Last updated: Jun 23th, 2025
This SUB-LEASE AGREEMENT (“Sub-Lease”) is entered by and between Micromart Inc. (“Sub-Lessor”) and the Operator on the Order form (“Sub-Lessee”). Each of Sub-Lessor and Sub-Lessee may be hereinafter referred to as a “Party” respectively, and as the “Parties” collectively.
1. DEFINITIONS
a) “Basic Rental” means the rental for the leased Equipment as set forth in such Order Form.
b) “Equipment” means the equipment, machines, and other items listed in the Order Form, together with any additions, attachments, accessories and accessions thereto and any substitutions, replacements or exchanges therefor.
c) “Lessor” means CSC Leasing Co., who, pursuant to the terms and conditions of a Master Lease Agreement dated June 4, 2025 between Lessor and Sub-Lessor (“Master Lease Agreement”), has leased the Equipment to the Sub-Lessor.
d) “Security Deposit” means any payment made by the Sub-Lessee to Sub-Lessor as a security deposit in connection this Sub-Lease.
e) “Term” means the term of the Sub-Lease as set out on the Order Form, and any renewal thereof.
f) “Vendor” means a manufacturer, supplier or vendor of the Equipment, as may be identified in the Order Form.
2. LEASE OF EQUIPMENT
a) Sub-Lessor agrees to lease to Sub-Lessee and Sub-Lessee agrees to lease from Sub-Lessor, in accordance with the terms and conditions of this Sub-Lease including the Order Form, all Equipment. Sub-Lessee acknowledges and agreements that this Sub-Lease is subject to the terms and conditions of the Master Lease Agreement and the applicable schedule pursuant to which Lessor has agreed to lease the Equipment to the Sub-Lessor (“MLA Schedule”).
b) The Parties intend and agree that: (i) the Equipment shall remain personal property, and Lessor’s title thereto shall not be impaired, notwithstanding its being affixed to any real property; (ii) this Sub-Lease constitutes a true lease, which is a “finance lease,” as such term is defined in Article 2A of the Uniform Commercial Code (“UCC”), and not a sale or retention of security interest; and (iii) title to the Equipment shall at all times remain in Lessor, and Sub-Lessee shall acquire no interest therein other than a leasehold interest.
3. TERM OF SUB-LEASE
The Term of this Sub-Lease shall commence on the delivery date of the equipment (“Start Date”) and shall continue for the period set out on the Order Form, unless earlier terminated. The Term shall automatically terminate if the MLA Schedule is terminated or the Micromart General Terms and Conditions between Sub-Lessor and Sub-Lessee are terminated (the “General Terms”).
4. RENTAL
a) Sub-Lessee shall pay to Sub-Lessor as rental for the Equipment the Basic Rental set forth in the Order Form and this Section 4. The Basic Rental shall begin accruing on the Start Date and be due and payable in advance on or before the first (1st) day of each month; Sub-Lessee agrees that Basic Rental and any other payments due hereunder are payable by Sub-Lessee regardless of Sub-Lessee’s receipt of an invoice therefor. In the event Sub-Lessee does not make payment of any Basic Rental or other monies due hereunder within five (5) days of its due date, Sub-Lessee shall be liable to Sub-Lessor for a late payment fee of five percent (5%) of the amount unpaid, and shall pay such amount promptly to Sub-Lessor or Sub-Lessor’s assignee.
b) In addition to the Basic Rental, Sub-Lessee shall pay to Sub-Lessor an amount equal to all taxes that are levied or based on this transaction, the Basic Rental, this Sub-Lease, and/or the Equipment or its use, lease, sale, operation, control or value, including, without limitation, state and local sales, use, excise, purchase, property, added value or other taxes, or amounts in lieu thereof paid or payable by Sub-Lessor in respect of the foregoing (collectively, “Taxes”), but excluding only federal and state income taxes of Sub-Lessor. Personal property taxes, if any, with respect to the Equipment, shall be filed with the appropriate authorities by Sub-Lessor, and reimbursed by Sub-Lessee as and when invoiced by Sub-Lessor. Sub-Lessee shall be liable for any penalties, interest and other charges in respect of said Taxes due to improper filing as a result of a change in the location of the Equipment or Sub-Lessee not reported to Sub-Lessor in writing.
c) Sub-Lessee hereby authorizes Sub-Lessor to initiate ACH or other electronic debits to Sub-Lessee’s account for the Basic Rental and Taxes and authorizes its named depository financial institution to honor such debit entries against such account. In addition to Basic Rental and Taxes, Sub-Lessee shall pay all expenses incurred in connection with Sub-Lessee’s use, operation, maintenance and return of the Equipment, including, but not limited to, installation and insurance.
d) Sub-Lessee's obligation to pay any Basic Rental and any other amounts, and otherwise to perform its obligations under or with respect to, this Sub-Lease, is and shall be absolute and unconditional and shall not be affected by any circumstances whatsoever, including any right of setoff, counterclaim, recoupment, deduction, defense or other right which Sub-Lessee may have against Sub-Lessor, Lessor, any Vendor or anyone else, for any reason whatsoever.
5. OWNERSHIP, LOCATION, INSPECTION AND USE:
a) The Equipment shall at all times remain the property of Lessor and remain personal property notwithstanding the manner in which it may be attached or affixed to real property, and Sub-Lessee acknowledges and agrees that it does not and shall not obtain any title to the Equipment by virtue of the execution of this Sub-Lease or by payment or performance hereunder. At Sub-Lessor’s request, Sub-Lessee will affix tags, decals, or plates to the Equipment showing Lessor’s ownership. Unless authorized by Sub-Lessor in writing, Sub-Lessee is expressly prohibited from labeling or affixing to the Equipment any tags, decals, or plates that may indicate the Equipment is owned by Sub-Lessee.
b) Sub-Lessee shall: (i) use the Equipment solely in the continental United States and in the conduct of its business, for the purpose for which the Equipment was designed, in a careful and proper manner, and shall not permanently discontinue use of the Equipment; and (ii) operate, maintain, service and repair the Equipment, and maintain all records and other materials relating thereto, (A) in accordance and consistent with: (1) the Vendor’s recommendations and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by such Vendor or service provider; (2) the requirements of all applicable insurance policies; (3) any maintenance and service contracts with any Vendor or other maintenance provider, so as to preserve all of Lessor’s, Sub-Lessee's and Sub-Lessor's rights thereunder, including all rights to any warranties, indemnities or other rights or remedies; and (4) all applicable laws and regulations, and (B) without limiting the foregoing, so as to cause the Equipment to be in good repair and operating condition and in at least the same condition as when delivered new, except for ordinary wear and tear resulting despite Sub-Lessee's full compliance with the terms hereof.
c) Sub-Lessee agrees that the Equipment shall be located at the location set forth in the Order Form and Sub-Lessee shall not relocate the Equipment without the prior written consent of Sub-Lessor, and then only to a location within the continental United States and at Sub-Lessee’s sole expense.
d) Provided Lessor and Sub-Lessor comply with Sub-Lessee’s reasonable security requirements, Lessor, Sub-Lessor and/or their respective agents shall have free and unobstructed access to the Equipment upon prior, reasonable notice and during normal business hours for the purpose of inspection and/or for any other purpose contemplated by this Sub-Lease. Further, if the Equipment is located on leased premises, Sub-Lessee shall provide to Lessor or Sub-Lessor such landlord waivers as Lessor or Sub-Lessor reasonably requests. At its sole discretion, Lessor or Sub-Lessor may delay the placement of purchase orders, payments to Vendors for Equipment and/or the delivery of any Equipment until receipt of such landlord waivers.
e) Sub-Lessee shall immediately provide written notice to Sub-Lessor concerning any claim of damage or loss arising out of the use, manufacture, functioning or operation of the Equipment. Sub-Lessee shall keep the Equipment free and clear of all liens, encumbrances, interests, and claims of any kind and nature.
f) If contrary to the Parties’ intentions a court determines that this Sub-Lease is not a true “lease” under the UCC, in order to secure the prompt payment of the Basic Rental and all of the other amounts from time to time outstanding with respect hereto, and the performance and observance by Sub-Lessee of all of the provisions hereof and thereof, Sub-Lessee hereby grants to Sub-Lessor a security interest in and lien on all of Sub-Lessee’s right, title and interest in and to (whether now existing or hereafter created): (i) the Equipment, and (ii) any and all insurance and/or other proceeds of the Equipment. Sub-Lessee irrevocably authorizes Sub-Lessor to file UCC financing statements (“UCCs”), and other filings with respect to the Equipment. Without Sub-Lessor’s prior written consent, Sub-Lessee shall not file any corrective or termination statements or partial releases with respect to any UCCs filed by Sub-Lessor pursuant to this Sub-Lease.
6. WARRANTIES
a) So long as no Event of Default has occurred and is continuing, Sub-Lessee may exercise Sub-Lessor’s rights, if any, under any manufacturer’s warranty with respect to the Equipment. Sub-Lessee’s exercise of such rights shall be at its sole risk, shall not result in any prejudice to Sub-Lessor or Lessor, and may occur only during the Term.
b) SUB-LESSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE WITH RESPECT TO THE CONDITION OR PERFORMANCE OF THE EQUIPMENT, ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WITH RESPECT TO PATENT INFRINGEMENT OR THE LIKE. SUB-LESSOR IS NOT RESPONSIBLE FOR ANY REPAIRS OR SERVICE TO OR DEFECTS IN THE EQUIPMENT OR THE OPERATION THEREOF. Sub-Lessee has selected each Vendor and directed Sub-Lessor to acquire the Equipment from such Vendor(s) and Sub-Lessee acknowledges and agrees that Sub-Lessor is not an agent of any Vendor.
c) SUB-LESSOR SHALL HAVE NO LIABILITY TO SUB-LESSEE FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF OR IN CONNECTION WITH, WHETHER DIRECTLY, INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY, (I) THE EQUIPMENT, (II) ANY DEFICIENCY OR DEFECT THEREIN, (III) ANY INADEQUACY OF THE EQUIPMENT FOR ANY PURPOSE, (IV) THE USE, PERFORMANCE, OR LOSS OF SERVICE OF THE EQUIPMENT, OR (V) ANY LOSS OF BUSINESS RESULTING FROM ANY OF THE FOREGOING.
d) Sub-Lessee waives all rights and remedies Sub-Lessee may have under Sections 2A-508 through 2A-522 of Article 2A of the UCC, including any right to cancel or repudiate his Sub-Lease or to reject or revoke acceptance of any Equipment.
e) Sub-Lessee will defend, protect, indemnify and hold harmless Sub-Lessor and its respective officers, directors, employees, agents, affiliates, successors and assigns (collectively, “Indemnitees”) against any and all losses, damages, injuries, claims, demands, liabilities, costs, and expenses, including, without limitation, reasonable attorneys’ fees (collectively, “Claims”), arising out of or in connection with this Sub-Lease or any other document relating thereto and/or the ordering, acquisition, delivery, installation, possession or rejection of the Equipment, the possession of any property to which the Equipment may be attached from time to time, the maintenance, use, condition, ownership or operation of any Equipment, and by whomsoever owned, used, possessed or operated, the existence of latent and other defects (whether or not discoverable by Sub-Lessor or Sub-Lessee), any claim in tort for negligence or strict liability, and any claim for patent, trademark or copyright infringement, or the loss, damage, destruction, theft, removal, return, surrender, sale or other disposition of the Equipment, including any Claims involving or alleging environmental damage, or any criminal or terrorist act, or for any other reason whatsoever. If any Claim is made against Sub-Lessee or an Indemnitee, the party receiving notice of such Claim shall promptly notify the other, but the failure of the party receiving notice to so notify the other shall not relieve Sub-Lessee of any obligation hereunder, except for any loss or damage caused by the willful misconduct or gross negligence of Sub-Lessor.
f) The indemnities and assumptions of liabilities provided for herein shall survive any termination or expiration of this Sub-Lease.
g) In the event that Sub-Lessee pursues a Vendor for Claims, demands, or other disputes arising out of or in connection with any alleged default or breach by such Vendor, or in connection with any warranty for the Equipment, and there exists an Event of Default by Sub-Lessee hereunder, then Sub-Lessee shall immediately remit, transfer, and/or convey to Sub-Lessor the amount of any award, grant, or other receipt of proceeds, damages, or other compensation from or against the Vendor necessary to cure any payment default(s). Sub-Lessee’s failure to convey such proceeds to Sub-Lessor shall be an Event of Default hereunder. Sub-Lessee agrees to take all necessary and reasonable steps to transfer any such proceeds to Sub-Lessor, including, without limitation, by way of the execution of any assignment or security agreement.
7. INSURANCE
The risk of loss of, damage to, or destruction of the Equipment shall be borne by Sub-Lessee. Sub-Lessee shall obtain and maintain for the entire term of this Sub-Lease, at its own expense, insurance against loss or damage to the Equipment, including, without limitation, loss by fire and hazard (including so-called “all risks and extended coverage”, including floods, windstorms and earthquakes), and theft, in such amounts that shall not be, at any point in time, less than the greater of: (i) the full costs that the Sub-Lessee would be obligated to pay to replace the Equipment (“Replacement Value”); or (ii) the Stipulated Loss Value (as hereinafter defined). Additionally, Sub-Lessee shall be required to obtain and maintain liability insurance as may be required by Sub-Lessor from time to time.
Sub-Lessee shall be the named insured and Sub-Lessor shall be named as additional insureds and lender’s loss payable under such policies of insurance as Sub-Lessor’s interests may appear. Sub-Lessee shall provide or cause to be provided to Sub-Lessor insurance endorsements with respect to such policies of insurance as reasonably required by Sub-Lessor from time to time. Sub-Lessee shall furnish to Sub-Lessor a certificate of insurance or other evidence reasonably satisfactory to Sub-Lessor that such insurance coverage is in effect and which includes a stipulation that coverages will not be cancelled or diminished without at least thirty (30) days' prior written notice to Sub-Lessor; provided, however, that Sub-Lessor shall be under no duty either to: (a) ascertain the existence of or to examine any such insurance policy; or (b) to advise Sub-Lessee in the event such insurance coverage shall not comply with the requirements hereof. Sub-Lessee shall cause to be provided to Sub-Lessor, prior to the scheduled expiration or lapse of such insurance coverage, evidence satisfactory to Sub-Lessor of renewal or replacement coverage.
In the event that the Equipment shall be or become lost, stolen, destroyed, irreparably damaged, or shall be requisitioned or taken over by any governmental authority under the power of eminent domain or otherwise during the Term (any such occurrence being herein called a “Casualty Occurrence”), Sub-Lessee shall promptly provide written notice to Sub-Lessor. Sub-Lessee irrevocably appoints Sub-Lessor as Sub-Lessee's attorney-in-fact (which power shall be deemed coupled with an interest) to execute, endorse and deliver any documents, checks or drafts relating to or received in payment for any loss or damage under the policies of insurance required by this Sub-Lease. On the payment date for Basic Rental next succeeding the Casualty Occurrence, Sub-Lessee shall pay to Sub-Lessor an amount equal to the Basic Rental due on such date and any other rentals or sums then currently or past due, plus an amount equal to the greater of the Replacement Value of the Equipment or the Stipulated Loss Value of the Equipment. At the time such amounts are paid by Sub-Lessee in full, this Sub-Lease shall be terminated only to the extent relating to such Equipment, and no further rent with respect to such Equipment shall be due from Sub-Lessee. In the event of any settlement under this Section 7, Sub-Lessee shall be entitled to a credit (not to exceed the Replacement Value or Stipulated Loss Value actually paid by the Sub-Lessee to Sub-Lessor), for the amount of any proceeds of any insurance or award actually received by Sub-Lessor on account of the Casualty Occurrence.
8. ASSIGNMENT BY LESSOR
Sub-Lessee acknowledges that Lessor may at any time and from time to time, without consent of Sub-Lessee, assign, sell or encumber, whether absolute or as collateral security for indebtedness of Sub-Lessor, all or any part of the Equipment.
9. MAINTENANCE AND REPAIRS
a) Sub-Lessee shall at all times during the Term, at its own expense, maintain and keep the Equipment in good working order, repair, and condition, and make all necessary adjustments, repairs, and replacements, and shall use and require each piece of Equipment to be used in a manner consistent with any warranty and contract maintenance program provided or required by the Vendor of the Equipment.
b) Any modification or addition to the Equipment that is required by this Sub-Lease or any applicable law shall be made by Sub-Lessee at Sub-Lessee’s sole cost. Title to all such parts, modifications and additions to the Equipment immediately shall vest in Lessor, without any further action by Sub-Lessor or any other person, and they shall be deemed incorporated in the Equipment for all purposes. Unless replaced in accordance with this Section 9, Sub-Lessee shall not remove any parts originally or from time to time attached to the Equipment, if such parts: (i) are essential to the operation of the Equipment; (ii) are required by any other provision of this Sub-Lease; or (iii) cannot be detached from the Equipment without materially interfering with the operation of the Equipment or adversely affecting the value, utility and remaining useful life which the Equipment would have had without the addition of such parts. Except as permitted in this Section 9, Sub-Lessee shall not make any alterations to the Equipment.
10. TERMINATION OPTIONS AND REDELIVERY OF EQUIPMENT TO SUB-LESSOR
Upon the termination or expiration of this Sub-Lease, Sub-Lessee shall deliver possession of the Equipment to Sub-Lessor as detailed below, unless Sub-Lessor and Sub-Lessee agree to renew this Sub-Lease on the terms set out in the Order Form in the case of the expiration of the Term.
a) Sub-Lessee shall return the Equipment to Sub-Lessor complete, and in the same operating order, repair, condition and appearance as on the Start Date, reasonable wear and tear excepted, and free and clear of all liens whatsoever.
b) Pursuant to Sub-Lessor’s request, and at Sub-Lessee’s sole expense, Sub-Lessee shall promptly return the Equipment to such location in the continental United States as Sub-Lessor shall specify (“Designated Location”). At the end of the last business day of the Term, Sub-Lessee shall tender to Sub-Lessor the Equipment at the Designated Location, packed in a manner suitable for truck transportation.
c) Sub-Lessee shall be solely responsible and liable for and shall pay directly all transportation, insurance, rigging, drayage, packing, installation, de-installation, disconnection charges and other items of like nature, including without limitation all reasonable costs and expenses incurred with respect to shipping and delivering the Equipment to the Designated Location and any costs and expenses incurred with respect to insuring the Equipment while in route to the Designated Location.
d) If Sub-Lessee fails to return the Equipment in accordance with this Section 10 then, in addition to all other Remedies available to Sub-Lessor pursuant to Section 12 hereof, Sub-Lessee shall be obligated to pay Sub-Lessor Basic Rental until the Equipment is returned to and received by Sub-Lessor.
11. DEFAULT
Sub-Lessee shall have the right to quiet use and enjoyment of the Equipment provided that Sub-Lessee is not in default hereunder. Any of the following events shall constitute an event of default under this Sub-Lease (each, an “Event of Default”):
a) The failure by Sub-Lessee to pay the Basic Rental or other monies when due, if such failure continues for thirty (30) or more days; or
b) If any representation or warranty made by Sub-Lessee in this Sub-Lease or in any document or certificate furnished to Sub-Lessor in connection therewith shall prove to be incorrect, false, and/or misleading at any time in any material respect; or
c) If Sub-Lessee fails to maintain insurance in accordance with the terms of this Sub-Lease or Sub-Lessee fails to furnish to Sub-Lessor a certificate of insurance as required by Section 7 hereof within ten (10) days after Sub-Lessor’s written request; or
d) Immediately and without notice from Sub-Lessor, if any of the following events occur either voluntarily to or by the Sub-Lessee of Sub-Lessee’s obligations hereunder: (i) if Sub-Lessee makes an assignment for the benefit of creditors; (ii) if Sub-Lessee is named as a debtor in a petition in bankruptcy in the U.S. Bankruptcy Code, as amended; (iii) if Sub-Lessee admits in writing its inability to pay its debts as they become due; (iv) if Sub-Lessee files a voluntary petition in bankruptcy or any other petition or answer seeking for itself any reorganization, liquidation, dissolution, receivership, insolvency, or any other debtor relief generally under any present or future law, statute, or regulation, or files any answer admitting, or failing to deny, the material allegations of a petition filed against it for any such relief; (v) the adjudication of Sub-Lessee as bankrupt or insolvent; or (vi) the seeking or consenting to or acquiescence in, by Sub-Lessee, of the appointment of a trustee, receiver, or liquidator of Sub-Lessee, or the property of either party; or
e) Without notice from Sub-Lessor and upon forty-five (45) days after (i) the commencement of any proceeding against Sub-Lessee seeking any reorganization, liquidation, dissolution, receivership, insolvency or any other debtor relief generally under any present or future law, statute, or regulation, unless Sub-Lessee obtains dismissal of such proceeding within the forty-five (45) day period; or (ii) the appointment, without the consent or acquiescence of Sub-Lessee, of any trustee, receiver, or liquidator of Sub-Lessee, or the property of either party, unless Sub-Lessee is able to vacate such appointment within the forty-five (45) day period; or
f) If Sub-Lessee encumbers, pledges, or otherwise conveys or transfers the Equipment, or any portion thereof, to a third-party, as security or otherwise, except as otherwise permitted hereunder; or
g) The default by Sub-Lessee under any loan, lease, guaranty or other financial obligation to Sub-Lessor or its affiliates, which entitles Sub-Lessor or its affiliates to exercise remedies; or
h) The default by Sub-Lessee under any material loan, lease, guaranty or other material financial obligation to any third-party which default has been declared; or
i) The occurrence of a Change of Control;
j) The breach by Sub-Lessee of any other term, provision or covenant of this Sub-Lease, if Sub-Lessee fails to cure such breach within ten (10) days after receipt of written notice thereof from Sub-Lessor; or
k) The occurrence of a material default under the General Terms.
12. REMEDIES
Upon the occurrence of any Event of Default, Sub-Lessor, at its option, may declare this Sub-Lease in default and exercise one or more of the following remedies (“Remedies”), each without any presentment, demand, protest, or further notice (all of which are hereby expressly waived by Sub-Lessee): (a) terminate this Sub-Lease and Sub-Lessee’s rights thereunder; and/or (b) proceed by appropriate suit, action or other proceeding, at law or in equity, to enforce payment and performance by Sub-Lessee of its covenants and other obligations under this Sub-Lease, or to recover from Sub-Lessee, all damages and expenses that Sub-Lessor has sustained by reason of Sub-Lessee’s default and in the enforcement of the Remedies hereunder; and/or (c) enter any premises where any Equipment is located and take immediate possession of and remove (or disable in place) such Equipment by self-help, summary proceedings or otherwise without liability; and/or (d) use Sub-Lessee’s premises for storage without liability; and/or (e) sell, release or otherwise dispose of any or all of the Equipment, whether or not in Sub-Lessor’s possession, at public or private sale, with or without notice to Sub-Lessee, and apply or retain the net proceeds of such disposition, with Sub-Lessee remaining liable for any deficiency and with any excess being retained by Sub-Lessor; and/or (f) recover all accrued and unpaid amounts due on or before the date Sub-Lessor declared the Sub-Lease in default (including without limitation interest accruing at the maximum rate allowed by law from the date of the Event of Default to the date of payment in full), plus, as liquidated damages for the loss of Sub-Lessor’s bargain and not as a penalty, an amount equal to (i) the then-applicable Stipulated Loss Value of the Equipment as set forth on the Order Form or (ii) in the event the Stipulated Loss Value is not set forth on the Order Form, the sum of: (1) the present value of all future Basic Rental payments to be paid over the unexpired Term discounted at a rate equal to the discount rate of the Federal Reserve Bank of St. Louis as of the date of the Event of Default; (2) all costs and expenses incurred by Sub-Lessor in connection with any Event of Default and the exercise by Sub-Lessor of any of its rights and remedies as a result of any Event of Default (including any attorneys’ fees and costs of collection); (3) Sub-Lessor’s estimated residual value of the Equipment as of the expiration of the Sub-Lease; and (4) the amount of loss or diminution of any tax benefits Sub-Lessor would have been entitled to if the Sub-Lease had stayed in effect through the full Term and any indemnity owing from Sub-Lessee, if then determinable (the amounts described in clauses (f)(i) and (ii) of this Section 12 are defined herein as the “Stipulated Loss Value”); and/or (g) exercise all rights and remedies available under law. Sub-Lessee shall, upon written demand by Sub-Lessor, and at expense of Sub-Lessee, promptly return any or all Equipment in accordance with Section 10 of this Sub-Lease. Each of the Parties hereby acknowledges and agrees that the damages under clause (f)(i) or (f)(ii) of this Section 12 are reasonable liquidated damages in light of the anticipated harm to Sub-Lessor that might be caused by an Event of Default and the facts and circumstances existing as of the date of this Sub-Lease. The exercise of these Remedies by Sub-Lessor shall not constitute a termination of this Sub-Lease unless Sub-Lessor so notifies Sub-Lessee in writing. Sub-Lessee shall be liable to Sub-Lessor for all costs, fees, interest, and expenses (including, without limitation, reasonable attorneys’ fees) incurred by Sub-Lessor in enforcing any of its rights and Remedies set forth herein. Upon the occurrence of an Event of Default by which Sub-Lessee has failed to pay timely to Sub-Lessor any Basic Rental or other monetary amount(s) due hereunder, Sub-Lessee shall be deemed to have forfeited the full amount of any Security Deposit to Sub-Lessor. Sub-Lessee and Sub-Lessor agree that the forfeiture, application, and transfer of any Security Deposit, or any portion thereof, as permitted in this paragraph, shall be deemed an indefeasible transfer, and concurrent with such forfeiture and/or application, Sub-Lessee shall have no property interest—legal, equitable, or otherwise—in any Security Deposit, or any portion thereof. From and after the date on which an Event of Default occurs, Sub-Lessee shall pay interest to Sub-Lessor with respect to all amounts due hereunder until such amounts are received by Sub-Lessor in good funds at an interest rate that is the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law.
13. DISPOSITION OF EQUIPMENT UPON REPOSSESSION
In the event that Sub-Lessor repossesses the Equipment under Section 12 above, Sub-Lessor may: (a) lease the Equipment or any portion thereof, in such manner, for such time and upon such terms as Sub-Lessor may reasonably determine; or (b) return the Equipment to the Lessor. In the event that Sub-Lessor leases any such Equipment, any rentals received by Sub-Lessor for the remaining Term (the period ending on the date when the Term would have expired if an Event of Default had not occurred) for such Equipment shall be applied to the payment of (i) all costs and expenses (including reasonable attorneys’ fees) incurred by Sub-Lessor in retaking possession of, and removing, storing, repairing and leasing such Equipment, and (ii) the Basic Rentals for the remainder of the Term and all other sums then due and owing under this Sub-Lease, including, without limitation, the amounts described in Section 12 thereof. The balance of such rentals, if any, shall be applied first to reimburse Sub-Lessee for any sums previously paid by Sub-Lessee and any remaining amounts shall be retained by Sub-Lessor. All rentals received by Sub-Lessor for the period commencing after the expiration of the Term shall be retained by Sub-Lessor. Sub-Lessee shall remain liable to Sub-Lessor to the extent that the aggregate amount of the sums referred to in clauses (i) and (ii) above exceeds the aggregate rentals received by Sub-Lessor under such leases for the respective Term(s) applicable to the Equipment covered by such leases. In the event that Sub-Lessor returns the Equipment to Lessor and Lessor sells or otherwise disposes of (other than pursuant to a lease) any such Equipment, to the extent Sub-Lessor receives any proceeds thereof, such proceeds shall be applied to the payment of: (i) all costs and expenses (including reasonable attorneys’ fees) incurred by Sub-Lessor in retaking possession of, and removing, storing, repairing, refurbishing and selling or otherwise disposing of such Equipment, (ii) the Basic Rentals accrued under this Sub-Lease but unpaid up to the time of such sale or other disposition, and (iii) the Stipulated Loss Value of the Equipment and any and all other sums then owing to Sub-Lessor by Sub-Lessee hereunder. The balance of such proceeds, if any, shall be applied first to reimburse Sub-Lessee for any sums previously paid by Sub-Lessee and any remaining amounts shall be retained by Sub-Lessor. Sub-Lessee shall remain liable to Sub-Lessor to the extent that the aggregate amount of the sums referred to in clauses (i) through (iii) above shall exceed the aggregate proceeds received by Sub-Lessor in connection with the sale or disposition of the Equipment.
14. SUBLEASE; ASSIGNMENT; CHANGE OF CONTROL
a) Sub-Lessee may not sublease any Equipment or assign its rights hereunder, by Change of Control or otherwise.
b) Without the prior written consent of Sub-Lessor, neither Sub-Lessee, shall (i) enter into a merger or consolidation where Sub-Lessee, as the case may be, is not the surviving entity; (ii) sell, contribute, assign or otherwise transfer all or substantially all of its assets; or (iii) undergo a change in ownership of its capital stock/membership interests/partnership interests, issued and outstanding from time to time, where effective control of such interests is not retained by the present holders of such interests (each such event, a “Change of Control”). Sub-Lessee hereby agrees to provide Sub-Lessor with at least thirty (30) days’ prior written notice of any such Change of Control. In the event Sub-Lessee undergoes a Change of Control to which Sub-Lessor does not provide its written consent, in lieu of Sub-Lessor declaring an Event of Default as a result thereof, on or before the date of the Change of Control, Sub-Lessee may terminate this Sub-Lease by returning the Equipment to Sub-Lessor and paying to Sub-Lessor the sum of the then-applicable Stipulated Loss Value of all the Equipment, all accrued and unpaid Basic Rental, any unpaid Taxes and other amounts then due and owing hereunder and any costs, fees, interest, and expenses (including, without limitation, reasonable attorneys’ fees) incurred by Sub-Lessor in connection therewith.
15. MISCELLANEOUS
a) General. Time is of the essence with respect to all of Sub-Lessee’s obligations under this Sub-Lease. If more than one Sub-Lessee executes and delivers this Sub-Lease, then each such Sub-Lessee shall be jointly and severally liable for all payment and performance obligations of Sub-Lessee hereunder and thereunder. Sub-Lessor and Sub-Lessee acknowledge that there are no agreements or understandings, written, oral, or implied, between Sub-Lessor and Sub-Lessee with respect to the Equipment, other than as set forth herein, and that this Sub-Lease sets forth the entire agreement between Sub-Lessor and Sub-Lessee with respect thereto. For avoidance of doubt, the terms of this Sub-Lease supercede Sub-Lessor’s General Terms and Conditions. Any titles or captions contained herein are for convenience only, and shall not be deemed part of the context of this Sub-Lease. This Sub-Lease may not be altered, modified, terminated or discharged except by a written agreement executed by Sub-Lessor and Sub-Lessee. Any terms and conditions of any purchase order or other document submitted by Sub-Lessee in connection with this Sub-Lease which is not executed by Sub-Lessor and which are in addition to or inconsistent with the terms and conditions herein shall not be binding upon Sub-Lessor and shall not apply to this Sub-Lease. It is further agreed that this Sub-Lease supersedes all prior understandings, proposals and agreements relating to the Equipment.
b) Notice of Corporate Updates. In the event that Sub-Lessee: (i) modifies its name, (ii) converts to a different from of entity, or (iii) re-domesticates to a different state, then Sub-Lessee shall provide Sub-Lessor with written notice of such modification, conversion or re-domestication, as the case may be, no more than ten (10) days following the effectiveness thereof.
c) No Waiver. No omission or delay by Sub-Lessor at any time to enforce any right or remedy reserved to it, or to require performance of any of the terms, covenants, or provisions hereof by Sub-Lessee at any time designated, shall be a waiver of any such right or remedy to which Sub-Lessor is entitled, nor shall it in any way affect the right of Sub-Lessor to enforce such provisions thereafter.
d) Binding Nature. This Sub-Lease shall be binding upon, and shall inure to the benefit of, Sub-Lessor and its successors and assigns, and Sub-Lessee and its permitted successors and assigns.
e) Survival of Obligations. All agreements, representations, warranties and indemnities contained in this Sub-Lease, or in any document executed pursuant hereto or in connection herewith shall be for the benefit of Sub-Lessor and any assignee or Secured Party, or Sub-Lessee where approved by Sub-Lessor, and shall survive the expiration or other termination of this Sub-Lease.
f) Return of Security Deposit. At the end of the Term, the Sub-Lessee shall return the Equipment as provided in Section 10. If there has been no Event of Default under this Sub-Lease during the Term, Sub-Lessee has no outstanding obligations to Sub-Lessor at the end of the Term and Sub-Lessee has returned the Equipment in accordance with this Sub-Lease, Sub-Lessor shall return the Security Deposit to Sub-Lessee within twenty (20) business days.
g) Notices. Any notice, instruction, or consent by and between the Parties which should or may be given hereunder shall be in writing and shall be deemed received upon the earlier of: (i) receipt, or (ii) three (3) days after mailing if mailed postage prepaid by registered or certified mail to the address for such Party set forth herein or to such changed address as may be subsequently submitted by written notice of either Party.
h) Applicable Law. This Sub-Lease, and any documents executed in connection therewith shall be governed and construed in all respects by the laws of Delaware without regard to its conflicts of laws provisions.
i) Service of Process. Each Party agrees that service of any process, summons, notice or document by U.S. registered mail to such Party’s respective address set forth above shall be effective service of process for any action, suit or proceeding.
j) WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LAWSUIT OR OTHER JUDICIAL PROCEEDING ASSERTING ANY CAUSE OF ACTION OR CLAIM ARISING OUT OF OR RELATING TO THIS SUB-LEASE OR THE TRANSACTIONS OR DOCUMENTS CONTEMPLATED IN THIS SUB-LEASE. EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS SUB-LEASE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15(I), (III) REPRESENTS THAT IT HAS BEEN REPRESENTED BY COUNSEL AND ADVISED OF THE MEANING OF WAIVING ITS RIGHT TO A TRIAL BY JURY AND (IV) REPRESENTS THAT IT IS KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVING ITS RIGHT TO A TRIAL BY JURY.
k) Venue and Submission to Jurisdiction. The Parties agree that any legal action, suit, or proceeding arising out of or relating to this Sub-Lease, or the transactions contemplated hereby or thereby, may be instituted in the federal courts of the United States located in the City of Wilmington, Delaware, or in the courts of the State of Delaware located in New Castle County, Delaware (collectively, the “Proper Courts”), and each Party irrevocably submits to the exclusive jurisdiction of the Proper Courts in any such legal action, suit, or proceeding. To the extent permitted by law, the Parties further agree to waive and not assert as a defense in any such action, suit, or proceeding that: (i) any of the Proper Courts cannot exercise personal jurisdiction over a Party; (ii) any Party is immune from injunctive or other equitable relief; (iii) such action, suit, or proceeding may not be maintained in any of the Proper Courts; (iv) such action, suit, or proceeding brought in any of the Proper Courts has been brought in an improper venue and/or should be dismissed or transferred on the grounds of forum non conveniens; (v) such action, suit, or proceeding should be stayed due to the pendency of any other proceeding in any other court or tribunal; or (vi) this Sub-Lease may not be enforced in or by any of the Proper Courts.
l) Severability. In the event any one or more of the provisions of this Sub-Lease for any reason shall be or become invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction.
m) Further Assurances. Sub-Lessee, upon execution of this Sub-Lease, and at any time thereafter, shall provide to Sub-Lessor the original Sub-Lease or other document relating thereto and any other corporate documents and records and financial statements, including, without limitation, income statements, balance sheets, accounts receivable and other documentation as Sub-Lessor may reasonably request.
n) Right to Perform. If Sub-Lessee fails to perform any of its obligations under this Sub-Lease, Sub-Lessor shall have the right, but shall not be obligated, to effect such performance, and Sub-Lessee shall reimburse Sub-Lessor, upon demand, for all expenses incurred by Sub-Lessor in connection with such performance.
o) Counterparts and Execution. Photocopies or facsimile transmissions of signatures shall be deemed original signatures and shall be fully binding on the Parties to the same extent as original signatures. Delivery of an executed signature page counterpart of this Sub-Lease by telecopy, emailed .pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Sub-Lease. This Sub-Lease may be executed and delivered by any electronic or digital means (including without limitation .pdf) and the words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Sub-Lease shall be deemed to include electronic signatures, the electronic association of signatures and records on electronic platforms, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, provided that (i) nothing herein shall require Sub-Lessor to accept electronic signature counterparts in any form or format and (ii) Sub-Lessor reserves the right to require, at any time and at its sole discretion, the delivery of manually executed counterpart signature pages to this Sub-Lease, and Sub-Lessee agrees to deliver such manually executed counterpart signature pages within ten (10) days following Sub-Lessor’s request. The transfer or possession of the “Original” of this Sub-Lease shall be irrelevant to the full or collateral assignment of, or grant of security interest in, this Sub-Lease; provided, however, no security interest in this Sub-Lease may be created through the transfer, possession or control, as applicable, of any counterpart of this Sub-Lease other than the original thereof, which shall be identified as the document or record (as applicable) marked "Original" and all other counterparts shall be marked "Duplicate".
