing statements.
(e) At your expense, you will defend our ownership rights in the Equipment
against, and keep the Equipment free of, any legal process, liens, security
interests, attachments, levies and executions. You will give us immediate
written notice of any legal process, liens, attachments, levies or
executions, and you will indemnify us against any loss that results to us
from these causes.
(f) You will notify us at least 15 days before you change the address of your
principal executive office.
(g) You will notify us at least 15 days before you change your state of
incorporation.
(h) You will promptly sign and return additional documents that we may request
in order to protect our interest in the Equipment.
(i) The Equipment is personal property and will remain personal property. You
will not incorporate it into real estate and will not do anything that will
cause the Equipment to become part of real estate or a fixture. Leasehold
improvements will be capped at $500,000.00.
6. CARE, USE, LOCATION AND ALTERATION OF THE EQUIPMENT.
(a) You will make sure that the Equipment is maintained in good operating
condition, and that it is serviced and repaired when this is necessary to
keep the Equipment in good operating condition. All maintenance must be
done according to the Supplier's or Manufacturer's requirements or
recommendations. All maintenance must also comply with any legal or
regulatory requirements.
(b) You will maintain service logs for the Equipment, if applicable, and permit
us and our agents to inspect the Equipment, the service logs and service
reports. You give us and our agents permission to make copies of the
service logs and service reports.
(c) We will give you prior notice if we, or our agents, want to inspect the
Equipment or the service logs or service reports. We may inspect it during
regular business hours. If we find during an inspection that you are not
complying with this Lease or if you are otherwise in default under this
Lease, you (and not us) will pay our travel, meals, and lodging costs, our
salary costs, and our costs and fees and those of our agents for
reinspection. You will promptly cure any problems with the Equipment that
are discovered during our inspections.
(d) You will use the Equipment only for business purposes. You will obey all
legal and regulatory requirements in your use of the Equipment.
(e) You will make all additions, modifications and improvements to the
Equipment that are required by law or government regulation. Otherwise, you
will not alter the Equipment without our written permission. You will
replace all worn, lost, stolen, or destroyed parts of the Equipment with
replacement parts that are as good or better than the original parts. The
new parts will become our property upon replacement.
(f) You will not remove the Equipment from the location indicated in the
Schedule.
(g) You will not convey, assign, sell, mortgage, transfer, encumber, pledge,
hypothecate, grant a security interest in, grant options with respect to,
lease or otherwise dispose of all or any part of any interest whatsoever in
or to any or all of the Equipment or the location indicated in the Schedule,
or any interest therein.
7. RETURN OF EQUIPMENT. Unless otherwise stated in the Schedule:
(a) You must give us written notice at least 120 days before the end of the
Term if you want to purchase the Equipment from us (assuming the Schedule
provides you with an option to purchase the Equipment).
(b) You must give us written notice at least 120 days before the end of the
Term if you want to return the Equipment to us.
(c) If you do not give us written notice at least 120 days before the end of
the Term either that you want to purchase or that you want to return the
Equipment, you will continue to rent the Equipment and this Lease and the
Schedule will be automatically extended until 120 days after we receive your
notice. The rent will be fair market rental value of the Equipment, as
determined by us. Unless we notify you otherwise, the fair market rental
value will not exceed the rent then being charged under this Lease and the
Schedule.
(d) If you do give us 120 days written notice that you want to purchase the
Equipment but you do not pay us the purchase price, you will continue to
rent the Equipment. The rent will be the fair market rental value of the
Equipment, as determined by us. You will continue to pay us this rent until
you have paid the Fair Market Value purchase price for the Equipment.
(e) If you do give us 120 days written notice that you want to return the
Equipment to us, but you do not return the Equipment in compliance with the
return conditions contained in the next paragraph, you will continue to rent
the Equipment. The rent will be the fair market value of the Equipment, as
determined by us. You will continue to pay us this rent until you have
returned the Equipment to us in compliance with these return conditions.
(f) Return conditions: - You will return the Equipment, freight and insurance
prepaid by you, to us at a location we request in the United States of
America. It will be returned in good operating condition, as required by
Section 6 above. The Equipment will not be subject to any liens when it is
returned, and
(1) You will pack or crate the Equipment for shipping in the original
containers, or comparable ones. You will do this carefully and follow all
recommendations of the Supplier and the Manufacturer as to packing or
crating.
(2) You will also return to us the plans, specifications, operating
manuals, software documentation, discs, warranties and other documents
furnished by the Manufacturer or Supplier. You will also return to us all
service logs and service reports, as well as all written materials that you
may have concerning the maintenance and operation of the Equipment.
(3) At our request, you will provide us with up to 60 days free storage of
the Equipment at your location, and will let us (or our agent) have access
to the Equipment in order to inspect it, display it to others for purchase
and sell it.
(4) You will pay us what it costs us to repair the Equipment if you do not
return it in the required condition.
8. RISK OF LOSS.
(a) You have the complete risk of loss or damage to the Equipment. Loss
or damage to the Equipment will not relieve you of your obligation to
pay rent.
(b) If any Equipment is lost or damaged, you have two choices (although if
you are in default under this Lease, we and not you will have the two
options).
The choices are:
(1) Repair or replace the damaged or lost Equipment so that, once
again, we own Equipment in good operating condition and have clear
title to it.
(2) Pay us the present value (as of the date of payment) of the
remaining rent payments and our residual interest in the Equipment.
We will calculate the present value using a discount rate of five (5%)
percent per year. Once you have paid us this amount and any other
amount that you may owe us, you (or your insurer) may keep the
Equipment for salvage purposes, on an "AS IS, WHERE IS" basis.
9. INSURANCE.
(a) Until you have properly returned the Equipment to us, you will keep it
insured. The amount of the insurance, the coverage, and the insurance
company must be acceptable to us.
(b) If you do not provide us with written evidence of insurance that is
acceptable to us, we may buy the insurance ourselves, at your expense.
You will promptly pay us the cost of this insurance. We have no
obligation to purchase any insurance. Any insurance that we purchase
will be our insurance, and not yours, and we may insure the Equipment
beyond the end of the Term.
(c) Insurance proceeds may be used to repair or replace damaged or lost
Equipment or to pay us the present value of the rent and our residual
interest in the Equipment. (See Section 8, "Risk of Loss", above).
(d) You appoint us as your "attorney-in-fact" to make claims under the
insurance policies, to receive payments under the insurance policies,
and to endorse your name on all documents, checks or drafts relating
to insurance claims for Equipment.
10. TAXES.
(a) You will pay all sales, use, excise, stamp, documentary and ad valorum
taxes, license and registration fees, assessments, fines, penalties
and similar charges imposed on the ownership, possession, use or lease
of the Equipment.
(b) You will pay all taxes (other than our federal or state net income
taxes) imposed on you or on us or the rent payments.
(c) You will reimburse us for any of these taxes that we pay or advance.
(d) Unless we notify you otherwise, we will file and pay for any personal
property taxes on the Equipment. You will reimburse us for the full
amount of these taxes, without regard to early payment discount. We
may estimate the amount of these taxes in advance and bill you
periodically in advance for these taxes.
11. INDEMNITY.
(a) You will indemnify us, defend us and hold us harmless. This applies
to any and all claims, expenses and attorney's fees concerning or
arising from the Equipment, this Lease, or any Schedule. It includes
any claims concerning the manufacture, selection, delivery,
possession, use, operation or return of the Equipment.
(b) This obligation of yours to indemnify us continues even after the Term
is over.
12. DEFAULT.
You are in default if any of the following happens:
(a) You do not pay us, when it is due, any rent payment or other payment
that you owe us under this Lease, any Schedule, or any other lease,
loan or other financial arrangement that you have with us.
(b) Any of the financial information that you give us is not true and
complete, or you fail to tell us anything that would make the
financial information not misleading.
(c) You do something you are not permitted to do, or you fail to do
anything that is required of you, under this Lease, any Schedule or
any other lease, loan or other financial arrangement that you have
with us which is not cured within 15 days.
(d) An event of default occurs under any other lease, loan or obligation
of yours that exceeds $50,000 in the aggregate.
(e) You file bankruptcy, or involuntary bankruptcy is filed against you
and such involuntary bankruptcy is not dismissed within 90 days.
(f) You are subject to any other insolvency proceeding other than
bankruptcy (for example, a receivership action or an assignment for
benefit of creditors) and such proceeding that is involuntary is not
dismissed within 60 days.
(g) Without our permission, you sell all or a substantial part of its
assets, merge or consolidate, or a majority of your voting stock or
interests is transferred to a single individual or a group.
(h) There is a material adverse change in your financial condition,
business or operations, or that of any guarantor.
13. REMEDIES, DEFAULT INTEREST, LATE FEES.
If you are in default we may exercise one or more of our "remedies." Each of
our remedies is independent. We may exercise any of our remedies, all of our
remedies or none of our remedies. We may exercise them in any order we
choose. Our exercise of any remedy will not prevent us from exercising any
other remedy or be an "election of remedies." If we do not exercise a remedy,
or if we delay in exercising a remedy, this does not mean that we are
forgiving your default or that we are giving up our right to exercise the
remedy. Our remedies allow us to do one or more of the following:
(a) Require you to immediately pay us all rent for the entire Term for any
or all Schedules.
(b) Require you to immediately pay us all amounts that you are required to
pay us for the entire Term of any other leases, loans or other
financial arrangements that you have with us.
(c) Sue you for all rent and other amounts you owe us plus the greater of
(1) the actual residual value of the Equipment or (2) the residual
value we assumed when we leased it to you. Future rent and residual
value will be discounted to present value using a discount rate of
five (5%) percent per year.
(d) Require you at your expense to return the Equipment and to comply with
all of the terms of Section 7(f) hereof.
(e) Exercise any remedy under the Uniform Commercial Code or as otherwise
permitted by law, including, without limitation, to the extent
permitted, retaking and removing the Equipment. We have your
permission to remove any physical obstructions to removal of the
Equipment. We may also disconnect and separate all Equipment from
other property. No court order, court hearing or "legal process" will
be required for us to repossess the Equipment. You will not be
entitled to any damages resulting from removal or repossession of the
Equipment. We may use, ship, store, repair or lease any Equipment
that we repossess. We may sell any repossessed Equipment at private
or public sale. You give us permission to show the Equipment to
buyers at your location free of charge during normal business hours.
If we do this, we do not have to remove the Equipment from your
location. If we repossess the Equipment and sell it, we will give you
a credit for the net sale price, after subtracting our costs of
repossessing and selling the Equipment. If we rent the Equipment to
somebody else, we will give you credit for the net rent received,
after subtracting our costs of repossessing and renting the Equipment,
but the credit will be discounted to present value using the discount
rate that we used in calculating your rental payment under the
Schedule for the Equipment. The credit will be applied against what
you owe us under this Lease, the Schedules and any other leases, loans
or other financial arrangements that you have with us. If the credit
exceeds the amount you owe under this lease, the Schedules and any
other leases, loans or other financial arrangements that you have with
us, we will refund the amount of the excess to you.
(f) We will have all of our rights and remedies under this Lease, the
Schedules and all agreements, instruments and documents executed in
connection herewith and therewith and all of our rights and remedies
under applicable law, whether as a secured party or otherwise.
(g) You will also pay us the following:
(1) All our expenses of enforcing our remedies. This includes all
our expenses to repossess, store, ship, repair and sell the Equipment.
(2) Our reasonable attorney's fees and expenses.
(3) Default interest on everything you owe us from the date of your
default to the date on which we are paid in full. The "default
interest rate" will be one and one-half (1.5%) percent per month. If
this interest rate exceeds the highest legal interest rate, you will
only be required to pay us default interest at the highest legal
interest rate.
(h) You realize that the damages we could suffer as a result of your
default are very uncertain. You also realize that the value of an
unexpired lease Term is difficult or impossible to calculate. This is
why we have agreed with you in advance on the discount rates and
default interest rate to be used in calculating the payments you will
owe us if you default. You agree that, for these reasons, the
payments you will owe us if you default are "agreed" or "liquidated"
damages. You understand that these payments are not "penalties" or
"forfeitures."
(i) You will pay us a late fee whenever you pay any amount that you owe us
more than 10 days after it is due. You will pay the late fee within
one month after the late payment was originally due. The late fee
will be ten (10%) percent of the late payment. If this exceeds the
highest legal amount we can charge you; you will only be required to
pay the highest legal amount. The late fee is intended to reimburse
us for our collection costs that are caused by late payment. It is
charged in addition to all other amounts you are required to pay us,
including default interest.
14. PERFORMING YOUR OBLIGATIONS IF YOU DO NOT.
If you do not perform one or more of your obligations under this Lease or
Schedule, we may perform it for you. We will notify you in writing at least 10
days before we do this. We do not have to perform any of your obligations for
you. If we do choose to perform them, you will pay us all of our expenses to
perform the obligations. You will also reimburse us for any money that we
advance to perform your obligations, together with interest at the default
interest rate on that amount. This will be additional "rent" that you will
owe us and you will pay it at the same time that your next rent payment is
due.
15. INFORMATION SUPPLIED BY YOU AND ANY GUARANTOR.
(a) You have supplied us with information about the Equipment. You
promise to us that the amount we are paying for the Equipment is no
more than the fair and usual price for this kind of Equipment, taking
into account any discounts, rebates and allowances that you or any
affiliate of yours may have been given for the Equipment.
(b) During the Term you will promptly provide us with copies of any
current, quarterly and annual reports and all proxy (or information)
statements you file with the Securities and Exchange Commission (SEC).
(c) You and any guarantor will also provide us with the following
financial statements:
(1) Quarterly balance sheet and statements of earnings and cash
flow, within 45 days after the end of your first three fiscal quarters
in each fiscal year. These will be certified by the chief financial
or accounting officer.
(2) Annual balance sheet and statements of earnings and cash flow,
within 90 days after the end of each fiscal year. These will be
audited by independent auditors acceptable to us. Their audit report
must be unqualified.
All financial statements will be prepared according to generally
accepted accounting principals, consistently applied. All financial
statements and SEC filings that you provides will be true and
complete. They will not fail to tell us anything that would make them
not misleading.
(d) At the same time you deliver the financial statements described in
paragraph 15(c)(1), you will also provide us with a certificate of
your chief financial or accounting officer stating that no default
exists, or, if he cannot certify this because a default does exist, he
must specify in reasonable detail the nature of the default.
(e) The audited financial statements described in paragraph 15(c)(2), must
be accompanied by a certificate of such independent auditor stating
that no default exists, or, if it cannot certify this because a
default does exist, it must specify in reasonable detail the nature of
the default.
16. REPRESENTATIONS AND WARRANTS.
You represent and warrant to us as follows:
(a) You and each guarantor are duly organized, existing and in good
standing wherever you or it are required by law to be so qualified.
You and each guarantor have full power and authority to execute,
deliver and carry out the provisions of this Lease and all Schedules
and to lease the Equipment hereunder and thereunder. This Lease, all
Schedules and all agreements, instruments and documents executed in
connection herewith or therewith are validly executed and delivered by
you and the guarantors and are the legal, valid and binding
obligations of you and the guarantors, each enforceable in accordance
with its terms.
(b) All financial information and other information that you have given us
is true and complete. You have not failed to tell us anything that
would make the financial information misleading. There has been no
material adverse change in your financial condition, business or
operations, or the financial condition, business or operations of any
guarantor, from the financial condition, business or operations that
you disclosed to us.
(c) You have complied with all "environmental laws" and will continue to
comply with all "environmental laws." No "hazardous substances" are
used, generated, treated, stored or disposed of by you or at your
properties except in compliance with all environmental laws.
"Environmental laws" mean all federal, state or local environmental
laws and regulations, including the following laws: CERCLA, RCRA,
Hazardous Materials Transport Act and The Federal Water Pollution
Control Act. "Hazardous substances" means all hazardous or toxic
wastes, materials or substances, as defined in the environmental laws,
as well as oil, flammable substances, asbestos that is or could become
friable, urea formaldehyde insulation, polychlorinated biphenyls and
radon gas.
17. UNIFORM COMMERCIAL CODE DISCLAIMERS OF WARRANTIES AND WAIVERS.
WE DID NOT MANUFACTURE OR SUPPLY THE EQUIPMENT. WE ARE NOT A DEALER IN THE
EQUIPMENT. INSTEAD, YOU CHOSE THE EQUIPMENT.
WE DO NOT MAKE ANY WARRANTY AS TO THE EQUIPMENT. WE DO NOT MAKE ANY WARRANTY
AS TO "MERCHANTABILITY" OR "SUITABILITY" OR "FITNESS FOR A PARTICULAR
PURPOSE" OR "NONINFRINGEMENT" OF ANY PATENT, COPYRIGHT OR OTHER INTELLECTUAL
PROPERTY RIGHT.
WE WILL NOT BE RESPONSIBLE FOR ANY LOSS, DAMAGE, OR INJURY TO YOU OR ANYBODY
ELSE AS A RESULT OF ANY DEFECTS, HIDDEN OR OTHERWISE, IN THE EQUIPMENT UNDER
"STRICT LIABILITY" LAWS OR ANY OTHER LAWS.
WE WILL NOT BE RESPONSIBLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES,
LOSS OF PROFITS OR GOODWILL.
WE MAKE NO WARRANTY AS TO THE TREATMENT OF THIS LEASE FOR TAX OR ACCOUNTING
PURPOSES.
If the Equipment is unsatisfactory, you will continue to pay us all rent and
other amounts you are required to pay us. You must seek repair or replacement
of the Equipment solely from the Manufacturer or Supplier and not from us.
You may use our rights under any Manufacturer or Supplier warranties on the
Equipment to get it repaired or replaced. Neither the Manufacturer nor the
Supplier is our "agent", so they cannot speak for us and they are not allowed
to make any changes in this Lease or any Schedule, or give up any of our
rights.
18. UNIFORM COMMERCIAL CODE ARTICLE 2A PROVISIONS.
This Lease is a "Finance Lease" under Article 2A of the Uniform Commercial
Code. You agree that (a) we have advised you of the identity of the
Supplier, (b) you may have rights under the "supplier contract" under which
we are purchasing the Equipment from the Supplier and (c) you may contact
the Supplier for a description of these rights.
YOU WAIVE ANY AND ALL OF YOUR RIGHTS AND REMEDIES UNDER ARTICLE 2A OF THE
UNIFORM COMMERCIAL CODE, INCLUDING SECTIONS 2A-508 THROUGH 2A-522 OF THE
UNIFORM COMMERCIAL CODE.
19. ASSIGNMENT.
WE MAY ASSIGN THIS LEASE OR ANY SCHEDULE OR ANY RENT PAYMENTS WITHOUT YOUR
PERMISSION.
WE MAY GRANT A SECURITY INTEREST IN THE EQUIPMENT WITHOUT YOUR PERMISSION.
THE PERSON TO WHOM WE ASSIGN IS CALLED THE "ASSIGNEE." THE ASSIGNEE WILL NOT
HAVE ANY OF OUR OBLIGATIONS UNDER THIS LEASE. YOU WILL NOT BE ABLE TO RAISE
ANY DEFENSE, COUNTERCLAIM OR OFFSET AGAINST THE ASSIGNEE. NOTWITHSTANDING
ANY SUCH ASSIGNMENT OR GRANTING OF A SECURITY INTEREST, WE WILL CONTINUE TO
BE LIABLE FOR ALL OF OUR OBLIGATIONS UNDER THIS LEASE.
AFTER ASSIGNMENT YOU MAY "QUIETLY ENJOY" THE USE OF THE EQUIPMENT SO LONG AS
YOU ARE NOT IN DEFAULT.
UNLESS YOU RECEIVE OUR WRITTEN PERMISSION, YOU MAY NOT ASSIGN OR TRANSFER YOUR
RIGHTS UNDER THIS LEASE OR ANY SCHEDULE. YOU ALSO ARE NOT ALLOWED TO SUBLET
THE EQUIPMENT OR LET ANYBODY ELSE USE IT UNLESS WE GIVE YOU OUR WRITTEN
PERMISSION.
20. PUBLICITY.
We may make press releases and publish a tombstone announcing this transaction
and its total amount. You may publicize this transaction with our prior
written consent.
21. NOTICES.
Your address for notices is your address set forth below your name on the
signature page of this Lease. We may give you written notice in person, by
mail, by overnight delivery service, or by fax. Notice will be sent to your
address below your signature. Mail notice will be effective three (3) days
after we deposit it with the U.S. Postal Service. Overnight delivery notice
requires a receipt and tracking number. Fax notice requires a receipt from
the sending machine showing that it has been sent to your fax number and
received.
Our address for notices is our address set forth below our name on the
signature page of this Lease, with attention: Director, Contract
Administration. You will also give copies of all notices to us at our
principal place of business at the address set forth in the opening
paragraph of this Lease, with attention to Vice President, Law Department.
You may give us notice the same way that we may give you notice.
22. ACCEPTANCE BY FINOVA, GOVERNING LAW, JURISDICTION, VENUE, SERVICE OF
PROCESS, WAIVER OF JURY TRIAL.
THIS LEASE WILL ONLY BE BINDING WHEN WE HAVE ACCEPTED IT IN WRITING.
THIS LEASE IS GOVERNED BY THE LAWS OF THE STATE OF ARIZONA, THE STATE IN WHICH
OUR OFFICE IS LOCATED IN WHICH FINAL APPROVAL OF THE TERMS AND CONDITIONS OF
THIS LEASE OCCURRED AND FROM WHICH PAYMENT FOR THE EQUIPMENT WILL BE ORDERED.
HOWEVER, IF THIS LEASE IS UNENFORCEABLE UNDER ARIZONA LAW, IT WILL INSTEAD BE
GOVERNED BY THE LAWS OF THE STATE IN WHICH THE EQUIPMENT IS LOCATED.
YOU MAY ONLY SUE US IN A FEDERAL OR STATE COURT THAT IS LOCATED IN MARICOPA
COUNTY, ARIZONA. THIS APPLIES TO ALL LAWSUITS UNDER ALL LEGAL THEORIES,
INCLUDING CONTRACT, TORT AND STRICT LIABILITY. YOU CONSENT TO THE PERSONAL
JURISDICTION OF THESE ARIZONA COURTS. YOU WILL NOT CLAIM THAT MARICOPA
COUNTY, ARIZONA, IS AN "INCONVENIENT FORUM" OR THAT IT IS NOT A PROPER
"VENUE."
WE MAY SUE YOU IN ANY COURT THAT HAS JURISDICTION. WE MAY SERVE YOU WITH
PROCESS IN A LAWSUIT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO YOUR
ADDRESS INDICATED ABOVE YOUR SIGNATURE BELOW.
YOU AND WE EACH WAIVE ANY RIGHT YOU OR WE MAY HAVE TO A JURY TRIAL IN ANY
LAWSUIT BETWEEN YOU AND US.
23. GENERAL.
This Lease benefits our successors and assigns. This Lease benefits only
those successors and assigns of yours that we have approved in writing.
This Lease binds your successors and assigns.
This Lease bind only those successors and assigns of ours that clearly assume
our obligations in writing.
TIME IS OF THE ESSENCE OF THIS LEASE.
This Lease and all of the Schedules is the entire agreement between you and
us concerning the Equipment.
Only an employee of FINOVA who is authorized by corporate resolution or
policy may modify or amend this Lease or any Schedule on our behalf, and
this must be in writing. Only he or she may give up any of our rights, and
this must be in writing. If more than one person is the Lessee under this
Lease, then each of you is jointly and severally liable for your obligations
under this Lease.
This Lease is only for your benefit and for our benefit, as well our
successors and assigns. It is not intended to benefit any other person.
If any provision in this Lease is unenforceable, then that provision must be
deleted. Only unenforceable provisions are to be deleted. The rest of the
lease will remain as written.
See our Commitment Letter to you dated August 23, 2000 (the "Commitment
Letter"), which you and we consider to be part of this Lease. The terms and
conditions of the Commitment Letter continue following the execution of the
initial Schedule, including, without limitation, conditions to entering into
any additional Schedule. However, if there is a conflict between the terms
and conditions of this Lease or any Schedule and the terms and conditions of
the Commitment Letter, then you and we agree that the terms and conditions of
this Lease and the Schedules control over the Commitment Letter terms and
conditions.
LESSOR:
FINOVA CAPITAL CORPORATION
10 Waterside Drive
Farmington, Connecticut 06032-3065
BY: /s/ Linda A. Moschitto
PRINTED NAME: Linda A. Moschitto
TITLE: Director - Contract Administration
FAX NUMBER: (860) 676-1814
DATE ACCEPTED: August 28, 2000
LESSEE:
LIFEPOINT, INC.
1205 South Dupont Street
Ontario, CA 91761
BY: /s/ Linda H. Masterson
PRINTED NAME: Linda H. Masterson
TITLE: President/CEO
Taxpayer ID# 33 053 9168
Fax Number: 909-948-3591
