FOR ANY
PARTICULAR PURPOSE WHETHER OR NOT DISCLOSED TO LESSOR; AND (iii) DELIVERY OF THE
EQUIPMENT FREE OF THE RIGHTFUL CLAIM OF ANY PERSON BY WAY OF INFRINGEMENT OR THE
LIKE.
LESSOR EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES.
LESSOR SHALL HAVE NO
LIABILITY TO LESSEE FOR ANY CLAIM, LOSS, OR DAMAGE OF ANY KIND OR NATURE
WHATSOEVER, INCLUDING SPECIAL OR CONSEQUENTIAL DAMAGES.
LESSEE EXPRESSLY WAIVES
ALL RIGHTS AND REMEDIES UNDER SECTIONS 508 THROUGH 522 OF UCC2A (AS DEFINED
HEREIN) AND ELECTS INSTEAD THE REMEDIES PROVIDED BY THIS AGREEMENT TO THE
FULLEST EXTENT ALLOWED BY APPLICABLE LAW.
b.
Assignment of Warranties:
Lessor hereby assigns to Lessee all assignable
warranties on the Equipment, as described in Lessor's purchase contract, which
assignment shall be effective only (i) during the Initial Period and any Renewal
Period, as defined hereinafter, and (ii) so long as no uncured Event of Default
exists.
10.
NET LEASE; LESSEE'S OBLIGATIONS ABSOLUTE AND UNCONDITIONAL:
a.
Net Lease:
This Agreement is a "net lease" and, as between Lessor and Lessee,
Lessee shall be responsible for all costs, expenses and claims of every nature
whatsoever arising out of or in connection with or related to this Agreement or
the Equipment (including, but not limited to, transportation in and out,
packing, installation, deinstallation and shipping).
4
Initial
b.
Absolute Payment Obligation:
LESSEE AGREES THAT ITS MONTHLY RENTAL AND OTHER
OBLIGATIONS HEREUNDER SHALL BE IRREVOCABLE, INDEPENDENT, ABSOLUTE, AND
UNCONDITIONAL AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION, RECOUPMENT,
DEFENSE, OFFSET OR COUNTERCLAIM OTHERWISE AVAILABLE TO LESSEE AGAINST LESSOR;
NOR, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR AS AGREED TO BY LESSOR IN
WRITING, SHALL THIS AGREEMENT TERMINATE FOR ANY REASON WHATSOEVER BEFORE THE END
OF THE INITIAL PERIOD OR ANY RENEWAL PERIOD THEN IN EFFECT.
11.
ASSIGNMENT:
a.
No Assignment by Lessee:
LESSEE MAY NOT ASSIGN THIS AGREEMENT OR ANY OF ITS
RIGHTS HEREUNDER OR SUBLEASE THE EQUIPMENT WITHOUT THE PRIOR WRITTEN CONSENT OF
LESSOR.
NO PERMITTED ASSIGNMENT OR SUBLEASE SHALL RELIEVE LESSEE OF ANY OF ITS
OBLIGATIONS HEREUNDER.
b.
Lessor Assignments:
Lessor may sell and assign some or all of its rights and
interests in any Equipment, and in any Equipment Schedule hereunder, to another
party ("Lessor's Assignee"), either outright or as collateral security for
loans.
Upon notice of any such assignment and as provided by instructions from
Lessor, Lessee shall pay its Monthly Rental and perform its other obligations
hereunder to Lessor's Assignee (or to another party designated by Lessor's
Assignee).
Upon any such sale or assignment, LESSEE'S OBLIGATIONS TO LESSOR'S
ASSIGNEE UNDER THE ASSIGNED EQUIPMENT SCHEDULE SHALL BE ABSOLUTE AND
UNCONDITIONAL, AND LESSEE WILL NOT ASSERT AGAINST LESSOR'S ASSIGNEE ANY CLAIM,
DEFENSE OR COUNTERCLAIM WHICH LESSEE MIGHT HAVE AGAINST LESSOR.
Lessor's
Assignee shall have all of the rights but none of the obligations of Lessor
under this Agreement.
Notwithstanding any assignment by Lessor, Lessor's
Assignee shall not be deemed to have assumed or to be obligated to perform any
of the obligations of Lessor, and after such assignment Lessor shall