Exhibit 10.8
EQUIPMENT SUBLEASE
AGREEMENT
THIS EQUIPMENT SUBLEASE AGREEMENT
(this “ Sublease Agreement ”) is made as of the
14 th day of September, 2005, by and
between FADV HOLDINGS LLC, a California limited liability company
(hereinafter referred to as “ Lessee ”), and
FIRST ADVANTAGE CORPORATION, a Delaware corporation (hereinafter
referred to as “ Sublessee ”).
GENERAL ELECTRIC CAPITAL
CORPORATION, FOR ITSELF AND AS AGENT FOR CERTAIN PARTICIPANTS
(hereinafter referred to as “ Lessor ”), by a
Master Lease Financing Agreement dated as of December 28, 2000
(hereinafter referred to as the “ Agreement ”),
leased to Lessee certain equipment described in the Schedules
executed or to be executed pursuant to said Agreement. Capitalized
terms used herein without definition shall have the meaning given
them in the Agreement.
Lessee and Sublessee desire to enter
into a sublease of a part of the equipment to Sublessee.
NOW, THEREFORE, in consideration of
the sum of Ten Dollars ($10.00) in hand paid, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and the mutual covenants, terms and conditions
hereinafter contained, the parties hereby agree as
follows:
1. Lessee hereby agrees to sublease
to Sublessee, and Sublessee hereby agrees to sublease from Lessee,
those certain items of equipment, personal property and other
property, together with all components, parts, additions,
accessions and attachments incorporated therein, now or hereafter
leased to Lessee pursuant to the Agreement and described on the
Schedules now or hereafter executed pursuant to the Agreement and
specified in a Specification of Equipment for Sublease (all such
property hereinafter collectively referred to as the “
Equipment ”), on the terms and conditions set forth in
the Agreement and in the Schedules executed pursuant to said
Agreement.
2. Sublessee agrees that it shall be
bound by each and every covenant, term and condition that are
applicable to Lessee contained in the Agreement and the applicable
Schedules, and that it shall perform promptly as and when due all
said covenants, terms and conditions. The term of this Sublease
Agreement and the rental to be paid hereunder shall be the Term of
the Agreement, and the Rent required to be paid under the
Agreement, with respect to the Equipment. Payments under this
Sublease Agreement shall be made to Lessee at the address specified
pursuant to Section 9 hereof. Upon expiration of the term of
this Sublease Agreement, the Equipment shall be returned to Lessee
(or, if directed by Lessee, to Lessor) in accordance with the
provisions of the Agreement.
3. Sublessee further agrees that:
(a) Sublessee waives, and agrees that it will not assert against
Lessor or any successor or assignee of Lessor, any defense,
set-off, recoupment, claim or counterclaim which Sublessee may at
any time have against Lessee for any reason whatsoever; (b) Lessor
shall have no obligation to perform any of the duties of Lessee
under this Sublease Agreement, including (but not limited to)
payment of any taxes or other sums,
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furnishing of maintenance, repairs,
replacements, service or insurance; (c) the Equipment, when
subjected to Sublessee’s use and control, will continue to be
personal property under applicable law at all times during the term
of this Sublease Agreement, and Lessor or its designated
employee(s) or agent(s) may inspect the Equipment at its location
during normal business hours; (d) the Equipment shall not be used
outside the Continental United States; and (e) Sublessee shall not
sell, assign or further sublease any of its rights in and to the
Equipment or under this Sublease Agreement.
4. Sublessee represents and warrants
that: (a) Sublessee is a corporation duly organized and validly
existing in good standing under the laws of the state of its
incorporation. (b) The execution, delivery and performance of this
Sublease Agreement: (1) have been duly authorized by all necessary
corporate action on the part of Sublessee; (2) do not require the
approval of any stockholders, trustee or holder of any obligations
of Sublessee except such as have been duly obtained; and (3) do not
and will not contravene any law, governmental rule, regulation or
order now binding or result in the creation of any lien or
encumbrance upon the property of Sublessee under any indenture,
mortgage, contract or other agreement to which Sublessee is a party
or by which it or its property is bound. (c) This Sublease
Agreement constitutes the legal, valid and binding obligation of
Sublessee enforceable against Sublessee in accordance with the
terms hereof. (d) There are no pending actions or proceedings to
which Sublessee is a party, and there are no other pending or
threatened actions or proceedings of which Sublessee has knowledge,
before any court, arbitrator or administrative agency, which,
either individually or in the aggregate, would materially adversely
affect the financial condition of Sublessee, or the ability of
Sublessee to perform its obligations hereunder. Further, Sublessee
is not in default under any obligation for the payment of borrowed
money, for the deferred purchase price of property or for the
payment of any rent which, either individually or in the aggregate,
would have the same such effect. (e) Sublessee is an equipment user
and not a broker or seller of equipment. Sublessee agrees that
Lessor may rely upon the truth and accuracy of all representations
and warranties made to Lessee by Sublessee in this Sublease
Agreement to the same extent and effect as if such representations
and warranties had been made directly to and for the benefit of
Lessor.
5. Upon the occurrence of any event
specified as a Default (as defined in the Agreement) by or with
respect to Sublessee under this Sublease Agreement (to effectuate
the foregoing, the provisions of Section 10 of the Lease are
incorporated herein by this reference, together with all related
definitions and ancillary provisions, mutatis mutandis, such that
references to Lessee in such provisions shall refer to the
Sublessee hereunder), Lessee shall have all rights and remedies
available to the Lessor in the Agreement (excluding, however, the
right to sell, lease or otherwise dispose of the
Equipment).
6. Lessee further agrees that
neither the sublease of the Equipment nor anything in this Sublease
Agreement shall relieve Lessee of its obligations to Lessor under
the Agreement and it shall remain primarily liable thereunder, and
Lessor shall not be required to (a) proceed against Sublessee; (b)
proceed against or exhaust any security held from Sublessee; or (c)
pursue any other remedy in Lessor’s power whatsoever before
proceeding against Lessee. Furthermore, Lessee acknowledges and
agrees that a separate action or actions may be brought and
prosecuted against Lessee whether an action is brought against
Sublessee or whether Sublessee be joined in any such action or
actions.
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7. (a) WITHOUT THE PRIOR WRITTEN
CONSENT OF LESSOR AND LESSEE, SUBLESSEE WILL NOT ASSIGN, TRANSFER
OR ENCUMB
