Exhibit 10.28
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[Solarcom logo]
SOLARCOM LLC o ONE SUN COURT o P.O. BOX 926020 o NORCROSS, GA. 30092-9204
Master Lease
01/12/2006
Solarcom LLC ("Solarcom") will lease to you the personal property listed on the
Schedules executed under this Master Lease (the "Equipment"). Each Schedule will
specify the ordered Equipment, its estimated shipment date, installation site,
applicable lease term and rental rate. By signing a Schedule, you accept it as a
separate and independent lease incorporating the terms of this Master Lease.
1. Master Lease Term
This Master Lease will continue until terminated by you or Solarcom, upon
notice to the other, at any time when there are no Schedules in effect.
2. Credit Review
For each Schedule, you agree that Solarcom may conduct a credit investigation
and review. You will provide, in a timely manner, such financial information as
Solarcom may reasonably request. You represent that all information provided
accurately and completely presents your financial condition as of the date of
execution of each Schedule.
3. Advance Rent
At the time you submit a Schedule, you will deposit with Solarcom the Advance
Rent identified in the Schedule to be applied in the manner specified in the
Schedule.
4. Delivery and Installation
Solarcom will arrange delivery of the Equipment and use reasonable efforts to
meet the estimated shipment date. If a date is not indicated in Schedule,
delivery will be made on such date as is consistent with Equipment availability
and Solarcom's normal business practices.
You will accept delivery of the Equipment and provide and maintain, at your
expense and beginning not later than the estimated shipment date, a suitable
place of installation meeting the Equipment manufacturer's environmental
specifications and local fire and building codes. You will furnish all labor
required for unpacking and placing the Equipment in the desired location of the
installation site.
Unless stated otherwise in a Schedule, you are responsible for all set-up and
installation of the Equipment. If Solarcom is responsible for installation, you
will allow Solarcom or its designee to perform such work commencing upon
delivery of the Equipment or as otherwise agreed.
If the delivered Equipment includes features not specified in the Schedule,
other than standard features generally provided by the manufacturer at no extra
cost, Solarcom will have the right to remove or deactivate such features at its
expense and at a mutually convenient time.
YOU REPRESENT THAT THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS MASTER LEASE,
EACH SCHEDULE, AND ALL RELATED DOCUMENTS: (i) HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE OR OTHER ACTION ON YOUR PART, (ii) DO NOT REQUIRE THE
CONSENT OF ANY THIRD PARTY EXCEPT SUCH AS HAS BEEN DULY OBTAINED, AND (iii) DO
NOT AND WILL NOT CONTRAVENE ANY LAW, RULE, REGULATION OR ORDER NOW BINDING UPON
YOU OR YOUR CHARTER, BY-LAWS OR OTHER ORGANIZATIONAL DOCUMENTS. YOU FURTHER
REPRESENT THAT THIS MASTER LEASE, EACH SCHEDULE, AND RELATED DOCUMENT WILL
CONSTITUTE YOUR LEGAL, VALID AND BINDING AGREEMENT ENFORCEABLE IN ACCORDANCE
WITH ITS TERMS. THE ADDITIONAL TERMS AND CONDITIONS ON PAGES 2 THROUGH 4 ARE
PART OF THIS MASTER LEASE. YOU HAVE READ THIS MASTER LEASE, UNDERSTAND IT AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
Solarcom LLC All American Semiconductor, Inc.
By: /s/ JAY STAPLES By: /s/ HOWARD FLANDERS Sign here
-------------------------------------------------- ------------------------------------------
Authorized Signature Authorized Signature
Jay T. Staples
General Counsel and Assistant Secretary 1/23/06 Howard L. Flanders 1/19/2006
-------------------------------------------------- ----------------------------------------------
Name (Type or Print) Date Name (Type or Print) Date
NONE OF THE PROVISIONS OF THIS MASTER
LEASE MAY BE WAIVED OR AMENDED EXCEPT IN A
WRITING SIGNED BY YOU AND SOLARCOM.
DATE OF ACCEPTANCE BY SOLARCOM: All American Semiconductor, Inc.
1/23/06 By: /s/ HOWARD FLANDERS Sign here
- ------------------------------------------------------ ------------------------------------------
Norcross, Georgia Authorized Signature
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5. Licensed Software
Any software listed in a Schedule will be subject to your separate license
agreement with the owner or distributor ("licensor") except as the agreement may
conflict with the terms of the Schedule. You will comply with all nonconflicting
terms and look solely to the licensor for satisfaction of all claims and
warranties relating to the software.
Your obligations under a Schedule will not be affected by any termination of
your license agreement or any defect in or loss of the software. You are
responsible for arranging delivery and installation of all software.
6. Term of Schedules
The commencement date for the lease term under a Schedule (the "Commencement
Date") will be the earlier of the day by which all the Equipment is installed or
the fifth day after delivery if you cause a delay in installation. At Solarcom's
request, you will execute and deliver to Solarcom a certificate confirming the
Commencement Date. The lease term will continue for the time period specified in
the Schedule (the "Initial Term") starting as of the first day of the month
following the Commencement Date or on such date if it is the first day of the
month. The term will continue month to month after the Initial Term at the same
rental rate unless and until either you or Solarcom terminates it upon three
months' prior notice. Any such termination will be effective only on the last
day of the Initial Term or current extension.
7. Payment of Rental and Other Charges
You will pay Solarcom as rental for the Equipment provided under a Schedule,
in advance on the first day of each month during the Initial Term and any
continuation thereof, without prior notice or demand, and free of all claims or
set-offs, the monthly rental charge specified in the Schedule (the "Monthly
Rental"). If the Commencement Date is not the first day of a month, you will
make an interim rental payment in an amount equal to one thirtieth of the
Monthly Rental for each day from and including the Commencement Date through and
including the last day before the start of the Initial Term. If all of the
Equipment is not delivered and installed at one time, you will pay to Solarcom
partial rent in a mutually agreed upon amount for the period beginning on the
date the first piece of equipment is delivered and installed until the last day
before the Commencement Date.
Unless stated otherwise in a Schedule, you will pay all charges for
transportation and transit insurance to and from your location and for the
installation of the Equipment. In any event, you are responsible for payment of
all rigging and drayage charges, structural alterations, rental of heavy
equipment and other expenses necessary to place the Equipment at the desired
installation site.
You also agree to pay any taxes, fees or other charges (plus any interest and
penalties not arising solely from Solarcom's negligence) imposed or assessed
with respect to a Schedule, the Monthly Rental or other charges paid thereunder,
or on the Equipment or its use. This includes all sales, use and property taxes
but not taxes based upon Solarcom's net income.
Solarcom will invoice you for Monthly Rental in advance of the applicable
invoice period. However, receipt of an invoice is not a condition to timely
payment of Monthly Rental. Any interim rental or other charges will be invoiced
as they are incurred with payment being due as stated in the invoice.
Payment will be made in U.S. Dollars to Solarcom's address set forth in each
invoice or to such other place as Solarcom may designate in writing. Any payment
(interim rental, Monthly Rental, accelerated rental due upon default, etc.) not
made within ten days after the due date will accrue interest, from the due date
and until it is paid, at a lower of 18% simple interest per annum or the maximum
rate allowed by law.
Any payment received from you will be applied as follows (1) if there is a
statement (i.e., check stub, invoice copy) accompanying the payment, to any
amount you owe under the indicated Schedule; or (2) if there is no accompanying
statement, to any amount you owe Solarcom. If bankruptcy proceedings are brought
by or against you within ninety days after Solarcom receives a payment, the
payment will be deemed applicable in reverse order of maturity to obligations
then due.
8. Ownership, Liens and Inspection
Solarcom does not by this Master Lease or any Schedule transfer title to the
Equipment to you. All the Equipment will remain Solarcom personal property. You
will not attach or affix the Equipment to any real property. Solarcom has the
right to display reasonable notice of its ownership on the Equipment and you
agree not to alter, deface, cover or remove any such notice. You also agree to
keep the Equipment free of any labeling indicating that you or any third party
own the Equipment.
You agree to execute and deliver to Solarcom such documentation as Solarcom
requests to protect its right, title and interest in the Equipment, including
Uniform Commercial Code ("UCC") financing statements. You authorize Solarcom to
insert in each UCC form and Schedule the serial numbers and other identifying
data of the Equipment.
Although it is the intent of this Master Lease and each Schedule to create a
true lease and not a lease intended as security, as a precaution, you hereby
grant to Solarcom a security interest in the Equipment (including all proceeds)
to secure all your obligations under the Schedule.
You will not permit the Equipment to become subject to any third party lien,
claim or encumbrance (each referred to as a "lien"). You will promptly notify
Solarcom of any lien or of any judicial process affecting the Equipment and, at
your expense, take whatever action is necessary to promptly discharge the lien.
Excepted from this obligation is any lien resulting from Solarcom's action or
inaction or a claim against Solarcom (other than one arising from your failure
to fulfill your obligations).
If the Equipment included in the Schedule consists of a feature, device or
upgrade for equipment not leased from Solarcom, you represent that you own that
equipment or have the permission of the owner, and any lien holders, to install
the feature, device or upgrade and transfer any removed parts to Solarcom. Title
to such removed parts will pass to Solarcom, free of any liens, upon
installation of the Equipment.
With respect to any Equipment you sell to Solarcom and in turn lease back
under a Schedule, you warrant that Solarcom's ownership will be free of all
liens (other than those Solarcom creates.). The delivery and installation
provisions of this Master Lease will not apply and the Commencement Date will be
the date title to the Equipment passes to Solarcom. In addition, the Equipment
will be leased to you "AS IS" without any warranty except for the covenant of
quiet enjoyment.
9. Use of Equipment
During the term of a Schedule, you have the right to use the Equipment for
your lawful business purposes (and not for consumer, personal, home or family
purposes) in the manner for which it was designed provided you are not in
default under the Schedule. During the term of a Schedule you will keep the
Equipment in productive use and in your sole possession and control and will
remove the Equipment from the installation site specified in the Schedule only
after giving Solarcom thirty days' prior notice. The new installation site must
be within the continental United States. You will be responsible for all costs
and expenses associated with the relocation and the measures Solarcom deems
necessary to protect its title and interest in the Equipment.
You will allow Solarcom or its designee full, free and safe access to the
Equipment during normal business hours to inspect the Equipment, the manner in
which it is being used, and your maintenance records, and to fulfill Solarcom's
obligations and exercise its rights. All storage media and supplies used with
the Equipment will be furnished by you and must meet manufacturer
specifications.
10. Maintenance
You agree to keep in effect, at your expense and throughout the term of a
Schedule, a contract with the manufacturer or another reputable maintenance
vendor providing for continuous, fixed price maintenance coverage for the
Equipment. You will cause the maintenance provider to keep the Equipment in good
working order at all times during the term, with the latest engineering levels
and safety changes incorporated.
If you obtain maintenance coverage from other than the manufacturer, you will
reimburse Solarcom for the cost of having the manufacturer recertify the
Equipment when returned to Solarcom. Upon request, you will furnish Solarcom
with a copy of your maintenance contract.
11. Alterations
Subject to the terms of this Section, you may, at your expense and upon
reasonable prior notice to Solarcom, install on or attach to the Equipment any
unmodified accessory, feature or device ("alteration") manufactured or sold by
the Equipment manufacturer for use with the Equipment provided it is properly
installed and capable of being removed without causing material damage to the
Equipment. Solarcom's consent is required before the installation of any other
alteration.
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Prior to the return of the Equipment, you may (and will at Solarcom's
request), at your expense, remove any alteration installed on the Equipment,
other than prescribed engineering and safety changes, which is not leased from
Solarcom. Any alteration not removed will become Solarcom's property free of any
liens. Solarcom shall have a right of first refusal on all alterations to be
installed on or attached to the Equipment and on any equipment which will
replace one or more items of Equipment.
12. Upgrade of Equipment
At your request, Solarcom will lease to you additional features, devices and
model upgrades (an "Upgrade") generally available for the Equipment. Upon
receipt of a request, Solarcom will quote to you the applicable rental rate and
estimated delivery schedule. You must not be in default under any Schedule at
the time you seek to upgrade Equipment.
13. Risk of Loss and Insurance
You are responsible for loss of and damage to the Equipment from the date it
is delivered to you and until it is returned to Solarcom. Your obligations under
a Schedule will not terminate or be affected by reason of any loss of or damage
to the Equipment during such time from any cause whatsoever.
In the event of loss of or damage to the Equipment you will promptly repair
or replace the equipment. A replacement must be of the same type and utility and
have a current fair market value, and a projected fair market value as of the
end of the Initial Term or current extension, equal to that of the item being
replaced. Promptly upon installation, you will ensure that Solarcom receives
good and clear title to the replacement which then will become subject to the
Schedule.
At all times during the term of a Schedule and until the Equipment is
returned to Solarcom, you will keep the Equipment insured at full insurable
value, at your expense, with fire, theft and extended coverage and such other
coverage customarily maintained by companies engaged in a similar business, and
you will maintain public liability insurance (personal injury and property
damage) with respect to the Equipment.
Such insurance will be reasonably satisfactory to Solarcom as to form, amount
and insurer, will list Solarcom and any designee as an additional insured and
loss payee according to their respective interests, and will provide for at
least thirty days' prior written notice to Solarcom of any cancellation or
reduction of coverage. Within five days after the Commencement Date, and
thereafter as Solarcom may reasonably request, you will furnish Solarcom with
satisfactory evidence of such insurance.
You will promptly notify Solarcom of all details concerning any loss of or
material damage to the Equipment. Proceeds received from the insurance you
maintain will be applied first to any past due amounts owed to Solarcom and then
to the cost of the repair or replacement of the Equipment (so long as you are
not in default under the Schedule). You will cooperate in the collection and
enforcement of any such insurance.
14. Warranties
Solarcom warrants to you that, as of the Commencement Date, Solarcom is the
lawful owner of the Equipment and the Equipment (other than items normally not
subject to maintenance or manufacturer certification) will be eligible for the
manufacturer's standard prime shift maintenance coverage provided you request
such coverage in writing prior to installation of the Equipment and the
Equipment is located within an authorized service area. Solarcom also warrants
that, so long as you are not in default under the Schedule, you will be entitled
to the quiet use and enjoyment of the Equipment without interruption by Solarcom
or anyone claiming through Solarcom.
With respect to new Equipment, the manufacturer may provide its own warranty
subject to its standard terms. Any reference in a Schedule to a warranty for the
Equipment includes only the manufacturer's applicable warranty. Any transferable
manufacturer warranty is hereby assigned to you for the term of the Schedule.
You will enforce and resolve all such claims direct with the manufacturer. The
proceeds of any successful warranty claim will be applied to the repair or
replacement of the affected Equipment. Provided you are not then in default
under the Schedule, Solarcom will cooperate in the resolution of such a claim.
You will promptly indemnify Solarcom for all costs, expenses and liability it
incurs in the course of such cooperation.
SOLARCOM MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR CONFORMITY OF THE EQUIPMENT TO ANY
SPECIFICATION, LAW, RULE OR REGULATION.
Your exclusive remedy for any noncompliance with Solarcom's warranty of
maintenance eligibility is for Solarcom, at its option and expense and within a
reasonable time, to repair or replace the Equipment. Any such claim must be
presented to Solarcom in writing within ten days after delivery of the
Equipment. Solarcom will not be liable for any service charge or other expense
unless approved in advance by Solarcom.
15. Limitation of Liability
You agree that Solarcom will not be liable, to any extent whatever, for the
selection, merchantability, suitability, fitness, operation or performance of
the Equipment or the results obtained.
Under no circumstances will Solarcom be liable for any third party claims
against you for losses or damages or for any special, incidental or
consequential damages (including lost profits or savings), even if Solarcom is
informed of their possibility. You expressly waive any rights to recover
special, incidental or consequential damages which may be conferred upon you by
UCC Sections 2A-519 and 2A-520 (a uniform state law on equipment leasing).
16. Indemnification
You agree to indemnify Solarcom and its successors and assigns against all
losses, damages, claims, costs and expenses, including reasonable legal expenses
(other than such as may be occasioned solely by the negligence or willful
misconduct of the indemnified party) arising out of the possession, use,
condition, selection or performance of the Equipment or any accident in
connection with the Equipment.
You will notify Solarcom promptly of any claim or accident pertaining to the
Equipment and of all pertinent information. Copies of all documents pertaining
to the matter will be provided to Solarcom upon request.
17. Return of Equipment
Promptly after the term of a Schedule ends you will return the Equipment, in
the same condition as when received except for reasonable wear and tear, to such
location in the continental United States as Solarcom designates. Before
returning the Equipment, you will remove your programs and data. Solarcom will
not be liable for loss of or damage to any such items. If manufacturer
deinstallation service is required for continued maintenance eligibility
certification of Equipment, you will utilize and pay for such service.
If the Equipment is not returned within ten days after the end of the term,
or if repair or other work is necessary to place the Equipment in the condition
required by this Master Lease, you will pay twice the Monthly Rental for the
period of the delay or the period necessary to complete such work, as
applicable, together with all costs incurred. Solarcom's acceptance of such rent
will not renew the term or waive its right to the prompt return of the Equipment
in proper condition.
The Equipment will be returned in the manufacturer's standard packing
material or equivalent. All cables and manuals provided with the Equipment also
must be returned.
18. Default
You will be in default under a Schedule if: (i) you do not pay an installment
of Monthly Rental or any other charge within ten days after the date it becomes
due; (ii) you do not perform any other obligation unless you fully perform the
obligation within fifteen days after you first learn or are notified of the
unfulfilled obligation; (iii) you or a guarantor admit in writing the inability
to pay an indebtedness as it becomes due or suffer an adverse material change in
financial condition, or if bankruptcy, insolvency, reorganization or similar
proceedings are commenced by or against you or a guarantor, or if a receiver,
trustee or similar officer is appointed for your or a guarantor's business, or
there is an assignment of your or a guarantor's property for the benefit of
creditors;
(iv) any of your or a guarantor's representations made pursuant to the
Schedule or on any document, statement or certificate given in connection with
the Schedule prove false or misleading in any material respect; (v) you default
under any other Schedule or agreement in effect between you and Solarcom; or
(vi) a guarantor repudiates any of its obligations or terminates its existence
without its obligations having been assumed by a successor reasonably
satisfactory to Solarcom.
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Upon the occurrence of a default, Solarcom, may, at its option and without
notice, at any time thereafter do one or more of the following:
(i) initiate proceedings to enforce performance of the applicable covenants
or to recover damages for their breach; (ii) declare any or all unpaid Monthly
Rental to be immediately due and payable; (iii) take possession of the
Equipment, without court order, posting of bond or other process and without
liability for damages occasioned by such taking of possession; or (iv) sell or
re-lease the Equipment as is commercially reasonable (in bulk or parcels), free
and clear of any rights you may have, and without obligation to give preference
to the Equipment over other similar equipment of Solarcom. The exercise of any
such remedy or other remedy will not constitute a termination of a Schedule
unless Solarcom so notifies you in writing.
With respect to Equipment returned to or repossessed by Solarcom, you will
pay upon demand a sum equal to the aggregate of:
(a) the total Monthly Rental and other amounts accruing through the last day
of the month following the month in which Solarcom recovers the Equipment (the
"Accrual Termination Date" or "ATD", which allows Solarcom a reasonable period
to place the Equipment in the condition required by this Master Lease): (b) the
excess, if any, of (i) the present worth of the Monthly Rental which otherwise
would have accrued from the ATD through the end of the Initial Term or current
extension over
(ii) the present worth of the Equipment rental value Solarcom estimates to be
obtainable for such period, and (c) all costs incurred in the recovery,
reconditioning, storage and disposition of the Equipment and otherwise resulting
from the default or exercise of Solarcom's remedy or remedies, including
attorneys' fees and legal expenses.
For any Equipment which is destroyed or not returned to or not repossessed by
Solarcom, you will pay upon demand a sum equal to the aggregate of: (aa) the
total Monthly Rental and other amounts accruing through the date of the demand
for payment; (bb) the present worth of the Monthly Rental which otherwise would
have accrued from such date to the end of the Initial Term or current extension;
(cc) the present worth of the Equipment fair market sales value Solarcom
estimates to be obtainable at the end of the Initial Term or current extension,
and (dd) all costs resulting from the default or exercise of Solarcom's remedy
or remedies, including attorneys' fees and legal expenses.
If for any reason a Schedule is determined to be other than a true lease,
upon default you will pay upon demand a sum equal to the aggregate of:
subparagraphs (aa), (bb), and (dd) above.
Each indicated sum, as applicable, represents the agreed upon damages for
Solarcom's loss of a bargain and not a penalty. "Present worth" will be computed
in each case at the bank prime loan interest rate published in the Wall Street
Journal on the applicable date of the demand for payment. Any payment made to
Solarcom must include all accrued late charges and any sales or use taxes
Solarcom is required to pay as the result of the receipt of such payment. Except
as provided in this Section, you waive any rights conferred by statute or
otherwise that may require Solarcom to sell, re-lease or otherwise use or
dispose of the Equipment or that may limit or modify any of Solarcom's rights or
remedies.
If you fail to perform any of your obligations, Solarcom may perform them but
will not be obligated to do so. You will reimburse Solarcom upon demand for any
out of pocket expenses it incurs. No right or remedy is exclusive and each is
cumulative to any other remedy provided for in this Master Lease or in a
Schedule or at law or in equity and may be exercised concurrently or separately
from time to time, provided it is without the effect of obtaining a double
recovery. 19. Force Majeure
Except for any payment or insurance obligation, neither you nor Solarcom will
be responsible for any delay or failure in performance caused by fire, flood,
explosion, war, strike, embargo, government requirement, civil or military
authority, Act of God, act or omission of carriers or suppliers or other similar
causes beyond your or Solarcom's respective control.
20. Assignment and Subletting
YOU AGREE NOT TO ASSIGN, TRANSFER OR DISPOSE OF ALL OR ANY PART OF YOUR
RIGHTS OR OBLIGATIONS UNDER THIS MASTER LEASE OR ANY SCHEDULE OR SUBLET ANY
EQUIPMENT WITHOUT SOLARCOM'S PRIOR WRITTEN CONSENT. ANY ATTEMPT TO DO SO WITHOUT
SUCH CONSENT IS VOID.
NO PERMITTED ASSIGNMENT OR SUBLEASE WILL RELEASE YOU FROM ANY OF YOUR
OBLIGATIONS.
Solarcom may assign to a successor of its choosing, which may include a
secured party, any of Solarcom's rights under a Schedule and to the Equipment,
and Solarcom's successor (the "Assignee") may so transfer and assign. All
discretions, powers and rights Solarcom has under a Schedule may be exercised by
an Assignee but you will not look to the Assignee to fulfill any of Solarcom's
obligations. Any assignment Solarcom makes, of its interest in a Schedule or in
the Equipment, will be subject to your right to possess and use the Equipment so
long as you are not in default under the Schedule.
THE RIGHTS OF AN ASSIGNEE WILL NOT BE SUBJECT TO ANY DEFENSE, SET-OFF,
RECOUPMENT, CLAIM OR COUNTERCLAIM YOU MAY HAVE AGAINST SOLARCOM AND YOU AGREE TO
UNCONDITIONALLY PAY TO THE ASSIGNEE ALL MONTHLY RENTAL AND OTHER AMOUNTS DUE AND
TO BECOME DUE UNDER THE SCHEDULE. You will consent to and acknowledge an
assignment by promptly executing and delivering to Solarcom or the Assignee such
documentation as may be requested to secure and complete the assignment.
You acknowledge that an assignment by Solarcom will neither materially change
your obligations nor materially increase your burden or risk under a Schedule.
Subject to foregoing, each Schedule inures to the benefit of and is binding
upon your and Solarcom's respective successors and assigns.
21. General
This Master Lease and each Schedule are the complete agreement regarding the
Equipment listed in the Schedule and replace any prior oral or written
communications between you and Solarcom. A Schedule will not become effective
until signed by Solarcom's authorized representative.
Additional or different terms in any purchase order or other written
communication from you are void unless Solarcom accepts such terms in writing.
Failure to object to such terms or the referencing of a purchase order number in
connection with a delivery or an invoice will not be deemed an agreement to such
terms.
Any notice, request, consent or approval required or given under this Master
lease or a Schedule to be effective must be in writing and will be deemed
effective upon receipt, or if delivery is refused then on the date sent, if
mailed postage prepaid by certified mail, return receipt requested, to Solarcom
at its address appearing at the top of this Master Lease (attention: "Chief
Financial Officer") or to you at the address listed in a Schedule. Either you or
Solarcom may change its notice address by notice given in accordance with this
provision.
If there is a conflict among the terms of this Master Lease and any Schedule,
those of a Schedule prevail over those of this Master Lease but only with
respect to the particular Schedule. Section headings in this Master Lease or a
Schedule are for convenience and are not intended as an aid in interpretation.
Any terms of this Master Lease or a Schedule which by their nature extend beyond
its termination remain in effect until fulfilled. This includes all
indemnification and limitation of liability provisions.
Any subsidiary you own by more than fifty percent and any company which owns
you by more than fifty percent may submit a Schedule under this Master Lease
provided such subsidiary or company is located within the continental United
States.
All information exchanged is nonconfidential. If either you or Solarcom
requires the exchange of confidential information, it will be made under a
signed Solarcom confidentiality agreement.
THIS MASTER LEASE AND EACH SCHEDULE WILL BE DEEMED TO HAVE BEEN MADE IN THE
STATE OF GEORGIA BY VIRTUE OF SOLARCOM'S HAVING ACCEPTED IT IN THAT STATE AND
WILL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF GEORGIA WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICT OF LAW OR CHOICE OF LAW. ANY CONTROVERSY OR CLAIM ARISING
OUT OF OR RELATING TO THIS MASTER LEASE OR ANY SCHEDULE SHALL BE SETTLED BY
ARBITRATION ADMINISTERED IN ATLANTA, GEORGIA BY THE AMERICAN ARBITRATION
ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES, PROVIDED THE
ARBITRATOR WILL NOT BE AUTHORIZED TO AWARD PUNITIVE OR EXEMPLARY DAMAGES. ANY
JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT OF
COMPETENT JURISDICTION. THE COSTS OF SUCH ARBITRATION (INCLUDING ALL ATTORNEYS'
FEES AND LEGAL EXPENSES) WILL BE BORNE BY THE NONPREVAILING PARTY.