Exhibit 10.60
No. __________
MASTER AGREEMENT TO LEASE EQUIPMENT
THIS MASTER AGREEMENT TO LEASE EQUIPMENT (this "Agreement") is entered into
as of February 19, 2001, by and between CISCO SYSTEMS CAPITAL CORPORATION
("Lessor"), having its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Drive,
Mailstop SJC2, 3rd Floor, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and VERADO, INC., a
Colorado corporation ("Lessee"), having its principal place of business at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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 Equipment Procurement. Lessee has ordered or shall order the
Equipment pursuant to one or more purchase orders or purchase contracts
(together, "Purchase Order") to or with Cisco Systems, Inc., or a Cisco-approved
reseller (together, "Vendor"), which Purchase Order shall be promptly delivered
to Lessor. Subject to Lessor's acceptance of such Equipment, as evidenced by
its preparation and delivery to Lessee for signature of a Schedule relating to
such Equipment, Lessee shall be deemed to have assigned to Lessor all Lessee's
right, title and interest in and to the Equipment and the Purchase Order;
provided that Lessor shall have no obligations under the Purchase Order. Lessee
shall execute and return to Lessor (a) each Schedule within ten days of Lessee's
receipt of same, and (b) each Certificate of Acceptance within ten days of
receipt and acceptance of the applicable Equipment. If for whatever reason the
lease transaction in respect of the Equipment is not consummated, (i) Lessee
shall remain solely liable to pay Vendor in accordance with the Purchase Order,
and (ii) upon receipt of satisfactory evidence of such payment by Lessee, Lessor
shall assign to Lessee, without warranty, its right, title and interest in and
to the Equipment and the Purchase Order.
1.3 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
1.
terminated by Lessor or Lessee, for any reason whatsoever, prior to the end of
the Original Term or any pending Extended Term.
1.4 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.
1.5 Return of Equipment. Upon expiration of the Lease Term, Lessee shall,
within 15 business days, return the Equipment to Lessor in the condition and at
the place provided in Section 3.3.
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.
2.
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.
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 material compliance with all laws, rules and regulations 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 body or agency 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
3.
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 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 a breach of this Agreement by
Lessor, the negligence, 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 Prohibitions Related to Lease and Equipment. 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
security interest, lien or
4.
encumbrance 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.
However, Lessee may assign the Equipment, Lease or Agreement to a wholly owned
subsidiary, or a majority owned subsidiary of Verado Holdings, Inc. (where
Verado Holdings, Inc. owns greater than fifty percent of the outstanding shares
or securities entitled to vote for election of directors or similar managing
authority) provided that, prior to such action, Lessor receives from Lessee (i)
a financial guaranty by Verado Holdings, Inc., of the subsidiary performance
which is satisfactory to Lessor, and (ii) a statement of the permanent Equipment
location. Such assignment shall not materially change the duties or obligations
of the Lessee hereunder.
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, (or in the
discretion of Lessee, unless such additions, attachments, alterations or
improvements have been provided by Lessor or Cisco Systems, Inc., and if not,
only if the value of the Equipment is not diminished) 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 use commercially reasonable efforts to 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. Lessee shall promptly furnish to Lessor such
publicly filed financial or other statements regarding the condition and
operations of Lessee and any guarantor of any Lease, and information regarding
the Equipment, as Lessor may from time to time reasonably request.
3.13 Lessee Representations. Lessee hereby represents that, 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"): (a) 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; (b)
the person executing such documents is duly authorized to do so; and (c) such
documents constitute legal, valid and binding obligations of Lessee, enforceable
in accordance with their terms.
5.
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 of any
Lease or any partner of a partnership Lessee or guarantor, or all or any part of
such person's property, under the Federal 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, defaults under any other instrument or agreement with
Lessor or Cisco Systems, Inc.
4.2 Remedies. If an Event of Default exists, and remains uncured for 25
days, 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, and incidental damages, including all accrued
(up to the point of default) 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 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.
6.
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, subject (where
applicable), to the cure period stated in Section 4.1 herein , 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. Lessor
and Lessee acknowledge 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 nor
materially change Lessor's duty or obligation under this Agreement or any Lease.
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 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
7.
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. WITH THE EXCEPTION OF A COMMON LAW CLAIM OF BREACH OF
CONTRACT, 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 charges, costs, expenses and attorney's fees incurred
by Lessor (a) in defending or protecting its interests in the Equipment, and (b)
in the enforcement of this Agreement or any Lease. The prevailing party in any
lawsuit or other legal proceeding between Lessor and Lessee, to which this
Agreement or any Lease gives rise, may recover all charges, costs, expenses and
attorney's fees incurred in connection therewith. Any nonpayment of Rent or
other amount payable under any Lease shall result 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. LESSOR AND LESSEE CONSENT TO THE
NON-EXCLUSIVE JURISDICTION OF THE
8.
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, 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, and (c) all books, records and proceeds relating to the foregoing.
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. Any lease Appendix executed by Lessor and Lessee making
reference to this Agreement is a part of and incorporated into this Agreement by
this reference.
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 AND LESSOR
REPRESENTS THAT HE OR SHE IS AUTHORIZED TO EXECUTE AND DELIVER THIS AGREEMENT ON
BEHALF OF THEIR RESPECTIVE PARTY.
LESSOR: LESSEE:
CISCO SYSTEMS CAPITAL VERADO, INC.
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- -----------------------------------------
(Authorized Signature) (Authorized Signature)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Accounting Manager ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer
----------------------------------- -----------------------------------------
(Name/Title) (Name/Title)
9.
[CISCO SYSTEMS CAPITAL LOGO]
Friday, June 15, 2001
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Verado, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇:
Cisco Systems Capital Corporation ("CSC"), a wholly owned subsidiary of Cisco
Systems, Inc. ("Cisco Systems"), specializes in providing innovative finance
solutions for Cisco Systems products and services. We are pleased to present
this proposal ("Proposal") for the transaction described below:
LESSOR: Cisco Systems Capital Corporation.
LESSEE: Verado, Inc.
GUARANTOR: Verado Holdings, Inc.
EQUIPMENT: Cisco Systems products, or other products satisfactory to
CSC, as presented in a quotation from the Cisco Systems
Sales Team or a Cisco Value Added Reseller, in form
satisfactory to CSC.
EQUIPMENT COST: In the aggregate, up to $20,400,000.00, including Soft
Costs.
SHIP TO: Locations within the U.S. as advised, and those locations
outside the U.S. as may be approved by CSC.
PARTIAL SHIPMENTS: Please indicate at the bottom of this letter whether Lessee
will accept scheduling of partial purchase order shipments.
(If not, please note that Cisco Systems will retain
shipments until complete.)
LEASE TERM: 24 months.
RENTAL FACTOR: The rental amount, expressed as a percentage of total
equipment cost (including Soft Costs, "Equipment Cost"), is
3.542% per month, payable on the 1st day of each, based on
a Lease Rate Factor of .03542. These numbers are premised
on the assumptions described below at "Soft Costs" and
"Adjustment of Rental Factor."
Confidential
Lease Proposal
Page 2 of 4
PERIODIC RENT
PAYMENT: In accordance with the pricing and configuration referenced
above, the rent payment for each Rental Period ("Rent") on
the lease would be the total Equipment Cost multiplied by
the Lease Rate Factor.
Maintenance: Maintenance Factor of .08807 for twelve months
of maintenance. For Maintenance equal to the term of the
lease see Maintenance Section below.*
Cisco Soft Cost and Software License Factor: .04671
Notwithstanding the foregoing, CSC is not responsible for
maintenance, software or ancillary services relating to the
equipment, nor for ensuring that any necessary maintenance
or services agreements or software licenses with Cisco
Systems or any other third party are in effect at any time.
MAINTENANCE: *When Cisco's Maintenance is purchased for a term equal to
the term of the lease at the time the equipment is
purchased, it may be included into the lease at 0%
financing over the term of the lease. Take the cost of the
maintenance and divide it by the term of the lease to
calculate the monthly payment.
ADVANCE PAYMENTS/
INTERIM RENT: None, but deemed acceptance of the equipment will take
place 30 days after shipment of the final piece of
equipment per schedule. There is no interim rent, ans
commencement of rental payments will occur on the 1st of
the month on or after acceptance or deemed acceptance.
NET LEASE: This is a net lease transaction under which all costs and
liabilities, including without limitation, for insurance,
maintenance and taxes, are paid by Lessee for the term of
the lease. Transferable manufacturer's guarantees or
warranties will be passed on to Lessee, assuming due
performance of Lessee obligations.
ADJUSTMENT OF
RENTAL FACTOR: The rental amount quoted in this Proposal will be adjusted
prior to the date of preparation of any Equipment Lease
Schedule to reflect changes equal to or greater than one
quarter of one percent (.25%) in the weekly average of the
Three Year Treasury Note interest rate, as specified in
Federal Reserve statistical release H.15 from the week
preceding the date of this Proposal to the week preceding
the date of preparation of the Schedule. Changes to the
benchmark rate of less than one quarter of one percent
(.25%) will not affect the Lease Rate Factor quoted herein.
The Three Year Treasury Note H.15 statistic is updated
weekly by the U.S. Federal Reserve for the preceding week's
average yield. The statistic is publicly available on the
Internet at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇.▇▇▇.▇▇/▇▇▇▇▇▇▇▇/▇▇▇/.
Confidential
Lease Proposal
Page 3 of 4
EQUIPMENT
PROCUREMENT: Purchase orders for equipment shall be placed by Lessee
with Cisco Systems, Inc., or a Cisco Value Added Reseller,
with all rights assigned to Lessor upon Lessor's election
to fund. All such purchase orders shall be subject to the
standard Terms and Conditions of Sale of Cisco Systems,
Inc. or such Cisco Value Added Reseller, including the "net
30" payment terms commencing from date of shipment. No
funding shall occur prior to execution by the parties of
CSC's standard Master Agreement to Lease Equipment ("Master
Lease Agreement"). If, for any reason, Lessor does not fund
any equipment or lease, or any contemplated lease is
otherwise not consummated, Lessee shall be solely
responsible for payment in full of the purchase price
(together with ancillary costs and expenses) associated
with any outstanding orders.
INVOICING: Monthly.
END OF LEASE
OPTIONS: At the end of the Original Term of the Lease, Lessee may
select one of the following options: (1) purchase the
equipment for the then Fair Market Value (to be defined in
the Lease documentation), or (2) subject to the consent of
Lessor, renew the lease of the equipment on a
month-to-month basis for the daily equivalent of the
original Rent, payable monthly in advance, or (3) return
the Equipment to the Lessor.
UTILIZATION PERIOD: All purchase orders for equipment under this Proposal shall
be submitted no later than September 30, 2001.
DOCUMENTATION FEE: None.
OTHER FEES: None.
EXPIRATION DATE: This Proposal shall terminate 30 days from today's date.
CONDITIONS OF
APPROVAL: CSC requires an Insurance Bond or Letter of Credit equal to
20% of the Amount Financed for the term of the lease. The
Insurance Bond or Letter of Credit must be in a form
satisfactory to CSC in its sole discretion. The provider of
the Insurance Bond or Letter of Credit must be approved by
CSC.
CREDIT APPROVAL: This Proposal includes only a brief description of the
substantive terms and conditions of the contemplated lease
transactions and is not intended as a formal commitment of
credit by CSC or Cisco Systems. Any funding by CSC for the
purchase of equipment is subject to the ongoing credit
approval of CSC (including the absence of any material
adverse change, in the
Confidential
Lease Proposal
Page 4 of 4
judgment of CSC, in the business or financial condition or
prospects of Lessee) and to satisfactory documentation
including as described below. Provided Verado's credit is
satisfactory pursuant to the terms of this Proposal, and
the required 20% insurance bond of Letter of Credit is in
place, for each order placed by Verado, funding by CSC (as
reviewed, and where approved by CSC, on an order by order
basis) will be provided. You agree to provide two years'
audited financial statements, bank references, a completed
credit application and any other required credit
information along with the signed copy of this Proposal.
You hereby authorize CSC and/or its agents to make a
complete credit investigation and to relate this
information to others as necessary to secure credit
approval.
The parties acknowledge that the financing contemplated by this Proposal is
subject to the above-referenced conditions and the execution and delivery of all
appropriate documents (in form and substance satisfactory to CSC), including
without limitation, to the extent applicable, the Master Lease Agreement, any
Schedule, certificate of acceptance, lease assignment of purchase order, UCC
financing statements, legal opinion and other documents and agreements
reasonably required by CSC.
This Proposal is confidential and may not be disclosed to any person or entity
without our consent. Lessee agrees that it shall not, without CSC's prior
written consent, disclose the existence or terms of any financing facility with
CSC or use the name or logo of CSC or Cisco Systems in any press release,
advertisement or other public pronouncement, nor represent to any person that
the relationship between Lessee and CSC or Cisco Systems is other than that of
seller and lessor of equipment and/or lender. Thank you for the opportunity to
present this Proposal. We look forward to doing business with you. If you have
any questions, please do not hesitate to call me at ▇▇▇-▇▇▇-▇▇▇▇.
Sincerely, ACKNOWLEDGED AND AGREED:
▇▇▇▇▇ ▇▇▇▇▇▇
US Service Provider Leasing Verado Holdings, Inc.
Account Manager
CISCO SYSTEMS CAPITAL CORPORATION
4 Venture, Suite 100 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ----------------------------------
Fax: ▇▇▇-▇▇▇-▇▇▇▇ (Authorized Signature)
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------ --------------------------------
Title: Chief Financial Officer
-------------------------------
Dated: 7/23/01
-------------------------------
Lessee is / is not [circle one] willing
to accept scheduling of partial
purchase order shipments. [Note:
Failure to circle either option shall
be deemed an instruction not to
schedule partial purchase order
shipments.]
Confidential
