covered, in
whole or in part, by such policies but such expenses are not payable under such
policies.
EACH PARTY AGREES THAT (A) THE PROCEEDS OF INSURANCE TO WHICH IT IS ENTITLED,
(B) ITS RIGHTS TO INDEMNIFICATION FROM THE OTHER PARTY UNDER THIS SECTION, AND
(C) ITS RIGHT TO DIRECT DAMAGES ARISING IN CONTRACT FROM A MATERIAL BREACH OF
THE OTHER PARTY'S OBLIGATIONS UNDER THIS AGREEMENT ARE THE SOLE REMEDIES FOR ANY
DAMAGE, LOSS, OR EXPENSE ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED
HEREUNDER OR CONTEMPLATED HEREBY. EXCEPT AS SET FORTH IN THIS SECTION, EACH
PARTY WAIVES ANY RIGHT TO RECOVER ANY DAMAGE, LOSS, OR EXPENSE ARISING OUT OF
THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER OR CONTEMPLATED HEREBY. IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR OR HAVE ANY DUTY FOR INDEMNIFICATION OR
CONTRIBUTION TO THE OTHER PARTY FOR ANY CLAIMED INDIRECT, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DMAGES, OR FOR ANY DAMAGES CONSISTING OF DAMAGES FOR
LOSS OF USE OR DEPREIATION OF VALUE OF THE AIRCRAFT, LOSS OF PROFIT OR INSURANCE
DEDUCTIBLE.
The provisions of this section shall survive the termination or expiration of
this Agreement.
18.
Termination.
Either party may terminate this Agreement upon five (5)
business days' prior written notice to the other party.
5
19.
Notices.
If to Sublessor:
DList, LLC
c/o Mr. Michael P. Groom, Esq.
Groom & Cave LLP
1570 The Alameda, Suite 100
San Jose, California 95126
Facsimile (408) 286-3423
With a copy to the General Counsel of Openwave Systems Inc. at the same address
and facsimile number.
In the case of notices with respect to changes in insurance covering the
Aircraft, notice shall also be provided to the Treasurer of Openwave Systems
Inc. at the same address and facsimile number.
If to Sublessee:
Openwave Systems Inc.
1400 Seaport Boulevard
Redwood City, California 94063
Attn: Chief Financial Officer
Facsimile: (650) 480-4295
20.
No Assignment.
Neither this Agreement nor any party's interest herein
shall be assignable to any other party whatsoever. This Agreement shall inure to
the benefit of and be binding upon the parties hereto, their heirs,
representatives and successors.
21.
TRUTH IN LEASING STATEMENT
SUBLESSOR HAS REVIEWED THE AIRCRAFT'S MAINTANANCE RECORDS AND OPERATION LOGS AND
HAS FOUND THAT DURING THE PERIOD BETWEEN THE MANUFACTURE OF THE AIRCRAFT AND THE
DATE OF THIS AGREEMENT THE AIRCRAFT HAS BEEN MAINTAINED AND INSPECTED IN
ACCORDANCE WITH FAR PART 91. SUBLESSOR CERTIFIES THAT:
THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER FAR PART 91 FOR OPERATIONS
TO BE CONDUCTED UNDER THIS AGREEMENT.
SUBLESSOR AND SUBLESSEE CERTIFY THAT SUBLESSOR AND NOT SUBLESSEE IS RESPONSIBLE
FOR OPERATIONAL CONTROL OF THE AIRCRAFT UNDER THIS AGREEMENT THROUGHOUT THE TERM
HEREOF. SUBLESSOR FURTHER CERTIFIES THAT SUBLESSOR UNDERSTANDS ITS
RESPONSIBILITY FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION REGULATIONS AND
COVENANTS THAT IT SHALL COMPLY WITH SUCH REGULATIONS.
SUBLESSEE AND SUBLESSOR UNDERSTAND THAT AN EXPLANATION OF FACTORS BEARING ON
OPERATIONAL CONTROL AND PERTINENT
6
FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT
STANDARDS DISTRICT OFFICE.
THE "INSTRUCTIONS