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EXHIBIT 10.3
MASTER AGREEMENT TO LEASE EQUIPMENT
THIS MASTER AGREEMENT TO LEASE EQUIPMENT (together with the Appendix
hereto, this "AGREEMENT") is entered into as of January 24, 2000 by and between
CISCO SYSTEMS CAPITAL CORPORATION ("LESSOR"), having its principal place of
business at 000 Xxxx Xxxxxx Drive, Mailstop SJC2, 0xx Xxxxx, Xxx Xxxx,
Xxxxxxxxxx 00000 and MSI HOLDINGS, INC., a Utah corporation ("LESSEE"), having
its principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000.
I. THE LEASE
1.1 LEASE OF EQUIPMENT. In accordance with the terms and conditions of this
Agreement, Lessor shall lease to Lessee, and Lessee shall lease from Lessor, the
personal property described in the lease schedule(s) (each, a "SCHEDULE") to be
entered into from time to time into which this Agreement is incorporated (each
Schedule, together with this Agreement, a "LEASE"), together with all
substitutions, replacements, repairs, parts and attachments, improvements and
accessions thereto (the "EQUIPMENT"). Capitalized terms not otherwise defined in
this Agreement have the meanings specified in the applicable Schedule. Each
Lease shall constitute a separate, distinct, and independent lease and
contractual obligation of Lessee. Except as expressly set forth in any Lease,
Lessor shall at all times retain the full legal title to the Equipment, it being
expressly agreed by both parties that each Lease is an agreement of lease only.
1.2 TERM OF LEASE. The Original Term of each Lease shall begin on the
Commencement Date as specified in the applicable Schedule and, subject to
Sections 3.5 and 4.2, shall terminate on the date specified in the applicable
Schedule. If so provided in the applicable Schedule, the Original Term for any
Lease may be succeeded by one or more Extended Terms. Subject to Sections 3.5
and 4.2 and any express provisions of the Schedule, no Lease may be terminated
by Lessor or Lessee, for any reason whatsoever, prior to the end of the Original
Term or any pending Extended Term.
1.3 RENTAL PAYMENTS. Lessee shall pay Lessor Rent for the Equipment in the
amounts and at the times specified in the applicable Schedule. All Rent and
other amounts payable by Lessee to Lessor hereunder shall be paid to Lessor at
the address specified above, or at such other place as Lessor may designate in
writing to Lessee from time to time.
1.4 RETURN OF EQUIPMENT. Upon expiration of the Lease Term, Lessee shall
immediately return the Equipment to Lessor in the condition and at the place
provided in Section 3.3.
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II. DISCLAIMERS AND WARRANTIES; INTELLECTUAL PROPERTY
2.1 DISCLAIMERS; WARRANTIES. Lessee represents and acknowledges that the
Equipment is of a size, design, capacity and manufacture selected by it, and
that it is satisfied that the Equipment is suitable for its purposes. LESSEE
LEASES THE EQUIPMENT AS IS, AND, NOT BEING THE MANUFACTURER OF THE EQUIPMENT,
THE MANUFACTURER'S AGENT OR THE SELLER'S AGENT, LESSOR MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS FOR ANY
PARTICULAR PURPOSE, DESIGN OR CONDITION OF THE EQUIPMENT. LESSOR SHALL NOT BE
RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE INSTALLATION, OPERATION OR
OTHER USE, OR DEINSTALLATION OF THE EQUIPMENT, INCLUDING ANY DIRECT, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS. Lessee shall look solely to the
manufacturer or the supplier of the Equipment for correction of any problems
that may arise with respect thereto, and all transferable manufacturer and
supplier warranty rights are, to the extent such rights have been transferred to
Lessor, hereby assigned without representation or warranty by Lessor to Lessee
for the Lease Term, which warranties Lessee is authorized to enforce if and when
there exists no Event of Default. Any such enforcement shall be at Lessee's sole
cost and expense.
2.2 INTELLECTUAL PROPERTY. Lessee acknowledges that neither this Agreement
nor any Lease conveys any explicit or implicit license for the use of software
or other intellectual property of Cisco Systems, Inc. or its affiliates relating
to the Equipment and that such license rights, to the extent they exist, are
contained in separate documentation entered into between Lessee and Cisco
Systems, Inc. or other persons. LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS
WHATSOEVER WITH RESPECT TO THE INTELLECTUAL PROPERTY RIGHTS, INCLUDING ANY
PATENT, COPYRIGHT AND TRADEMARK RIGHTS, OF ANY THIRD PARTY WITH RESPECT TO THE
EQUIPMENT, WHETHER RELATING TO INFRINGEMENT OR OTHERWISE. Lessor shall, when
reasonably requested in writing by Lessee, provided there exists no Event of
Default and an indemnity satisfactory to Lessor is delivered by Lessee, and at
Lessee's cost and expense, enforce rights of indemnification, if any, for
patent, copyright or other intellectual property infringement obtained from the
manufacturer under any agreement for purchase of the Equipment. If notified
promptly in writing of any action brought against Lessee based on a claim that
the Equipment infringes a United States patent, copyright or other intellectual
property right, Lessor shall promptly notify the manufacturer thereof for
purposes of exercising, for the benefit of Lessee, Lessor's rights with respect
to such claim under any such agreement.
III. LESSEE OBLIGATIONS
3.1 NET LEASE; PAYMENTS UNCONDITIONAL. EACH LEASE IS A NET LEASE, AND ALL
COSTS, EXPENSES AND LIABILITIES RELATING TO THE EQUIPMENT, INCLUDING IN RESPECT
OF TAXES, INSURANCE AND MAINTENANCE, SHALL BE BORNE SOLELY BY LESSEE. LESSEE'S
OBLIGATION TO PAY ALL RENT AND OTHER SUMS THEREUNDER, AND THE RIGHTS OF LESSOR
IN AND TO SUCH PAYMENTS, SHALL BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE
SUBJECT TO ANY ABATEMENT, REDUCTION, SETOFF, DEFENSE, COUNTERCLAIM,
INTERRUPTION, DEFERMENT OR RECOUPMENT, FOR ANY REASON WHATSOEVER.
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3.2 USE OF EQUIPMENT. Lessee shall use the Equipment solely in the conduct
of its business, in a manner and for the use contemplated by the manufacturer
thereof, and in compliance with all Requirements of Law of every Governmental
Authority having jurisdiction over the Equipment or Lessee and with the
provisions of all policies of insurance carried by Lessee pursuant to Section
3.6.
3.3 DELIVERY; INSTALLATION; RETURN; MAINTENANCE AND REPAIR; INSPECTION.
Lessee shall be solely responsible, at its own expense, for (a) the delivery of
the Equipment to Lessee, (b) the packing, rigging and delivery of the Equipment
back to Lessor, upon expiration or termination of the Lease Term, in good
repair, condition and working order, ordinary wear and tear excepted, at the
location(s) within the continental United States specified by Lessor, and (c)
the installation, de-installation, maintenance and repair of the Equipment.
During the Lease Term, Lessee shall ensure that the Equipment is covered by a
maintenance agreement, to the extent available, with the manufacturer of the
Equipment or other party reasonably acceptable to Lessor. Lessee shall, at its
expense, keep the Equipment in good repair, condition and working order,
ordinary wear and tear excepted, and at the expiration or termination of the
Lease Term with respect to any of the Equipment, have such Equipment inspected
and certified acceptable for maintenance service by the manufacturer. If any of
the Equipment, upon its return to Lessor, is not in good repair, condition and
working order, ordinary wear and tear excepted, and so inspected and certified,
Lessee shall be obligated to pay Lessor for the out-of-pocket expenses Lessor
incurs in bringing such Equipment up to such status, but not in excess of the
Casualty Value for such Equipment, promptly after its receipt of an invoice for
such expenses. Lessor shall be entitled to inspect the Equipment at reasonable
times.
3.4 TAXES. Lessee shall pay, and hereby indemnifies Lessor on a net,
after-tax basis, against, and shall hold it harmless from, all license fees,
assessments, and sales, use, property, excise and other taxes and charges, other
than those measured by Lessor's net income, now and hereafter imposed by any
Governmental Authority upon or with respect to any of the Equipment, or the
possession, ownership, use or operation thereof, or any Lease, or the
consummation of the transactions contemplated by any Lease. Notwithstanding the
foregoing, to the extent required of it by applicable law and in reliance upon
Lessee's disclosure of the location of such Equipment, Lessor shall file
personal property tax returns, and shall pay personal property taxes payable
with respect to the Equipment. Lessee shall pay to Lessor the amount of all such
personal property taxes within 15 days of its receipt of an invoice for such
taxes. For any Lease that is specified as an FMV Lease in the applicable
Schedule, Lessee acknowledges that it is the intent of Lessor, and a material
inducement to Lessor to enter into such Lease, to obtain all state and Federal
income tax benefits of ownership with respect to the Equipment under such Lease,
including entitlement to annual accelerated cost recovery deductions.
3.5 LOSS OF EQUIPMENT. Lessee assumes the risk that, and shall promptly
notify Lessor in writing if, any item of Equipment becomes lost, stolen,
damaged, destroyed or otherwise unfit or unavailable for use from any cause
whatsoever (an "EVENT OF LOSS") after it has been delivered to a common carrier
for shipment to Lessee. Unless the item is damaged and is reparable within a
reasonable period of time in the judgment of Lessor (in which event Lessee
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shall promptly cause such item to be repaired and restored to the condition and
value it had prior to such Event of Loss, at its own cost and expense), Lessee
shall pay to Lessor on the Rent payment date following Lessor's receipt of such
notice (or, if none, 30 days after such Event of Loss), an amount equal to the
Rent payment or payments due and payable with respect to such Equipment on or
prior to such date, plus a sum equal to the Casualty Value of such Equipment as
of such date. Upon making such payment, the Rent for such Equipment shall cease
to accrue, the term of the Lease as to such Equipment shall terminate and
(except in the case of loss, unrecovered theft or complete destruction) Lessor
shall be entitled to recover possession of such Equipment in accordance with the
provisions of Section 3.3 above. If Lessor has received the foregoing amount,
Lessee shall be entitled to the proceeds of any recovery in respect of such
Equipment from insurance or otherwise, provided that if the Equipment is subject
to an FMV Lease, Lessee shall be entitled to receive such proceeds only up to
the Casualty Value therefor, any excess amount to be paid to Lessor.
3.6 INSURANCE. Lessee shall obtain and maintain for the Lease Term at its
own expense, property damage and liability insurance and insurance against loss
or damage to the Equipment as a result of fire, explosion, theft, vandalism and
such other risks of loss as are normally maintained on equipment of the type
leased hereunder by companies carrying on the business in which Lessee is
engaged, in such amounts, in such form and with such insurers as shall be
satisfactory to Lessor. Each insurance policy shall name Lessee as insured and
Lessor and its assignees as additional insureds and loss payees thereof as their
interest may appear, and shall provide that it may not be cancelled or altered
without at least 30 days' prior written notice thereof being given to Lessor (or
10 days', in the event of non-payment of premium).
3.7 INDEMNITY. Except with respect to the gross negligence or willful
misconduct of Lessor, Lessee hereby indemnifies, protects, defends and holds
harmless Lessor from and against any and all claims, liabilities (including
negligence, tort and strict liability), demands, actions, suits, and
proceedings, losses, costs, expenses and damages, including reasonable
attorneys' fees and costs (collectively, "CLAIMS"), arising out of, connected
with, or resulting from any Lease or any of the Equipment, or any ancillary or
related software or other intangibles, whether arising before, during or after
the Lease Term (but not Claims relating to events occurring after Lessee has
returned the Equipment to Lessor in accordance with Section 3.3), including
Claims relating to the manufacture, selection, purchase, delivery, possession,
condition, use, operation, return or other disposition of the Equipment. Each of
the parties shall give the other prompt written notice of any Claim of which it
becomes aware.
3.8 LESSEE NEGATIVE COVENANTS. Without the prior written consent of Lessor,
which consent as it pertains to clauses (b) and (d) below shall not be
unreasonably withheld, Lessee shall not: (a) assign, transfer, or otherwise
dispose of any Equipment, the Lease or any rights or obligations thereunder; (b)
sublease any of the Equipment or permit the Equipment to be controlled by any
other person; (c) create or incur, or permit to exist, any Lien with respect to
any of the Equipment; (d) cause or permit any of the Equipment to be moved from
the location specified in the applicable Schedule; or (e) cause or permit any of
the Equipment to be moved outside the United States.
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3.9 IDENTIFICATION. Lessee shall place and maintain permanent markings
provided by Lessor on the Equipment evidencing ownership, security and other
interests therein, as specified from time to time by Lessor.
3.10 ALTERATIONS AND MODIFICATIONS. Lessee shall not make any additions,
attachments, alterations or improvements to the Equipment without the prior
written consent of Lessor, not to be unreasonably withheld. Any addition,
attachment, alteration or improvement to any item of Equipment shall belong to
and become the property of Lessor unless, at the request of Lessor, it is
removed prior to the return of such item of Equipment by Lessee. Lessee shall be
responsible for all costs relating to such removal and shall restore such item
of Equipment to the condition and value otherwise required hereunder.
3.11 PERSONAL PROPERTY. Lessee acknowledges and represents that the
Equipment shall be and remain personal property, notwithstanding the manner by
which it may be attached or affixed to realty, and Lessee shall do all acts and
enter into all agreements necessary to ensure that the Equipment remains
personal property. If requested by Lessor with respect to any item of Equipment,
Lessee shall obtain and deliver to Lessor equipment access agreements,
satisfactory to Lessor, from all persons claiming any interest in the real
property on which such item of Equipment is installed or located.
3.12 FINANCIAL STATEMENTS. Subject to the term of any Schedule, Lessee
shall promptly furnish to Lessor such financial or other statements regarding
the condition and operations of Lessee and any Guarantor, and information
regarding the Equipment, as Lessor may from time to time reasonably request.
3.13 LESSEE REPRESENTATIONS. Lessee hereby represents and warrants as of
the date hereof and of each Schedule entered into hereunder, as follows:
(a) With respect to this Agreement, and each Schedule, certificate
evidencing acceptance of equipment, assignment of purchase order, insurance
letter, proposal letter, UCC financing statement, or other document now or
hereafter executed by Lessee in connection with any Lease (collectively, "LEASE
DOCUMENTS"), (i) the execution, delivery and performance thereof by Lessee or
its attorney-in-fact have been duly authorized by all necessary corporate,
partnership or company action; (ii) the person executing such documents is duly
authorized to do so; and (iii) such documents constitute legal, valid and
binding obligations of Lessee, enforceable in accordance with their terms.
(b) There are no actions, suits or proceedings pending or, to the best
of Lessee's knowledge, threatened, against or affecting Lessee or any of its
Subsidiaries before any Governmental Authority or arbitrator which (i) purport
to affect or pertain to this Agreement or any Lease, or (ii) if determined
adversely to Lessee or any such Subsidiary, would result in a Material Adverse
Change.
(c) Lessee and its Subsidiaries possess all approvals, authorizations,
permits, franchises, licenses, patents, trademarks, trade names, service marks,
and copyrights, free from burdensome restrictions, that are reasonably necessary
for the ownership, maintenance and operation of their respective businesses and
the maintenance and operation of the Equipment,
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and neither Lessee nor any of its Subsidiaries is in material violation of any
right of others with respect to the foregoing.
(d) Lessee and its Subsidiaries have filed all federal and other
material tax returns and reports required to be filed and have paid all federal
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets and otherwise
due and payable, except those which are being or will be contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. Lessee has not received any notice of any proposed tax
assessment against Lessee or any of its Subsidiaries that would, if made, have a
Material Adverse Effect.
(e) There exists no Default or Event of Default hereunder.
IV. DEFAULT AND REMEDIES
4.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "EVENT OF DEFAULT" hereunder and under each Lease: (a) Lessee
fails to pay any Rent or other amount due under any Lease within five days after
it becomes due and payable; (b) any representation or warranty of Lessee made in
any Lease Document proves to have been false or misleading in any material
respect as of the date when it was made; (c) Lessee fails to maintain insurance
as required herein or breaches any of clauses (a), (b) or (e) of Section 3.8;
(d) Lessee fails to perform any other covenant, condition or agreement made by
it under any Lease, and such failure continues for 20 days; (e) bankruptcy,
receivership, insolvency, reorganization, dissolution, liquidation or other
similar proceedings are instituted by or against Lessee, any Guarantor or any
partner of a partnership Lessee or Guarantor, or all or any part of such
person's property, under the Bankruptcy Code or other law of the United States
or of any other competent jurisdiction, and, if such proceeding is brought
against such person, it consents thereto or fails to cause the same to be
discharged within 45 days after it is filed; (f) Lessee materially defaults
under any agreement with respect to the purchase or installation of any of the
Equipment; or (g) Lessee or any guarantor of any Lease, or any of their
respective Subsidiaries or other Affiliates, defaults under any other instrument
or agreement with Lessor or Cisco Systems, Inc.
4.2 REMEDIES. If an Event of Default exists, Lessor may exercise any one or
more of the following remedies, in addition to those arising under applicable
law: (a) proceed, by appropriate court action, to enforce performance by Lessee
of the applicable covenants of any or all of the Leases; (b) terminate any or
all Leases by notice to Lessee and take possession of any or all of the
Equipment and, for such purpose, enter upon any premises where the Equipment is
located with or without notice or process of law and free from all claims by
Lessee or any other person, or require Lessee to assemble the Equipment and
deliver it to Lessor in accordance with Section 3.3; (c) recover any and all
direct, incidental and consequential damages, including all accrued and unpaid
Rent and other amounts owing under any Lease, and (i) for any Lease that is an
FMV Lease, the Equipment for which has not been returned to Lessor in the
condition required hereunder, an amount equal to the Casualty Value thereof; or
(ii) for any Lease that is an FMV Lease, the Equipment for which has been so
returned to Lessor, such amounts as are
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provided for the lessee breach of a personal property lease under the Uniform
Commercial Code of the jurisdiction specified in Section 5.11 (the "CODE"),
using the Discount Rate to calculate present values for such purpose; or (iii)
for any Lease that is not an FMV Lease, an amount equal to the present value,
discounted at the Discount Rate, of the sum of all Rent and other payments
remaining to be paid under such Lease through the Lease Term plus the applicable
purchase option amount specified in Paragraph 7 of the Schedule; and (d) sell or
re-lease any or all of the Equipment, through public or private sale or lease
transactions, and apply the proceeds thereof to Lessee's obligations under such
Leases or otherwise seek recovery in accordance with applicable provisions of
the Code. Lessee shall remain liable for any resulting deficiency and Lessor may
retain any surplus it may realize in connection with an FMV Lease. The "DISCOUNT
RATE" shall be the rate for U.S. Treasury obligations having a constant maturity
of three months, as specified in the Federal Reserve Statistical Release H.15
(or replacement publication) issued most recently prior to the date of
termination of the Lease. Lessee shall pay all costs and expenses (including
reasonable attorneys' fees) incurred by Lessor in retaking possession of, and
removing, storing, repairing, refurbishing and selling or leasing such Equipment
and enforcing any obligations of Lessee pursuant to any Lease.
V. MISCELLANEOUS
5.1 PERFORMANCE OF LESSEE'S OBLIGATIONS. Upon Lessee's failure to pay any
amount or perform any obligation under any Lease when due, Lessor shall have the
right, but shall not be obligated, to pay such sum or perform such obligation,
whereupon such sum or cost of such performance shall immediately become due and
payable thereunder, with interest thereon at the Default Rate from the date such
payment or performance was made.
5.2 RIGHT TO USE. So long as no Event of Default exists, neither Lessor nor
its assignee shall interfere with Lessee's right to use the Equipment under any
Lease.
5.3 ASSIGNMENT BY LESSOR. Lessor may assign or transfer any or all of
Lessor's interest in this Agreement, any Lease, any Equipment or Rents, without
notice to Lessee. Any assignee of Lessor shall have all of the rights, but none
of the obligations (unless otherwise provided in the applicable assignment), of
a "Lessor" under this Agreement and the applicable Lease, and Lessee agrees that
it will not assert against any assignee any defense, counterclaim or offset that
Lessee may have against Lessor or any preceding assignee, and that upon notice
of such assignment or transfer, it will pay all Rent and other sums due under
this Agreement and the applicable Lease to such assignee or transferee. Lessee
acknowledges that any assignment or transfer by Lessor shall not materially
change Lessee's duties or obligations under this Agreement or any Lease, nor
materially increase the burdens or risks imposed on Lessee.
5.4 FURTHER ASSURANCES. Upon the request of Lessor from time to time,
Lessee shall execute and deliver such further documents and do such further acts
as Lessor may reasonably request in order fully to effect the purposes of this
Agreement or any Lease. Lessee hereby appoints Lessor its attorney in fact,
coupled with an interest, authorized, without any obligation to do so, (a) to
sign on Lessee's behalf and file, record and register financing statements, and
amendments and continuations thereof, and any other documents relating to liens,
security interests or property rights of Lessor, Lessee or any third person with
respect to any Equipment and ancillary property, in accordance with any Uniform
Commercial Code or other code or
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statute, and (b) to enforce, in its own name or in the name of Lessee, claims
relating to any Equipment against insurers, manufacturers or other persons, and
to make, adjust, settle, compromise and receive payments as to such claims.
5.5 RIGHTS AND REMEDIES. Each right and remedy granted to Lessor under any
Lease shall be cumulative and in addition to any other right or remedy existing
in equity, at law, by virtue of statute or otherwise, and may be exercised by
Lessor from time to time concurrently or independently and as often and in such
order as Lessor may elect. Any failure or delay on the part of Lessor in
exercising any such right or remedy shall not operate as a waiver thereof.
5.6 NOTICES. Any notice, request, demand, consent, approval or other
communication provided for or permitted in relation to any Lease shall be in
writing and shall be conclusively deemed to have been received by a party hereto
on the day it is delivered to such party at its address, or received by the
party at such facsimile number, as is set forth in such Lease (or at such other
addresses or fax numbers such party shall specify to the other party in
writing), or if sent by registered or certified mail, return receipt requested,
on the fifth day after the day on which it is mailed, postage prepaid, addressed
to such party.
5.7 SECTION HEADINGS; INTERPRETATION. Section headings are inserted for
convenience of reference only and shall not affect any construction or
interpretation of any Lease Document. In interpreting the provisions of any
Lease Document, (a) the term "including" is not limiting; (b) references to
"person" include individuals, corporations and other legal persons and entities;
(c) the singular of defined terms includes the plural and vice-versa; and (d)
section and paragraph references are to the document in which such reference
appears, unless the context otherwise requires.
5.8 ENTIRE LEASE. This Agreement, together with the other Lease Documents,
constitute the entire agreement between Lessor and Lessee with respect to the
lease of the Equipment. No waiver or amendment of, or any consent with respect
to, any provision of any Lease Document shall bind either party unless set forth
in a writing, specifying such waiver, consent, or amendment, signed by both
parties. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND NOT OTHERWISE
SPECIFICALLY GRANTED TO LESSEE IN ANY LEASE DOCUMENT, LESSEE HEREBY WAIVES ANY
AND ALL RIGHTS OR REMEDIES CONFERRED UPON A LESSEE UNDER THE CODE OR ANY OTHER
APPLICABLE LAW OR STATUTE, WITH RESPECT TO A DEFAULT BY LESSOR UNDER THIS
AGREEMENT OR ANY LEASE. Each FMV Lease is intended by the parties as a "finance
lease" under the Code.
5.9 SEVERABILITY. Should any provision of any Lease Document be or become
invalid, illegal, or unenforceable under applicable law, the other provisions of
such Lease Document shall not be affected and shall remain in full force and
effect.
5.10 ATTORNEYS' FEES; DEFAULT INTEREST; MAXIMUM RATES. Lessee shall
reimburse Lessor for all reasonable charges, costs, expenses and attorney's fees
incurred by Lessor (a) in defending or protecting its interests in the
Equipment, (b) in the enforcement of this Agreement or any Lease, and (c) in any
lawsuit or other legal proceeding to which this Agreement or any Lease gives
rise. Any nonpayment of Rent or other amount payable under any Lease shall
result
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in Lessee's obligation to promptly pay Lessor on such overdue payment, for the
period of time during which it is overdue (including during any grace period),
interest at a rate ("DEFAULT RATE") equal to fourteen percent (14%) per annum.
To the extent that any payment of interest (including any amount deemed imputed
interest for purposes of applicable law) under any Lease Document would
otherwise exceed provisions of any law limiting the highest rate of interest
that may be lawfully contracted for, charged or received by Lessor, such payment
amount shall be deemed reduced to such amount as is equal to or consistent with
the highest rate permitted by applicable law.
5.11 GOVERNING LAW AND JURISDICTION. THIS AGREEMENT AND THE OTHER LEASE
DOCUMENTS SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF
CALIFORNIA. LESSOR AND LESSEE WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY
LITIGATION ARISING FROM ANY LEASE DOCUMENT. LESSEE CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF THE STATE COURTS OF CALIFORNIA, AND THE FEDERAL COURTS SITTING
IN THE STATE OF CALIFORNIA, FOR THE RESOLUTION OF ANY DISPUTES UNDER ANY LEASE
DOCUMENT.
5.12 SURVIVAL. All obligations of Lessee to make payments to Lessor under
any Lease or to indemnify Lessor, including pursuant to Section 3.4 or 3.7
above, with respect to a Lease, and all rights of Lessor hereunder with respect
to a Lease, shall survive the termination of such Lease and the return of the
Equipment.
5.13 SECURITY. To secure the payment and performance by Lessee of all
obligations under each Lease, and in addition to any other security granted
under other agreements, Lessee hereby grants Lessor a security interest in
Lessee's right, title and interest, now existing and hereafter arising, in and
to, (a) all Equipment subject to such Lease, (b) all insurance, warranty, rental
and other claims and rights to payment and chattel paper arising out of such
Equipment, (c) all rights to Cisco Systems, Inc. software or software financed
by Lessor, in either case used or usable in connection with the Equipment, and
(d) all books, records and proceeds relating to the foregoing. Notwithstanding
the foregoing, the security interest granted herein shall not extend to any
software license to the extent that: (i) such software license is not assignable
or capable of being encumbered as a matter of law or under the terms of such
license, without the consent of the licensor thereof, and (ii) such consent has
not been obtained; provided, however, that upon the obtaining of such consent
the security interest shall extend thereto.
5.14 COUNTERPARTS; CHATTEL PAPER. Each Lease Document may be executed in
counterparts, and when so executed each counterpart shall be deemed to be an
original, and such counterparts together shall constitute one and the same
instrument. The original of each Schedule shall constitute chattel paper for
purposes of the Code. If there exist multiple originals of a Schedule, the one
marked "Lessor's Copy" or words of similar import, shall be the only chattel
paper.
5.15 APPENDIX. The Appendix is a part of and incorporated into this
Agreement by this reference.
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LESSEE, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, ACKNOWLEDGES
THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS
TERMS AND CONDITIONS. EACH PERSON SIGNING BELOW ON BEHALF OF LESSEE REPRESENTS
THAT HE OR SHE IS AUTHORIZED TO EXECUTE AND DELIVER THIS AGREEMENT ON BEHALF OF
LESSEE.
LESSOR: LESSEE:
CISCO SYSTEMS CAPITAL MSI HOLDINGS, INC.
CORPORATION
By:
By: -------------------------------
----------------------------------- (Authorized Signature)
(Authorized Signature)
----------------------------------
-------------------------------------- (Name/Title)
(Name/Title)
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APPENDIX
TO MASTER AGREEMENT TO LEASE EQUIPMENT NO._______
THIS APPENDIX TO MASTER AGREEMENT TO LEASE EQUIPMENT NO._______ dated January
24, 2000 (this "Appendix") is entered into by and between CISCO SYSTEMS CAPITAL
CORPORATION ("LESSOR"), and MSI Holdings, Inc. ("LESSEE") and supplements and
shall be deemed incorporated into that certain Master Agreement to Lease
Equipment between Lessor and Lessee dated as of January 24, 2000 (the
"AGREEMENT").
VI. CERTAIN Definitions. The following terms shall have the following
meanings:
"Bankruptcy Code" means Title 11 of the United States Code, entitled
"Bankruptcy".
"Default" means an Event of Default or an event or condition which
with notice or lapse of time or both would constitute an Event of
Default.
"GAAP" means generally accepted accounting principles as in effect
from time to time.
"Governmental Authority" means any national government, or any state,
province or other political subdivision thereof or therein, or any
governmental ministry, department, body, commission, board, bureau,
agency, central bank, court, tribunal or other instrumentality or
authority exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantor" means any person executing a Guaranty.
"Guaranty" means any guaranty, indemnity or other third-party support
agreement executed in favor of Lessor in connection with Lessee's
obligations under any lease Documents.
"Lien" means any mortgage, pledge, security interest, assignment,
deposit arrangement, charge or encumbrance, lien or other type of
preferential arrangement (other than a financing statement filed by a
lessor in respect of an operating lease not intended as security).
"Loan Documents" means the $2,000,000 Secured Promissory Note dated as
of January 24, 2000 by Lessee in favor of Lessor, any warrant issued
by Lessee in connection therewith, and all other contracts,
instruments, addenda and documents executed in connection therewith.
"Material Adverse Change" means (i) a material adverse change in the
business, operations or financial condition of Lessee and its
Subsidiaries taken as a whole or any Guarantor and its Subsidiaries
taken as a whole, or (ii) any event, matter, condition or circumstance
which (A) would materially impair the ability of Lessee, any Guarantor
or any other Person to perform or observe its obligations under or in
respect of the Lease
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Documents or any Guaranty, or (B) affects the legality, validity,
binding effect or enforceability of any of the Lease Documents or any
Guaranty.
"Requirement of Law" means, as to any person, any law, treaty, rule or
regulation or determination of an arbitrator or of a Governmental
Authority, in each case applicable to or binding upon the person or
any of its property or to which the person or any of its property is
subject.
"Subsidiary" means any corporation, association, partnership, joint
venture or other business entity of which more than 50% of the voting
stock or other equity interest is owned directly or indirectly by any
person or one or more of the other Subsidiaries of such person or a
combination thereof.
VII. FURTHER LESSEE COVENANTS. LESSEE AGREES AS FOLLOWS:
7.1 NEGATIVE COVENANTS. Lessee shall not:
(a) Engage in any material line of business substantially
different from those lines of business carried on by it on the date of this
Agreement;
(b) Permit any of its Subsidiaries to merge with or consolidate
into, or acquire all or substantially all of the assets of, any other
corporation or entity, or sell, transfer, lease or otherwise dispose of all or
substantially all of its assets, except that (A) any of Lessee's wholly owned
Subsidiaries may merge with, consolidate into or transfer all or substantially
all of its assets to another of Lessee's wholly owned Subsidiaries, or to
Lessee, and in connection therewith, such Subsidiary may be liquidated or
dissolved, and (B) Lessee or any of its Subsidiaries may sell or dispose of
assets in the ordinary course of business, provided such transaction could not
reasonably be expected to result in a Material Adverse Change;
(c) Declare or pay any dividends in respect of Lessee's capital
stock, or purchase, redeem, retire or otherwise acquire for value any of its
capital stock now or hereafter outstanding, return any capital to its
shareholders as such, or make any distribution of assets to its shareholders as
such, or permit any of its Subsidiaries to purchase, redeem, retire or otherwise
acquire for value any stock of Lessee, except that Lessee may (A) declare and
deliver dividends and distributions payable only in common stock of Lessee, and
(B) purchase, redeem, retire or otherwise acquire shares of its capital stock
with the proceeds received from a substantially concurrent issue of new shares
of its capital stock; or
(d) Create or incur any debt for borrowed money, or become
liable as a surety, guarantor, accommodation party or otherwise, for or upon the
obligation of any other person, corporation or other entity, except that Lessee
may (A) acquire goods, supplies and services on normal trade credit and (B)
endorse negotiable instruments received in the ordinary course of business as
presently conducted.
7.2 AFFIRMATIVE COVENANTS. Lessee shall, and shall cause each of its
Subsidiaries to:
(a) Maintain and preserve (A) its corporate existence, and (B)
all material copyrights, patents, trademarks, trade names and service marks and
other intellectual property
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rights, and all other material rights, qualifications, permits, licenses,
franchises and privileges, necessary or desirable in the ordinary course of
business and operations and the ownership of its properties, except as
prohibited by clause 2(a) hereof;
(b) Obtain and maintain all licenses, authorizations, consents,
filings, exemptions, registrations and other governmental approvals of any
Governmental Authority necessary or desirable (A) in connection with the
execution, delivery and performance of the Lease Documents and the Loan
Documents and the leasing of the Equipment and borrowing of money as
contemplated thereby, or (B) in the ordinary course of its business and
operations and the ownership of its properties, except, in the case of this
clause (B), to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Change;
(c) Comply in all material respects with all Requirements of
Law of any Governmental Authority having jurisdiction over it or its business,
except as may be contested in good faith, or as to which a bona fide dispute may
exist, or where non-compliance could not reasonably be expected to result in a
Material Adverse Change; and
(d) Deliver to Lessor, as soon as available, but in any event
within ninety (90) days after the end of each fiscal year of Lessee, and
forty-five (45) days after the end of each of the first three fiscal quarters of
Lessee, a consolidated balance sheet of Lessee and its Subsidiaries as at such
quarter or year-end date, and the related consolidated statements of income and
cash flows for such period, all in reasonable detail and, in the case of the
year-end financials, audited by an independent certified public accountant,
which statements shall be prepared in accordance with GAAP and, in the case of
the year-end financials, shall not be subject to any qualifications or
exceptions as to the scope of the audit, nor to any qualifications or exceptions
not reasonably acceptable to Lessor.
VIII. FURTHER EVENTS OF DEFAULT. THE FOLLOWING SHALL BE ADDITIONAL EVENTS OF
DEFAULT UNDER THE AGREEMENT:
8.1 Lessee or any Guarantor, or any of their respective Subsidiaries,
defaults under any obligation to repay borrowed money, or under any lease
obligation, with any other lender or lessor, and such default continues after
the expiration of any applicable grace period;
8.2 There occurs any Material Adverse Change; or,
8.3 There occurs any transaction as a result of which more than 25% of any
class of Lessee's or any Guarantor's outstanding common stock is held or
controlled, directly or indirectly, by a person, or affiliated group of persons,
whose ownership interests in such class of stock in the Lessee or Guarantor did
not exceed 5% as of the date of this Agreement.
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IN WITNESS WHEREOF, Lessor and Lessee have caused this Appendix to be duly
executed by their authorized representatives as of the date of the Agreement.
CISCO SYSTEMS CAPITAL MSI HOLDINGS, INC.,
CORPORATION, Lessee
Lessor
By:
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By: Title:
-------------------------------- -----------------------------
Title:
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14.
