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EXHIBIT 10.4.2
MASTER ASSET LEASE AGREEMENT
Master Asset Lease Agreement entered into this 7th day of March, 2000
(the "Master Lease") between TRIVERGENT LEASING SOUTH, LLC, a Delaware limited
liability company, having its chief executive offices at 200 North Main Street,
Suite 303, Greenville, South Carolina 29601 ("Lessor") and, TRIVERGENT
COMMUNICATIONS SOUTH, INC., a Delaware corporation having its chief executive
offices at 200 North Main Street, Suite 303, Greenville, South Carolina 29601
("Lessee").
1. LEASE: ORDERING OF EQUIPMENT.
(a) Lessor hereby leases to Lessee and Lessee hereby leases from
Lessor, subject to the terms and conditions of this Master Lease, the items of
equipment and other personal property (together with all attachments,
replacements, parts, additions, substitutions, capitalized repairs, accessions
and accessories incorporated therein or affixed thereto (the "Equipment")
described in the lease schedules executed or to be executed hereunder (each a
"Schedule"). Each Schedule shall constitute a separate and independent lease and
contractual obligation of Lessee and shall incorporate the terms and conditions
of this Master Lease and any additional provisions contained in such Schedule.
In the event of a conflict between the terms and conditions of this Master Lease
and any additional provisions of such Schedule, the additional provisions of
such Schedule shall prevail with respect to such Schedule only.
(b) Lessee acknowledges that the Equipment leased to Lessee
hereunder is being purchased by Lessor at Lessee's request from a seller
selected by Lessee and on the basis of specifications and requirements selected
and furnished by Lessee, and that Lessor has not held itself out as having
knowledge or skill particular to the Equipment. In furtherance of this Section
1(b), but subject to Lessor's ultimate approval, Lessee shall have the authority
to negotiate terms for the purchase of the Equipment with third party vendors,
and shall have the authority to deliver to such vendors all appropriate sales
tax resale certificates and other documents deemed appropriate by Lessee in
order to facilitate the purchase of the equipment by Lessor.
(c) The parties acknowledge and agree that this Master Lease and
each Schedule are intended to qualify as "operating leases" under Generally
Accepted Accounting Principles.
2. TERM.
(a) The term of this Master Lease shall commence on March 7th, 2000
and shall continue in effect thereafter so long as any Schedule entered into
pursuant hereto remains in effect or, if no such Schedule is in effect, until
either Lessor or Lessee gives the other party hereto written notice of
cancellation.
(b) The term of each Schedule shall commence on the date stated
therein and shall continue for the period specified in the Schedule as the Lease
Term. The Lease Term may not be terminated by Lessee unless otherwise expressly
provided in the Schedule.
3. RENT AND PAYMENT OBLIGATION. Lessee shall owe rent ("Rent") to
Lessor for the Equipment subject to each Schedule, in the amounts and on the
payment dates set forth in such Schedule. Lessor shall bill to Lessee, on a
monthly basis, Rent and any other amounts payable by Lessee hereunder. Lessor
and Lessee will settle, on a monthly basis and in accordance with policies
adopted by Lessor, all accrued and unpaid Rent and other payment obligations
owed by Lessee; provided, however, that if such settlement does not occur within
sixty (60) days of the monthly date called for under this
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Section 3, the amount of accrued and unpaid Rent and other outstanding payment
obligations owed by Lessee shall bear interest at the rate of one percent (1%)
per quarter from the sixty-first day after the monthly settlement date and until
such settlement occurs.
4. NET LEASE. EACH SCHEDULE SHALL BE A NET LEASE, AND LESSEE'S
OBLIGATION TO PAY ALL RENT AND OTHER SUMS WHEN DUE AND TO OTHERWISE PERFORM AS
REQUIRED UNDER EACH SCHEDULE SHALL BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT
BE SUBJECT TO ANY ABATEMENT, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM,
INTERRUPTION, DEFERMENT OR RECOUPMENT, FOR ANY REASON WHATSOEVER. If any
Equipment is unsatisfactory for any reason, Lessee shall make any claims solely
against the manufacturer or supplier of the Equipment and shall, nevertheless,
pay Lessor or its successors or Assignees (as defined in Section 15), all
amounts due and payable under the applicable Schedule.
5. INSTALLATION, USE AND LOCATION. Lessee shall pay all installation
charges for the Equipment. The Equipment shall be used and operated by Lessee
only in the ordinary conduct of its business by qualified employees, agents, or
contractors of Lessee and in accordance with all applicable operating
instructions, and applicable governmental laws, rules and regulations. Upon
reasonable prior notice, Lessee shall make the Equipment and all related records
available to Lessor or its agents for inspection during normal business hours at
the location of such Equipment.
6. MAINTENANCE.
(a) Subject to Section 6(b) below, Lessee shall, at its expense,
keep the Equipment in good condition and working order, ordinary wear and tear
from proper use excepted and shall make all necessary adjustments, repairs and
replacements. Further, Lessee shall take all actions and incur all expenses as
may be necessary to ensure that the Equipment, at all times, complies with all
applicable laws, rules, regulations and requirements. Lessee shall not make any
alterations, additions or improvements to the Equipment except as may be
required pursuant to the two proceeding sentences without Lessor's prior written
consent unless such alterations, additions or improvements do not impair the
commercial value or the originally intended function or use of the Equipment and
are readily removable without causing material damage to such Equipment so as to
return the Equipment to its original state, less ordinary wear and tear. Any
alteration, addition or improvement not removed prior to the return of the
Equipment shall without further action become the property of Lessor, provided,
however, that any alterations, additions and improvements which would reduce the
value of the Equipment must be removed prior to the return of such Equipment.
(b) Notwithstanding anything herein to the contrary, Lessor shall
pay the cost of all repairs to the Equipment made by Lessee that are capitalized
under Generally accepted Accounting Principles; provided, however, that all such
capitalized repairs shall be mutually agreed upon by the parties, and provided
further that upon Lessor's incurring a cost for the capitalized repair with
respect to an item of Equipment, Lessor and Lessee shall agree upon an
appropriate adjustment to the Rent payable for such item of Equipment for the
balance of its applicable Lease Term.
7. RETURN.
(a) Unless Lessee exercises any purchase or renewal option provided
in the Schedule, or unless the Lease Term automatically extends for an
additional term(s) under the Schedule, upon the expiration or earlier
termination of the Lease Term with respect to the Equipment (including a
termination occurring upon the exercise by either Lessor or Lessee of a
cancellation right provided in the Schedule), or upon demand by lessor pursuant
to Section 17 hereof, Lessee shall, at its expense, return the
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Equipment in the same condition as when delivered to Lessee, ordinary wear and
tear excepted, to Lessor at a location in the continental United States
specified by Lessor. Lessee shall pay all costs and expenses incurred by Lessor
to place the Equipment in such condition.
(b) Subject to Lessor's ultimate approval, and subject to the terms
of the Schedule governing Lessee's cancellation option, Lessee shall have the
authority to negotiate terms for the sale, trade or other disposition of the
Equipment to third parties, and Lessee shall have the authority to deliver to
such third parties all documents deemed appropriate by Lessee in order to
facilitate the disposition of the Equipment.
8. OWNERSHIP, LIENS. The Equipment is and shall at all times be the
property of Lessor. Lessee shall have no right, title or interest therein except
as set forth in the Schedule. Each Schedule shall constitute a lease of personal
property, and Lessee agrees to take all action necessary or reasonably requested
by Lessor to ensure that the Equipment shall be and remain personal property.
Nothing in any Schedule shall be construed as conveying to Lessee any interest
in the Equipment other than its interest as a lessee. Lessee shall, at its
expense, keep the Equipment and its interest as lessee hereunder free and clear
of all liens, charges, claims and other encumbrances.
9. DISCLAIMER OF WARRANTIES. Lessor warrants that, so long as no Event
of Default (as defined in Section 16) has occurred and is continuing, neither
Lessor nor its successors or Assignees or anyone acting or claming through
Lessor will interfere with Lessee's quiet enjoyment and use of the Equipment.
NOTWITHSTANDING, LESSOR LEASES THE EQUIPMENT IN "AS IS" CONDITION AND, EXCEPT
FOR LESSOR'S WARRANTY OF QUIET ENJOYMENT, LESSOR MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, CONCERNING THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY
OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. LESSEE HEREBY WAIVES
ANY CLAIM (INCLUDING ANY CLAIM BASED ON STRICT OR ABSOLUTE LIABILITY IN TORT) IT
MIGHT HAVE AGAINST LESSOR FOR ANY LOSS, DAMAGE (INCLUDING INCIDENTAL OR
CONSEQUENTIAL DAMAGE) OR EXPENSE CAUSED BY THE EQUIPMENT. LESSEE ACKNOWLEDGES
THAT LESSOR DID NOT SELECT, MANUFACTURE OR SUPPLY THE EQUIPMENT AND THAT LESSEE
HAS MADE THE SELECTION OF THE EQUIPMENT BASED ON ITS OWN JUDGMENT AND EXPRESSLY
DISCLAIMS ANY RELIANCE ON STATEMENTS MADE BY LESSOR OR ITS AGENTS. Provided no
Event of Default has occurred, Lessor hereby assigns to Lessee and Lessee shall
have the benefit of, any and all manufacturer's warranties, service agreements
and patent indemnities, if any, with respect to the Equipment; provided,
however, that Lessee's sole remedy for the breach of any such warranty,
indemnification or service agreement shall be against the manufacturer of such
Equipment and not against Lessor, nor shall any such breach have any effect
whatsoever on the rights and obligations of Lessor or Lessee hereunder.
10. RISK OF LOSS. Upon delivery of the Equipment to Lessee, Lessee
shall bear the entire risk of loss, damage, theft, or destruction of the
Equipment or any part thereof, from any and every cause whatsoever, which shall
occur prior to the return of the Equipment in accordance with Section 7, and no
such loss, damage, theft of destruction shall relieve Lessee of its obligation
to pay Rent or to comply with any other provisions of the Schedule. In the event
of damage to any part of the Equipment, Lessee shall immediately repair such
Equipment at Lessee's expense, and return such Equipment to its previous
condition, unless irreparably damaged. If the Equipment is lost, stolen,
destroyed or irreparably damaged from any cause whatsoever, (each an "Event of
Loss"), Lessee shall promptly notify Lessor of the occurrence of such Event of
Loss, and shall, at Lessee's option, (i) replace the Equipment with like
equipment in good condition and working order acceptable to Lessor, and Lessee
shall transfer title to the replacement equipment to Lessor, free and clear of
all liens, claims and encumbrances, which equipment shall thereupon become
subject to the Schedule; or (ii) pay Lessor, on the Rent payment date next
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following such Event of Loss, an amount equal to the Stipulated Loss Value of
such Equipment, as determined by Lessor and Lessee in accordance with the
Schedule, and upon Lessor's receipt of such payment in full, together with any
Rent and other amounts due under the Schedule, the Schedule shall automatically
terminate as to such Equipment, and Lessor's right, title and interest in the
Equipment shall immediately without further action pass to Lessee, on an as-is
where-is basis, without recourse or warranty.
11. INSURANCE. At all times prior to the return of the Equipment to
Lessor in accordance with Section 7, Lessee shall carry and maintain, at its
expense, all insurance as may be mutually agreed upon by Lessor and Lessee.
12. TAXES AND FEES. Lessee shall pay when due (or reimburse to Lessor),
and on a net after-tax basis shall indemnify and defend Lessor against, all
fees, taxes and governmental charges (including without limitation interest and
penalties) of any nature which may now or hereafter be imposed or levied by any
federal, state or local authority upon Lessor, Lessee, the Equipment (including,
without limitation, the purchase, ownership, transportation, delivery,
installation, leasing, possession, use, operation, storage, and return of such
Equipment), or any Schedule, excluding, however, all taxes on or measured by
Lessor's net income. All required personal property tax returns with respect to
the Equipment shall be filed by Lessor. The provisions of this Section 12 shall
survive the expiration or termination of the Master Lease or Schedule
thereunder.
13. INDEMNIFICATION. Lessee shall indemnify and defend and hold Lessor,
its successors and Assignees harmless from and against, any and all liabilities,
obligations, losses, damages, claims and all costs and expenses thereof
(including legal fees and expenses) in any way relating to or arising out of any
Schedule or the Equipment, including, without limitation, the purchase,
ownership, transportation, delivery, installation, leasing, possession, use,
operation, maintenance, storage and return of such Equipment, howsoever arising,
in connection with any event occurring prior to return of such Equipment in
accordance with Section 7, excepting, however, any liabilities, obligations,
losses, damages and claims resulting solely from the gross negligence and
willful misconduct of Lessor. Lessee shall give Lessor, its successor or
Assignees prompt notice of any occurrence, event or condition in connection with
which Lessor, its successors or Assignees may be entitled to indemnification
hereunder. The provisions of this Section 13 shall survive the expiration or
termination of the Master Lease or any Schedule thereunder.
14. NO LESSEE SUBLEASE; ASSIGNMENT; MERGER. LESSEE SHALL NOT ASSIGN OR
IN ANY WAY DISPOSE OR OTHERWISE RELINQUISH POSSESSION OR CONTROL OF ALL OR ANY
PART OF ITS RIGHTS OR OBLIGATIONS UNDER ANY SCHEDULE OR ENTER INTO ANY SUBLEASE
OF ALL OR ANY PART OF THE EQUIPMENT WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR.
15. EVENTS OF DEFAULT. Each of the following shall constitute an "Event
of Default" hereunder:
(a) Lessee fails to perform or observe any term, convenant or
condition of any Schedule or any document, agreement or instrument executed
pursuant hereto or in connection herewith and such failure shall continue
uncured for a period of thirty (30) days after written notice from Lessor;
(b) Any representation or warranty made by Lessee herein or in any
Schedule or related document provided or executed by Lessee shall be false or
misleading in any material respect when made; or
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(c) Lessee defaults in the performance of its obligations under any
other agreement or Schedule now existing or hereafter made with Lessor.
Lessee shall promptly notify Lessor of the occurrence of any Event
of Default.
17. REMEDIES. Upon the occurrence of any Event of Default, Lessor may,
with or without notice to Lessee, exercise any one or more of the following
remedies, as Lessor in its sole discretion shall elect and such remedies shall
be cumulative:
(a) Require Lessee, at Lessee's expense, to return any and or all
of the Equipment in accordance with Section 7, or Lessor, at its option, may
enter upon the premises where the Equipment is located and repossess and remove
the Equipment.
(b) Declare immediately due and payable all Rents and other amounts
due and to become due under the Schedule for the then-remaining Lease Term.
(c) Upon notice of Lessee, terminate this Master Lease and any or
all Schedules, sue to enforce Lessee's performance thereof, and/or exercise any
other right or remedy then available to Lessor at law or in equity.
The exercise of any of the foregoing remedies by Lessor shall not
constitute a termination of the Master Lease or any Schedule thereunder unless
Lessor so notifies Lessee in writing. No failure or delay on the part of Lessor
to exercise any right or remedy hereunder shall operate as a waiver thereof. No
express or implied waiver by Lessor of any default shall constitute a waiver of
any other default by Lessee or a waiver of any of Lessor's rights. No remedy
referred to in this Section 17 is intended to be exclusive, but each shall be
cumulative and concurrent to the extent permitted by law, and shall be in
addition to any other remedy referred to above or otherwise available to Lessor
at law or in equity.
In addition to the above, in all cases, Lessee shall be liable for all
costs, expenses and damages incurred by Lessor by reason of the occurrence of
any Event of Default or the exercise of Lessor's remedies with respect thereto,
including, but not limited to, all attorney's fees and costs whether or not
court proceedings are brought, costs related to the repossession, storage,
repair and disposition of the Equipment, and all incidental and consequential
damages.
18. LESSEE'S FAILURE TO PAY, LESSOR'S PAYMENT. If Lessee fails to pay
or otherwise perform any of its obligations under any Schedule, Lessor may, but
shall not be obligated to, pay such amounts or perform such obligations for the
account of Lessee without thereby waiving Lessor's right to declare an Event of
Default. In any such event, Lessee shall immediately upon demand reimburse
Lessor for any such costs and expenses incurred by Lessor.
19. FINANCIAL INFORMATION. During the term of this Master Lease, Lessee
will furnish to Lessor such financial information concerning Lessee, as Lessor
may reasonably request.
20. LESSEE REPRESENTATIONS. Lessee represents and warrants to Lessor
that (i) Lessee is a corporation duly organized, validly existing and in good
standing under Delaware law; (ii) when fully signed and delivered, the Master
Lease and each Schedule will be a legal valid and binding agreement of Lessee,
enforceable against Lessee in accordance with its terms, subject to applicable
bankruptcy and other similar laws, and will not violate or create a default
under any law, rule, regulation, judgment, order, instrument, agreement or
charter document binding on Lessee or its property; (iii) no consent or approval
of, notice to, or filing with any governmental authority is required for Lessee
to sign, deliver or perform the Master Lease and each Schedule; (iv) there are
no pending or threatened actions or
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proceedings before any court or administrative agency that could have a material
adverse effect on Lessee, nor is Lessee in default under any material loan,
lease or purchase obligation; and (v) the financial statements and other
information furnished and to be furnished to Lessor are and will be true and
correct in all material respects.
21. FURTHER ASSURANCES. Lessee shall, at its expense, promptly execute
and deliver such further documents and take any and all other action reasonably
requested by Lessor from time to time, for the purpose of fully effectuating the
intent and purposes of this Master Lease and each Schedule, and to protect the
interests of Lessor, it successors and Assignees. Lessee, at the request of
Lessor and at Lessee's expense, agrees to execute and deliver to Lessor any
financing statements, fixture filings or other instruments necessary for
perfecting the interests and title of Lessor in any Schedule and the Equipment,
and Lessee agrees that Lessor may file a copy of this Master Lease and any
Schedule in lieu of a financing statement.
22. WAIVER AND SURVIVAL OF RIGHTS. To the extent permitted by
applicable law, Lessee hereby waives its rights under any provision of law now
or hereafter in effect which might limit or modify or otherwise render
unenforceable in any respect any remedy or other provision of the Master Lease
or any Schedule. No delay by Lessor in exercising any right, power or remedy
under the Master Lease or any Schedule shall constitute a waiver, and any waiver
by Lessor on any one occasion or for any one purpose shall not be construed as a
waiver on any future occasion or for any other purpose. All of the covenants and
agreements of Lessee contained in the Master Lease and in each Schedule shall
survive the expiration or earlier termination of such Schedule and the Lease
Term with respect to the Equipment leased thereunder until all obligations,
under the Schedule(s) and the Master Lease have been performed in full. Subject
to all of the terms and provisions of each Schedule, all of the covenants,
conditions and obligations contained in such Schedule shall be binding upon and
inure to the benefit of the respective successors and permitted assigns of
Lessor and Lessee.
23. MISCELLANEOUS.
(a) This Master Lease and each Schedule shall be governed in all
respects by, and construed in accordance with, the laws of the State of South
Carolina.
(b) All notices, consents, instructions or requests desired or
required to be given under the Master Lease or any Schedule shall be in writing
and shall become effective when delivered, or if mailed, when deposited in the
United States mail with proper postage prepaid for registered or certified mail,
return receipt requested, addressed to such other party at the address set forth
above or at such other address as such party shall from time to time designate
by proper notice.
(c) Any action by Lessee against Lessor for any default by Lessor
under any Schedule shall be commenced within one (1) year after any such cause
of action occurs.
(d) This Master Lease and each Schedule and all documentation
executed in connection therewith shall constitute the complete and exclusive
statement of the terms of the agreement of Lessor and Lessee with respect to the
Equipment leased thereby, and shall automatically cancel and supersede any and
all prior oral or written understanding with respect thereto.
(e) If any of the provisions of this Master Lease or any Schedule
are declared to be invalid in any jurisdiction, such provisions shall be severed
from this Master Lease or the Schedule and the remaining provisions thereof
shall remain in full force and effect.
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(f) No term or provision of this Master Lease or any Schedule may
be amended, altered, waived, discharged or terminated except by a written
instrument signed by the parties hereto.
(g) This Master Lease and each Schedule may be executed in any
number of counterparts, each of which, when so executed and delivered, shall be
deemed an original, but all such counterparts taken together shall constitute
one and the same instrument. If this Master Lease or any Schedule constitutes
chattel paper, no security interest therein may be created except through the
transfer or possession of the original counterpart marked "Original No. 1".
(h) The headings of this Master Lease and each Schedule shall be
for convenience of reference only and shall form no part of this Master Lease or
such Schedule.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, the parties hereto have caused this Master
Asset Lease Agreement to be duly executed by their authorized representatives as
of the date first above written.
TRIVERGENT LEASING SOUTH, LLC
LESSOR
By: TRIVERGENT COMMUNICATIONS SOUTH, INC.
MANAGER
Attest: By:
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Hamilton E. Russell, III Clark H. Mizell, Vice President
Secretary
TRIVERGENT COMMUNICATIONS SOUTH, INC.
LESSEE:
Attest: By:
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Hamilton E. Russell, III Clark H. Mizell, Vice President
Secretary
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