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LESSOR SHALL HAVE NO LIABILITY TO LESSEE OR ANY THIRD PARTY FOR ANY
<br />SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF
<br />ANY SORT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL
<br />INJURY, LOSS OF PROFITS OR SAVINGS, LOSS OF USE, OR ANY OTHER
<br />DAMAGES, WHETHER BASED ON STRICT LIABILITY OR NEGLIGENCE, AND
<br />WHETHER RESULTING FROM USE OF THE SYSTEM OR BREACH OF THE LEASE
<br />OR OTHERWISE, EXCEPT FOR DIRECT, SPECIFIC DAMAGES FOR LESSOR'S
<br />BREACH OF A LEASE OR FOR PERSONAL INJURY OR,PROPERTY DAMAGE
<br />ONLY TO THE EXTENT CAUSED BY LESSOR'S GROSS NEGLIGENCE OR
<br />WILLFUL MISCONDUCT.
<br />11. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee represents,
<br />covenants and warrants to Lessor that: (a) Lessee is a public body corporate and politic,
<br />duly organized and validly existing, and has the power to execute, deliver and perform
<br />each Lease; (b) the person executing this Agreement and any Schedules and related
<br />documents on behalf of Lessee has been given authority to bind Lessee; (c) this
<br />Agreement and all related documents have been duly authorized and constitute valid,
<br />legal and binding obligations of Lessee, enforceable in accordance with their terms; (d)
<br />there are no actions or proceedings. pending or threatened against Lessee which, if
<br />adversely determined, will have a material adverse effect on the ability of Lessee to
<br />perform its obligations under a Lease; (e) Lessee qualifies as a state or a political
<br />subdivision of a state within the meaning of Section 103 of the Internal Revenue Code of
<br />1986, as amended ("Code"); (f) Lessee will not take any action which, or omit to take any
<br />action which, would adversely affect the exemption of the interest component of Rent
<br />payments from federal income taxation; (g) Lessee shall file Internal Revenue Form
<br />8038-G or Form 8038 -GC, as applicable; and (h) the' obligation of Lessee to pay. Rent
<br />shall constitute a current expense of Lessee and is not in contravention of any applicable
<br />limitation of indebtedness.
<br />12. INSURANCE: At its expense, Lessee shall keep each System insured against all
<br />risks of loss and damage for an amount equal to the installed replacement cost of the
<br />System, with Lessor named as a loss payee. Lessee shall also maintain comprehensive
<br />general liability insurance, with Lessor named as an additional insured. All insurance
<br />policies shall be with an insurer having a rating of B+ or better by A.M. Best Company,
<br />Inc., and be in such form, amount and deductibles as are satisfactory, to Lessor. Each
<br />such policy must state by endorsement that the insurer shall give Lessor not less than
<br />thirty (30) days prior written notice of any amendment, renewal or cancellation. Lessee
<br />shall, upon request, fumish to Lessor satisfactory evidence that such insurance coverage
<br />is in effect. Lessee may self insure with respect to the above coverages with Lessor's
<br />prior written consent.
<br />13. CASUALTY: If any System, in whole or in part, is lost, stolen, damaged or
<br />destroyed, or is taken in any condemnation or similar proceeding (an. "Event of Loss"),
<br />Lessee shall promptly notify Lessor. Lessee shall, at its option (a) immediately place the
<br />affected Equipment and Software in good condition and working order, (b) replace the
<br />affected item with like equipment or software'in good condition and transfer clear title or
<br />the sublicense thereto to Lessor, or (c) to the extent. permitted by law, pay to Lessor,
<br />within thirty (30) days of the Event of Loss, an amount equal to the Stipulated Loss Value
<br />("SLV") (as hereinafter defined) for such affected Equipment or Software plus any other
<br />unpaid amounts then due under the Lease. If an Event of Loss occurs as.to part of a
<br />System for which the SLV is paid, a prorate amount of Rent shall abate from the date the
<br />SLV payment is received by Lessor.; The SLV shall be an amount equal to, surn of (a) all
<br />future Rent payments from the last Rent Payment Date to the end of the Term with each
<br />such payment discounted to present value, at a simple interest rate equal to. the
<br />applicable Lease Rate or if such rate is not permitted by law, then at the lowest permitted
<br />rate; plus (b) as liquidated damages, and not as a penalty, to the extent permitted by law,
<br />one percent (1 %) of the Price of the System, as such Price may have been amended
<br />from time to time.
<br />14 INDEMNITY: To the maximum extent permitted by applicable law, Lessee shall
<br />indemnify Lessor against, and hold Lessor harmlessfrom, and covenants to defend
<br />Lessor against, any and all losses, claims, liens, encumbrances, suits; damages,,and
<br />liabilities (and all costs and expenses including, without limitation, reasonable attorneys'
<br />fees) related to the Lease including, without limitation, the selection; purchase, delivery,
<br />ownership, condition, use, operation of the System, or violation of the Software.
<br />sublicense, or arising by operation of law (excluding. the gross negligence or willful
<br />misconduct of Lessor). Lessee shall. assume full responsibility for, or at Lessors sole
<br />option, reimburse Lessor for the defense thereof. This Section :shall survive the
<br />termination of the Lease but not longer than the applicable statute of limitations.
<br />The Lease is entered into based upon the assumption that the interest portion of the
<br />Rent will not be includable in Lessors gross income for federal income tax purposes. If
<br />Lessee causes Lessors after-tax economic yield to be adversely affected,.to the extent
<br />permitted by law, Lessee shall pay Lessor, on demand, an amount which will-
<br />.cause
<br />Lessor to have the same economic return had such a loss not occurred. Thw tern
<br />"Lessor" shall include any affiliated group for filing consolidated returns.
<br />15. DEFAULT: Any of the following shall constitute an Event of.Default: (a) failure by
<br />Lessee to pay any Rent or other amounts payable under a Lease for a period of ten (10)
<br />days or more after Lessee's receipt of written notice thereof; (b) failure by Lessee to
<br />perform any other material term in any Lease or any other agreement of Lessee given in
<br />connection with the Lease, and such failure continues uncured for twenty (2b) daysafter
<br />Lessee's receipt of written notice thereof; (c) the inaccuracy of any material
<br />representation or warranty made by the Lessee in connection with any Lease which
<br />failure or inaccuracy shall continue for a period of thirty days or more; (d) Lessee's
<br />attempt to make a Transfer (as defined in Section 17 herein) without Lessors prior
<br />written consent; (e) Lessee dissolves or ceases to exist; (f) Lessee becomes insolvent,
<br />makes an assignment for the benefit of creditors, files a voluntary. petition or has an
<br />involuntary petition filed or action commenced against it under the United States
<br />Bankruptcy Code or any similar federal or state law; or (g) failure by Lessee to perform
<br />any of its obligations under any other Lease or agreement with Lessor.
<br />16 REMEDIES: If an Event of Default has occurred, Lessor shall have the right to
<br />exercise one or more of the following remedies: (a) terminate and/or declare an Event of
<br />Default under any Lease or other agreement with Lessee; (b) recover from Lessee all
<br />Rent and any and all amounts then due and unpaid; (c) to the extent permitted by
<br />applicable law, recover from Lessee all Rent and other amounts to become due, by
<br />acceleration or otherwise, such amounts described in subsection (c) being present
<br />valued using the lesser of the applicable Lease Rate or such lower rate as may be
<br />SLGMLPA 7/12/99
<br />permitted under applicable law, with the amounts set forth in subsections (b) and (c)
<br />above being the agreed upon damages ("Lessors Loss"); (d) charge Lessee interest on
<br />the Lessors Loss from the date of the Event of Default until paid at the rate of one and
<br />one-half (1-1/2%) percent per month, but in no event more than the maximum rate
<br />permitted by law; (e) demand the Lessee return any System to Lessor in the manner
<br />provided in Section 9 of the Schedule; and (f) take possession of any System wherever
<br />located, with or without demand or notice, or any court order or any process by law.
<br />Upon repossession or return ofe System, Lessor shall sell, lease or otherwise dispose of
<br />the System in a commercially reasonable manner, with or without notice and by public or
<br />private bid, and apply the net proceeds thereof, if any, toward Lessors Loss but only
<br />after deducting all expenses including, without limitation, reasonable attorneys' fees
<br />incurred in enforcement of any remedy. Lessee shall be liable for any deficiency if the
<br />net proceeds available after the permitted deductions are less than Lessors Loss. No
<br />right or remedy is exclusive of any.other provided herein or permitted by law or. equity.
<br />All rights and remedies shall be cumulative and may be enforced concurrently or
<br />Individually from time to time.
<br />17. ASSIGNMENT: Lessor may, without notice to or the consent of Lessee, sell', assign,
<br />grant a security interest in, or pledge its interest in all. or any portion of a System and/or a
<br />Lease and any amounts due or to become due hereunder to any party ("Assignee"). No
<br />such assignment shall be effective until Lessee shall have received a notice identifying
<br />the Assignee. Upon receiving notice from Lessor Lessee shall. pay all,Rent and other
<br />amounts due to Assignee free from any claim or counterclaim, defense .or other right
<br />which Lessee may have against Lessor. Pursuant to Section 149(a) of the Code, Lessee
<br />hereby appoints Lessor as "Agent" of.the Lessee to maintain a' record of any Assignee.
<br />Lessor shall be relieved of its future obligations under the Lease as a result of such
<br />assignment if Lessor assigns to Assignee its :interest in the'System and Assignee
<br />assumes Lessor's future obligations. WITHOUT LESSOR'S PRIOR WRITTEN
<br />CONSENT, LESSEE SHALL NOT ASSIGN, SUBLEASE,; TRANSFER, . PLEDGE,
<br />MORTGAGE OR OTHERWISE ENCUMBER ("TRANSFER") THE SYSTEM OR THE
<br />LEASE OR ANY OF ITS RIGHTS THEREIN OR PERMIT ANY LEVY, LIEN OR
<br />ENCUMBRANCE THEREON. .Any. attempted non -con sensual, Transfer by Lessee shall
<br />be void ab initio. No Transfer shall relieve Lessee of any of its obligations under the
<br />Lease.
<br />18. NOTICES: Notices, demands and other communications shall be in writing and shall
<br />be sent by hand delivery, certified mail (return receipt requested), or overnight courier
<br />service or facsimile transmission (effective upon transmission) with a copy sent by one of
<br />the foregoing methods, to Lessee at the address or facsimile number stated above and
<br />to Lessor at 501 Corporate Centre Dr., Suite 600, Franklin, Tennessee, 37067, Attention:
<br />Manager Operations, or facsimile no. (615) 77.1-6292. Notices. shall be effective, upon
<br />the earlier of actual receipt or four days after the mailing date. Either party may
<br />substitute another address by such written notice.
<br />19. GOVERNING LAW: EACH LEASE SHALL BE GOVERNED BY THE LAWS OF
<br />THE STATE IN WHICH THE LESSEE IS LOCATED.
<br />20. MISCELLANEOUS: (a) Any failure of Lessor to require strict performance by Lessee
<br />or any waiver by Lessor of any provision of the Lease shall not be construed as a
<br />consent to or waiver of any other breach of the same or of any other provision. (b) If
<br />there is more than one Lessee,. the obligations of each Lessee are joint and several. (c)
<br />Lessee agrees to execute and deliver, upon demand, any documents necessary, in
<br />Lessors reasonable discretion,; to. evidence the intent of the Lease, and/or to protect
<br />Lessors interest in the System: Lessee agrees.to.pay the costs of'filing and recording
<br />such documentation. (d) Lessee shall deliver to Lessor such additional financial
<br />information as Lessor may.reasonably request. (e) If any provision shall be held to.be
<br />invalid or unenforceable, the validity and enforceability of the remaining provisions shall
<br />not in any way be affected or impaired.. (f) In the event Lessee fails to pay or perforin
<br />any obligations under the Lease, Lessor may, at its option, pay or perform such
<br />obligation, and any payment made or expense' incurred by Lessor in connection
<br />therewith shall be due and payable by Lessee upon demand by Lessor with interest
<br />thereon accruing at the maximum rate permitted by law until paid. (g) Time is of the
<br />essence in each Lease and in each of the Lease provisions: (h) Lessee shall pay Lessor
<br />on demand all costs and expenses, including reasonable attorneys' and collection fees
<br />incurred' by Lessor in enforcing the terns and conditions of a Lease, or in protecting
<br />Lessors rights and interests in the Lease or the System. (i) No lease charge, late
<br />charge, fee or interest, as applicable, is intended to exceed the maximum amount
<br />permitted to be charged or collected by applicable law. If one or more of such charges
<br />exceed such maximum, then such charges will be reduced to, the legally permitted
<br />maximum charge and any excess charge will be used to reduce the Price of the System
<br />or refunded. (j) The Lease may, be executed by one or more of the parties on any
<br />number of separate counterparts .(which' may be originals or copies sent by facsimile
<br />transmission) each of which counterparts shall . be an original. (k) Each Lease
<br />constitutes the entire agreement between Lessor and Lessee with respect to the subject
<br />matter thereof and supersedes all previous writings, and understandings of any. nature
<br />whatsoever. No agent, employee, or representative of Lessor has any authority to bind
<br />Lessor to any representation or warranty concerning the System and,. unless such
<br />representation or warranty is, specifically included in the Lease, it shall not be
<br />enforceable by Lessee against Lessor.
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