Exhibit 10.36
MASTER EQUIPMENT LEASE AGREEMENT
This Master Equipment Lease Agreement ("Master Lease") dated as of this 30th day
of October, 1995 by and between AT&T SYSTEMS LEASING CORPORATION, a Michigan
corporation (hereinafter called "Lessor"), having its principal office and place
of business at 0000 Xxxxxxxxx Xxxx, 0xx Xxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000,
and DELTACOM, INC., an Alabama corporation (hereinafter called "Lessee"), having
its principal office and place of business at 000 Xxxxx Xxxx Xxxxxx, Xxxx, XX
00000.
The terms and conditions of this Master Lease shall be as set forth in the
Master Equipment Lease Agreement No. GL-135 dated as of April 30, 1990 by and
between XL/Datacomp, Inc. and Brindlee Mountain Telephone Company as assigned to
Lessee (the "Existing Lease"), a copy of which is attached hereto and which
terms and conditions are incorporated herein by reference, except as expressly
amended in any Schedule (which incorporates by reference this Master Lease) and
as set forth below:
1. All references to XL/Datacomp, Inc. in the Existing Lease, shall be
deleted, and replaced in the Master Lease with "Lessor";
2. Section 16 of the Existing Lease shall be deleted in its entirety, and
shall be replaced with the following:
"16. Notice: Service of all notice under this Agreement shall be
sufficient if in writing and given personally or mailed to the party involved at
its respective address herein set forth, or any such other address as such party
may provide in writing from time to time. Any such notices mailed to such
address shall be effected when deposited in the United States mails, duly
addressed with postage prepaid. Until further notice, service of all notice to
Lessor shall be given at its general office: AT&T Systems Leasing Corporation,
0000 Xxxxxxxxx Xxxx, 0xx Xxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000."
3. In the last paragraph of Section 25 of the Existing Lease, the phrase
"THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF ILLINOIS (WITHOUT
REGARD TO THE CONFLICT OF LAWS)" shall be deleted, and replaced with the
following, "THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW
JERSEY (WITHOUT REGARD TO THE CONFLICT OF LAWS)."
Except as expressly modified herein, the terms and conditions of the Existing
Lease incorporated herein shall remain unmodified. The parties hereto agree
that any amendment or modification to the Existing Lease shall not affect this
Master Lease and further that any amendment to this Master Lease shall not
affect the Existing Lease, it being the express intention of the parties that
this Master Lease may not hereafter be amended or modified except by a writing
signed by AT&T Systems Leasing Corporation and Lessee.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Master Lease to be
executed as set forth below.
DELTACOM, INC. AT&T SYSTEMS LEASING CORPORATION
BY: /s/ XXXXXX X. XXXXXXXX /s/ XXXXXXXX X. XXXXXX
------------------------------ ------------------------------------
(Lessee Authorized Signature) (Lessor Authorized Signature)
Xxxxxx X. XxXxxxxx Xxxxxxxx X. Xxxxxx
---------------------------------- ------------------------------------
(Type/Print Name) (Type/Print Name)
President CONTRACT NEGOTIATOR/ANALYST
---------------------------------- -------------------------------------
(Title) (Title)
11/2/95 11/27/95
---------------------------------- -------------------------------------
(Date) (Date)
[LOGO APPEARS HERE]
MASTER EQUIPMENT LEASE
Master Equipment Lease No. GL-135
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Brindlee Mountain Telephone Company 4-30-90
--------------------------------------- ------------------------------------
Name of Lessee Master Equipment Lease Date
000 Xxxxx Xxxx, Xxxx, XX 00000
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Address of Lessee
XL/DATACOMP. INC. ("XLDC") and the Lessee stated above ("Customer"), in
consideration of the mutual agreements set forth herein and in any schedule or
schedules hereto and the payment of rent as provided herein and therein, hereby
agree to the terms of this Master Equipment Lease and any schedule or schedules
hereto.
1. EQUIPMENT LEASED:This contract is a Master Equipment Lease and the terms of
each Schedule of Machines ("Schedule") hereto are subject to any and all
conditions and provisions set forth herein as may from time to time be amended.
Each Schedule shall incorporate therein all of the terms and conditions of this
Master Equipment Lease and shall contain such additional terms and conditions as
XLDC and Customer shall agree upon. Each Schedule is enforceable according to
the terms and conditions contained therein. In the event of a conflict between
the language of this Master Equipment Lease and any Schedule hereto, the terms
of the Schedule shall prevail with respect to that Schedule. This Master
Equipment Lease and all Schedules hereto are collectively referred to as the
"Agreement."
XLDC agrees to lease to Customer, and Customer agrees to lease from XLDC, in
accordance with the terms and conditions herein, the equipment and features,
together with all replacements, parts, repairs, additions, attachments and
accessories incorporated therein (collectively called the "Machines") described
in each executed Schedule which shall be made a part hereof. Lessee shall have
no right, title or interest in the Machines, except as expressly set forth in
this Agreement. XLDC shall have no obligation hereunder until the execution and
delivery of a Schedule by XLDC and Customer.
2. TERM AND RENT: The term of this Agreement shall commence on the date set
forth above and shall continue thereafter so long as any Schedule entered into
pursuant to this Agreement remains in effect.
The initial Term and the rent payable with respect to each Machine shall be as
set forth in the Schedule relating thereto. The term of any lease of Machines
hereunder shall commence on the Commencement Date specified in the Schedule
relating to such Machines and shall continue in force until terminated by XLDC
or Customer upon not less than one hundred twenty (120) days' written
notice; provided, however, that no such lease shall be so terminated prior to
the expiration of the Initial Term specified in such Schedule.
The monthly rental charge for Machines listed in each Schedule shall commence on
the Commencement Date, specified in such Schedule, and be due and payable in
advance on the first day of each month (except the first payment which shall be
a pro rata portion of the monthly rental charge calculated on thirty-day basis
and shall be due and payable when invoiced by XLDC).
Except as otherwise hereinafter expressly provided, the XLDC monthly rental
charges for all the Machines listed in each Schedule during the Initial Term
shall be the charges as set forth in the Schedule relating thereto.
After expiration of the Initial Term specified in a Schedule and so long
thereafter as this Agreement shall remain in force and effect, the monthly
rental charge for the Machines set forth in such Schedule shall be the aggregate
monthly rental charges for such Machines in effect with respect to the last
month of the Initial Term relating thereto.
3. LATE CHARGES: At its discretion, XLDC shall have the right to charge and
collect, and Customer agrees to pay late charges for rental and other amounts
due hereunder not paid when due or 10 days thereafter, said late charges to be
charged at the rate of 1 1/2% per month on the unpaid installment or the highest
amount permitted by applicable law, whichever is lower. These charges will be
billed in the following month and like the rental will be due the first day of
the month. No notice of default shall be required to be given to Customer as a
condition to Customer's becoming obligated to pay late charges.
4. PAYMENT OF TAXES: Customer covenants and agrees to pay when added to
Customer's monthly rental charges, and to reimburse and indemnify and hold XLDC
harmless from and against, all taxes, fees or other charges, however designated
or levied, on the Customer, on this Agreement, on the Machines or their use or
value for tax purposes, including (but not limited to) state and local privilege
or excise taxes based on gross revenue and any taxes or amounts in addition
thereto or in lieu thereof paid or payable by XLDC, except any taxes based upon
the net income of XLDC.
5. SECURITY INTEREST: At or prior to the Commencement Date of any lease of
Machines hereunder, and from time to time as XLDC shall request, Customer at its
own expense, will cause financing statements with respect to this Agreement to
be executed by a duly authorized representative of Customer and XLDC and filed
in the Office of the Secretary of State and County Recorder of the appropriate
jurisdiction as may be required to create a perfected security interest in the
Machines. The Customer will, at its expense, from time to time do and perform
any other act and will execute, deliver, file and record (and will re-file,
re-record, whenever required) any and all further instruments required by law or
reasonably requested by XLDC, its successors or assigns, for the protection of
the title of XLDC, its successors or assigns to the Machines, or for the purpose
of carrying out the intention of this Agreement.
6. LIENS: Customer will not directly or indirectly create, incur, assume or
suffer to exist any mortgage, security interest, pledge, charge, lien,
encumbrance or claim on or with respect to the Machines, title thereto or any
interest therein, except (a) the respective rights of XLDC and Customer as
herein provided, (b) liens or encumbrances which result from any action or
inaction of XLDC or from any claim against XLDC (other than any such liens or
encumbrances which arise from Customer's failure to perform any obligation of
Customer hereunder), (c) liens for taxes either not yet due or being contested
in the opinion of XLDC, in good faith and by appropriate proceedings and (d)
inchoate materialmen's, mechanic's, workmen's, repairmen's, employee's or other
like liens arising in the ordinary course of business and not delinquent.
Customer will immediately notify XLDC of, and Customer will immediately at its
own cost and expense take whatever action is necessary to duly discharge, any
such mortgage, security interest, pledge, charge, lien, encumbrance or claim not
excepted in (b), (c) and (d) above, when the same may arise at any time, until
the return of the Machines as provided hereunder.
7. MAINTENANCE: Customer at its sole expense shall maintain the Machines in good
operating order, repair, condition and apperance and protect the Machines from
deterioration, other than normal wear and tear. Customer at its sole expense
shall enter into, and maintain in force in accordance with the terms thereof, a
Maintenance Agreement covering the Machines with XLDC, the manufacturer of the
Machines, or such other party as shall be acceptable to XLDC (the "Maintenance
Vendor") (effective date to be the Commencement Date of this Agreement), and
Customer shall supply an executed copy thereof to XLDC and authorize the
Maintenance Vendor to notify XLDC in the event maintenance charges are not paid
by Customer when due. In such event, XLDC shall have the right, but not the
obligation, to pay all such charges and treat such amounts as additional rental
hereunder. If Customer has any Machines maintained by a party other than XLDC
or the manufacturer thereof, Customer hereby assumes and agrees to pay any costs
necessary to have the manufacturer recertify the Machines at the scheduled
expiration of the term, which term shall continue upon the same terms and
conditions until such recertification has been obtained. Customer will cause the
Maintenance Vendor to keep the Machines in good working order in accordance with
the provisions of said Maintenance Agreement. All maintenance and service
charges, whether under said Maintenance Agreement or otherwise, and in addition
the expenses, if any, of the Maintenance Vendor's customer engineers charged by
such Vendor in connection with maintenance and repair services, shall be borne
by Customer.
Subject to United States security regulations, XLDC, or its designees, and
Customer's Maintenance Vendor shall have full and free access to the Machines.
8. USE: Customer shall provide safe storage and proper care for the Machines and
shall at all times use, operate and enjoy the same strictly in accordance with
all laws, ordinances and regulations from time to time in force. Cards, tapes,
other supplies, accessories and disk devices used to operate the Machines shall
meet applicable specifications of the respective Machine manufacturer(s).
9. ALTERATIONS AND ATTACHMENTS: Customer may, at its own expense and after prior
written notice to XLDC, make alterations in or attachments to the Machines,
provided that such alterations and attachments consist only of (i) any
accessory, equipment or device manufactured or sold by the manufacturer of the
Machines for installation on the Machines and installed in compliance with said
manufacturer's installation procedures, or (ii) any other accessory, equipment
or device installed on the Machines so long as such item does not interfere with
the normal operation of the Machines, increase the cost of maintenance of the
Machines, or create a safety hazard, and is capable of being removed without
causing damage to the Machines. All such alterations and attachments, unless
XLDC shall otherwise direct in writing, shall be removed by Customer and the
Machines restored to their original condition, reasonable wear and tear
excepted, upon termination of this Agreement. Any unremoved alterations and
attachments and replacements made to or placed in or upon the Machines, shall
become a component part thereof and title therein shall immediately vest in XLDC
and shall be included under the terms and provisions of this Agreement.
Customer shall not, without the prior written consent of XLDC and subject to
such conditions as XLDC may impose for its protection, affix the Machines to any
real property if, as a result thereof, the Machines will become a fixture under
applicable law. Notwithstanding the above provisions, the manufacturer of the
Machines may incorporate engineering changes or make temporary alterations to
the Machines without the consent of XLDC.
10. RISK OF LOSS: All risk of loss, theft, destruction and damage to the
Machines, from whatever cause, are assumed by Customer. Should the Machines be
damaged, Customer shall repair the Machines and after making such repair
Customer shall be entitled to reimbursement by XLDC to the extent of insurance
proceeds received by XLDC. Should the Machines be irreparably damaged, lost or
destroyed, Customer shall pay XLDC the value thereof, which shall be deemed to
be the Stipulated Loss Value as listed on the Schedules, and after making such
payment Customer shall be entitled to reimbursement by XLDC to the extent of
insurance proceeds received by XLDC.
Customer will maintain fire, with extended coverage, insurance for the term of
the Agreement on the Machines for the full value thereof, as specified above,
and will maintain public liability insurance with respect to the Machines with
minimum limits of liability per any one occurrence of not less than $250,000.
All such insurance shall name XLDC, its successors and assigns as additional
assureds or loss payees as their interest may appear, shall be with such
insurers as shall be satisfactory to XLDC and shall provide that the same may be
altered or cancelled only after ten (10) days prior written notice to such
assureds and loss payees. If any loss shall be paid to Customer and XLDC
Customer will not unreasonably withhold endorsement.
11. INDEMNITY: Customer agrees that it shall at all times defend, indemnify, and
hold XLDC, its successors and assigns, harmless from and against any and all
claims, costs, expenses, damages and liabilities (including, but not limited to,
liability for death, bodily injury and property damage), including reasonable
attorneys' fees, resulting from or pertaining to the purchase, ownership,
rental, use, operation or return of the Machines or upon the expiration of the
initial or any extended term of this Agreement.
12. DISCLAIMER OF LIABILITY: CUSTOMER AGREES THAT XLDC SHALL NOT BE LIABLE TO
CUSTOMER FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE OF ANY KIND CAUSED, DIRECTLY OR
INDIRECTLY, BY THE INADEQUACY OF ANY MACHINE FOR ANY PURPOSE OR ANY DEFICIENCY
OR DEFECT THEREIN OR ANY DELAY IN PROVIDING OR FAILURE TO PROVIDE ANY THEREOF,
OR ANY INTERRUPTION OR LOSS OF SERVICE OR USE THEREOF, OR ANY LOSS OF BUSINESS
AND AGREES THAT IT WILL, IRRESPECTIVE OF ANY SUCH CLAIM, LOSS, DAMAGE OR
EXPENSE, CONTINUE TO PAY ALL MONTHLY RENTAL CHARGES IN THE AMOUNTS STATED HEREIN
WHICH MAY COME DUE DURING THE INITIAL TERM HEREOF AND THEREAFTER SO LONG AS THIS
AGREEMENT IS NOT TERMINATED IN ACCORDANCE WITH ITS TERMS. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD THAT XLDC MAKES NO
WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY,
FITNESS, CONDITION, QUALITY, CAPACITY OR DURABILITY OF THE MACHINES OR ANY PART
THEREOF, NOR SHALL XLDC BE DEEMED OBLIGATED TO PROVIDE REPLACEMENT FOR ANY OF
THE MACHINES WHICH MAY BE DESTROYED BY FIRE, THEFT, OR OTHER CASUALTY.
13. REPRESENTATIONS AND WARRANTIES OF CUSTOMER: Customer hereby represents and
warrants for the benefit of XLDC that:
(a) The execution, delivery and performance of this Agreement have been duly
authorized by all necessary action on the part of Customer.
(b) Each individual executing such on behalf of Customer was duly authorized to
do so.
(c) This Agreement constitutes a legal, valid and binding agreement of the
Customer enforceable in accordance with its terms.
(d) The Machines shall be deemed to be personal property even though attached to
a realty and will not become fixtures under applicable law.
14. SELLING TIME: The Customer shall have the unlimited right to sell time to
third parties so long as it shall retain uninterrupted possession and control
of the Machines.
15. MOVING MACHINES: Customer may move all the Machines, at its expense, upon
thirty (30) days' prior written notice to XLDC, its successors and assigns, to
any other location of Customer, or any location of any Division or Subsidiary of
Customer, within the continental United States (but in no event to any location
outside the Continental United States), provided, however, that the state of
such relocation shall have in effect the Uniform Commercial Code, and that all
costs (including, without limitation, additional property taxes or other taxes,
any additional expense of insurance coverage, and any expense associated with
the protection of the title and interest of XLDC, its successors and assigns to
and in the Machines) resulting from such movement shall be borne by Customer. In
the event of such movement, Customer and such Division or Subsidiary of
Customer, if any, shall cooperate with XLDC in taking all necessary, appropriate
and reasonable measures to protect the title of XLDC, and the interest of any
successor or assignee of XLDC, to and in the Machines.
16. NOTICE: Service of all notice under this Agreement shall be sufficient if in
writing and given personally or mailed to the party involved at is respective
address herein set forth, or any such other address as such party may provide in
writing from time to time. Any such notices mailed to such address shall be
effective when deposited in the United States mails, duly addressed with postage
prepaid. Until further notice, service of all notice to XLDC shall be given at
its general office, XL/DATACOMP, INC., 000 Xxxxx Xxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000.
17. TRANSPORTATION AND INSTALLATION: All transportation, rigging, traffic and
drayage charges upon delivery of the Machines to Customer's site and upon final
re-delivery of the Machines to a location designated by XLDC (including, without
limitation, the costs of in-transit insurance) are to be paid by Customer. All
costs involved in installation and de-installation by qualified labor are the
responsibility of the Customer.
18. RETURN OF MACHINES: Upon the expiration of the initial term or any extended
term of any lease of Machines under this Agreement, Customer shall return the
Machines so leased to XLDC, or any person designated by XLDC to Customer in
writing, by making the same available, appropriately crated for transport by
truck, at the loading dock of the building which shall be the location of the
Machines upon such expiration, at Customer's sole cost and expense.
19. LEASING ONLY: This Agreement is one of leasing only and Customer shall not
have or acquire any right, title or interest in or to any of the Machines except
the right to use and operate the same as herein provided. Labels or other
markings may be affixed and maintained on the Machines by XLDC indicating XLDC
as the owner thereof. Customer shall keep the Machines free from any marking or
labeling which might be interpreted as a claim of ownership thereof or other
interest therein.
* by Customer, its assigns, licensee or successors in interest
20. REIMBURSEMENT: All advances made by XLDC to discharge and pay any charges
or any liens or encumbrances on the Machines for which Customer is liable
hereunder shall be added to the unpaid balance of the monthly rental charge due
and to become due and collectible as rent hereunder and shall be repayable by
Customer to XLDC immediately, together with interest thereon at 1 1/2% per month
or the highest lawful rate, whichever is lower.
21. ASSIGNMENT: This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and (to the extent specified
in any assignment) assigns. Customer, however, shall not assign this Agreement
or sublet any Machines without first obtaining the written consent of XLDC,
which such consent shall not be unreasonably withheld, provided that in no event
will it be deemed unreasonable for XLDC to require as a condition to any such
consent that Customer not be relieved of liability hereunder. In the event of
any assignment or sublet by Customer, Customer, it assigns, or its sublessee, if
any, shall cooperate with XLDC in taking all reasonable measures to protect the
interest or title of XLDC, its successors and assigns, in or to the Machines.
Customer acknowledges and understands that XLDC anticipates either selling and
assigning its interest in the Machines, or granting a security interest in the
Machines to a lender in consideration of a loan to XLDC. Customer agrees that
with respect to the monthly rental charges and any other payments due and to
become due to XLDC under his Agreement, it shall not, as to any assignee of
XLDC's rights under this Agreement, assert against such assignee, any defense,
set-off or counterclaim (including recoupment against or any diminution of
amounts payable by Customer to such assignee) which it may have against XLDC.
XLDC covenants that Customer shall quietly possess the Machines under this
Agreement notwithstanding any such assignment by XLDC, subject to and in
accordance with the provisions of this Agreement so long as Customer is not in
default hereunder.
22. DEFAULT BY CUSTOMER: It shall be deemed a Default by Customer hereunder if
the Customer (a) defaults in the payment of any sum of money due hereunder
beyond the tenth (10th) day after the same shall become due hereunder; (b)
defaults in the performance of any other of its obligations under this Agreement
for a continuous period of thirty (30) days after receipt by Customer of written
notice thereof from XLDC, its successors or assigns; (c) performs any
affirmative act of insolvency, or files any petition or takes any other action
under any bankruptcy, reorganization, insolvency or moratorium law, or any other
law or laws for the relief of, or relating to, debtors; (d) is the subject of
filing of any involuntary petition under any bankruptcy statute which is not
dismissed within sixty (60) days thereafter, or the appointment of any receiver
or trustee to take possession of the properties of Customer, unless such
petition or appointment is set aside or withdrawn or ceases to be in effect
within sixty (60) days from the date of said filing or appointment; (e) has a
substantial part of its property or any part of the Machines subjected to any
levy, seizure, assignment or sale for or by any creditor or governmental agency;
or (f) defaults under any other agreement between Customer and XLDC, its
successors or assigns. In the event of any Default, XLDC, its successors or
assigns, may at its option: (i) terminate this Agreement; (ii) whether, or not
this Agreement is terminated, take immediate possession of any or all of the
Machines, wherever situated, and for such purpose, enter upon any premises
without liability for so doing; (iii) sell, dispose of, hold, use or lease any
Machines as XLDC in its sole discretion may decide, without any duty to account
to Customer, and Customer shall remain liable for the remaining unpaid rent for
the balance of the respective initial Term relating to such Machines and for
other charges payable by Customer in accordance with this Agreement; (iv)
declare immediately due and payable all rentals remaining unpaid for the balance
of the term of the lease in which event the same shall be accelerated and
immediately due and payable, and shall be deemed liquidated damages and not a
penalty; and (v) exercise any other right or remedy which may be available under
applicable law. The above remedies, to the extent permitted by law, shall be
deemed cumulative and may be exercised successively or concurrently.
23. ENFORCEMENT OF WARRANTY: Upon receipt of a written request from Customer,
XLDC hereby agrees, so long as this Agreement shall remain in force, to take all
reasonable action requested by Customer to enforce any manufacturer's warranty,
express or implied, issued on or applicable to each Machine, which is
enforceable by XLDC in its own name, and represents that it will take all
reasonable action to obtain for Customer all service furnished by a manufacturer
in connection therewith; provided, however, that XLDC shall not be obligated to
commence any suit or action or resort to litigation to enforce any such warranty
unless Customer shall pay all expense in connection therewith.
Similarily, if any such warranty shall be enforceable by Customer in its own
name, Customer hereby agrees, upon receipt of written request from XLDC, so long
as this Agreement shall remain in force, to take all reasonable action requested
by XLDC to enforce any such warranty.
24. FINANCIAL INFORMATION: During each year of the term of this Agreement, as
soon as practicable after the close of each fiscal year of Customer, Customer
will furnish to XLDC a copy of its annual audit report prepared by independent
certified accountants, or other accountants satisfactory to XLDC, unless the
equivalent of such report is available to XLDC upon request, without charge or
investment, in the form of Customer's annual report to shareholders, during each
such year at such time.
25. GENERAL: The terms and conditions of this Agreement supersede those of all
previous agreements between the parties with respect to the use of the Machines,
and such use hereafter is subject to the terms and conditions of this Agreement.
No modification or waiver of any of the terms and conditions of this Agreement
nor consent to any departure therefrom by Customer shall in any event be
effective unless the same shall be in writing signed by XLDC and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose given. Any provision hereof prohibited by, or unlawful or
unenforceable under, any applicable law of any jurisdiction shall be ineffective
without invalidating the remaining provisions of this Agreement; provided,
however, that where the provisions of any such applicable law may be waived,
they are hereby waived by Customer to the full extent permitted by law to the
end that this Agreement shall be deemed to be a valid and binding Agreement
enforceable in accordance with its terms.
If legal action is required to enforce the terms and conditions of the
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ALABAMA AND
CONSTITUTES THE ENTIRE AGREEMENT BETWEEN CUSTOMER AND XLDC WITH RESPECT TO THE
FURNISHING OF MACHINE USE HEREUNDER. PARTIES AGREE PROPER VENUE TO BE ALABAMA.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on behalf of each of them as of the date set forth at the beginning of
this Agreement.
Brindlee Mountain Telephone Company
-----------------------------------
Customer
By: [SIGNATURE ILLEGIBLE] By: /s/ Xxxxxx X. XxXxxxxx
----------------------------------- --------------------------------
Its duly authorized representative
Title: Vice President
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SCHEDULE NO. 001 DATED: OCTOBER 30, 1995
TO MASTER EQUIPMENT LEASE AGREEMENT DATED OCTOBER 30, 1995 (THE "MASTER LEASE").
LESSEE: DELTACOM, INC.
LOCATION OF MACHINES: 000 X. Xxxx Xx., Xxxx XX 00000
COMMENCEMENT DATE: Upon Acceptance
INITIAL TERM: 48 months after the first day of the month
following the Commencement Date
STIPULATED
SERIAL MONTHLY LOSS VALUE
QTY MFG TYPE MODEL DESCRIPTION NUMBER RENT AMOUNT
--- --- ---- ----- ----------- ------ ---- ------
SEE ATTACHED EXHIBIT A
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TOTALS: $25,618.00*
-------------
$36,284.00** $1,537,515.00
* Month 1
** Months 2 - 48
SOFTWARE: Lessor and Lessee acknowledge that the Machines listed on this
Schedule may include certain software ("Software") in which Lessor and Lessee
have no ownership or other proprietary rights. Where required by the Software
owner or manufacturer, Lessee shall enter into a license or other agreement for
the use of the Software. Any Software agreement shall be separate and distinct
from the Master Lease and any Schedule, and Lessor shall not have any rights or
obligations thereunder unless otherwise agreed. In the event the Rent on a
Schedule includes an amount attributable to the financing by Lessor of Lessee's
fee for the use of Software, Lessee agrees that such amounts shall be deemed
Rent hereunder.
SPECIAL TERMS: Until Schedule No. 001 and the Certificate of Acceptance are
executed by Lessee, the terms and conditions of Schedule I dated November 13,
1994 ("Terminating Schedule"), under Master Equipment Lease GL-135 dated April
30, 1990 between AT&T SYSTEMS LEASING CORPORATION (f/k/a/ XL/DATACOMP, INC.) and
Lessee shall apply. If the Schedule No. 001 and the Certificate of Acceptance
are executed by Lessee, the obligation to pay Rent under the Terminating
Schedule shall cease as of November 30, 1995. Upon full execution of this
Schedule No. 001 and the Certificate of Acceptance, provided no Default has
occurred, the Terminating Schedule shall terminate (the "Termination Date") and
Lessee shall have no further obligation or liability thereunder except for those
obligations and liabilities relating to Lessor's rights, privileges and
indemnities, to the extent that they are fairly attributable to events or
conditions occurring or existing on or prior to the full execution of this
Schedule No. 001 and Certificate of Acceptance which specifically survive the
termination of the Terminating Schedule. In the event the Commencement Date of
this Schedule is other than the Termination Date of the Schedule, Lessee may be
required to pay interim rent under this Schedule for the period from the
Termination Date until the Commencement Date. Lessee acknowledges and agrees
that the Rental Payment and the Stipulated Loss Value Amount include an amount
attributed to the financing of Lessee's obligations under the Terminating
Equipment Schedule.
MASTER LEASE: This schedule is entered into pursuant to the Master Lease
identified above, a copy of which each party herto has been provided. All of the
terms, conditions, representations and warranties of the Master Lease are hereby
incorporated by reference herein and made a part hereof as if they were
expressly set forth in this Schedule. This Schedule constitutes a separate lease
with respect to the Machines described herein. By their execution and delivery
of this Schedule, the parties hereby reaffirm as of the date hereof all of the
terms, conditions, representations and warranties of the Master Lease, except as
modified herein. In calculating the Stipulated Loss Value with regard to item 10
in the Master Lease, the Stipulated Loss Value shall be calculated with respect
to the loss ("Loss") pursuant to the document entitled, Stipulated Loss Values.
Discount rate: In calculating present value with regard to item 22 of the Master
Lease, the discount rate to be used will be the lesser of the Federal Reserve
discount window borrowing rate in effect at the Commencement Date or 7%.
DELTACOM, INC. AT&T SYSTEMS LEASING CORPORATION
By: /s/ Xxxxxx X. XxXxxxxx By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------ --------------------------------
Title: PRESIDENT Title: CONTRACT NEGOTIATOR/ANALYST
---------------------------- ----------------------------
Date: 11/02/95 Date:______________________________
-----------------------------
EXHIBIT A
DELTACOM, INC.
EQUIPMENT SCHEDULE NO. 001
QTY MOD./TYPE DESCRIPTION
--- --------- -----------
1 9406/320/2051 System Unit
2 9406/3133 64MB main Storage
1 9406/2644 34XX Attach.
1 9406/5061 Storage Expansion Tower
1 9406/5062 System Unit Expansion Tower
1 9406/5052 16 Disk Unit Stor. Exp.
1 9406/5143 Bulk 400 Watt Power Supply
1 9406/2612 EIA 232/V.24 1-Line
2 9406/6605 1.03GB Disk
28 9406/6607 4.19GB Disk
2 9406/6512 Disk Unit Controller
*1 9406/2621 Tape Attach
*1 9406/2626 Token Ring Attach.
*2 9406/6140 Workstation Controller
*2 9406/2623 6-Line Comm Controller
*4 9406/2609 EIA 232/v.24 2-Line
*1 9406/6501 Tape Controller
1 9348/002 Magnetic Tape Unit
1 3490/E01 34XX 1/2" Tape Subsystem
*1 0000/X00 XXX Tape Unit
*1 5853/001 Modem
*1 9331/001 Diskette Unit
*1 9309/002 Rack
*1 Inter 2201 Uni Switch 2X1
*Equipment to be retained by Customer from Schedule I
EQUIPMENT TO BE RETURNED TO IBM FROM SCHEDULE I:
1 9406/F60 System Unit
2 9406/3131 64MB Main Storage
1 9406/6155 EIA 232/V.24 1 Line Adapter
EQUIPMENT TO BE RETURNED TO LESSOR FROM SCHEDULE I:
1 9406/5042 System Unit Expansion
1 9406/2622 34XX Tape Attachment
2 9406/6501 DASD Controller Card
3 9638/240 5.9GB/16MB Cache RAID V DASD
10 9638/1220N 1.967GB Add'l Disk
3 9638/BH01 1.967GB Hot Spare
STIPULATED LOSS VALUES
Under the Master Equipment Lease Agreement dated as of October 30, 1995
between AT&T SYSTEMS LEASING CORPORATION (Lessor) and
DELTACOM, INC. (Lessee)
The Stipulated Loss Value of a Machine is equal to the Stipulated Loss
Value Amount of that Machine multiplied by its Stipulated Loss Value Percentage
which is determined by looking in the table below for the Stipulated Loss Value
Percentage opposite the monthly rental period in which the loss or Default
occurs.
Monthly Rental Stipulated Loss Monthly Rental Stipulated Loss
Period Value Percentage Period Value Percentage
------ ---------------- ------ ----------------
1 and Prior 110.20 31 79.60
2 109.18 32 78.58
3 108.16 33 77.56
4 107.14 34 76.54
5 106.12 35 75.52
6 105.10 36 74.50
7 104.02 37 73.48
8 103.06 38 72.46
9 102.04 39 71.44
10 101.02 40 70.42
11 100.00 41 69.40
12 98.98 42 68.38
13 97.96 43 67.36
14 96.94 44 66.34
15 95.92 45 65.32
16 94.90 46 64.30
17 93.88 47 63.28
18 92.86 48 62.26
19 91.84 49 61.24
20 90.82 50 60.22
21 89.80 51 59.20
22 88.78 52 58.18
23 87.76 53 57.16
24 86.74 54 56.14
25 85.72 55 55.12
26 84.70 56 54.10
27 83.68 57 53.08
28 82.66 58 52.06
29 81.64 59 51.04
30 80.62 60 50.02
