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EXHIBIT 10.3
[CISCO SYSTEMS LOGO] Master Agreement No. 1050
MASTER AGREEMENT TO LEASE EQUIPMENT
THIS MASTER AGREEMENT TO LEASE EQUIPMENT (this "Agreement") is entered into as
of October 23, 1997 by and between CISCO SYSTEMS CAPITAL CORPORATION ("Lessor")
having its principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 and RISERCORP, INC., a Texas corporation ("Lessee"), having a
principal place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX
00000. In consideration of the covenants set forth herein, Lessor and Lessee
have agreed as follows:
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 units of personal property (individually, a "Unit," and,
collectively, the "Equipment") described in the lease schedule(s) (each,
a "Lease") to be entered into from time to time into which this
Agreement is incorporated. Each Lease shall constitute a separate,
distinct, and independent lease and contractual obligation of Lessee.
Lessor or its assignee 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. Each Lease shall be binding upon Lessor
and Lessee from the date of its acceptance and execution by Lessor at
its principal place of business.
1.2 TERM OF LEASE. The original term of each Unit shall commence on the date
specified in the applicable Lease and, subject to Sections 3.3 and 3.5
below, shall terminate on the date specified in such Lease (the
"Original Term"). Notwithstanding the foregoing, the Original Term for
each Unit shall automatically extend for successive 30-day periods after
its expiration unless either party gives the other party written notice,
at least 90 days prior to the expiration of the Original Term or the
then extended term, as the case may be, of its intent not to so extend
the applicable Lease. Except as specifically provided in this Section
1.2, no Lease may be terminated by Lessor or Lessee, for any reason
whatsoever, prior to the end of the Original Term or any extended term.
1.3 RENTAL PAYMENTS. Lessee shall pay Lessor rent ("Rent") for each Unit in
the amounts and at the times specified in the Lease. The Lease Term for
each Unit shall commence on the Acceptance Certificate Execution Date
and shall continue for the period specified in the Lease, [unless
otherwise extended pursuant to Section 3.0 below]. The Lease Term as to
any Unit may not be terminated by Lessee unless otherwise expressly
provided in the Lease. All rental 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 Original Term of a Unit,
Lessee shall immediately return such Unit to Lessor as provided in
Section 3.3 below. Except as provided in Section 1.2 above, should
Lessee not return any Unit at the end of its Original Term, Lessee shall
continue to pay Rent to Lessor with respect to such Unit in the sum and
on the due dates set out in the applicable Lease, as a month-to-month
lease, until such Unit is returned by Lessee. If Lessee fails to return
any of the Equipment upon demand therefor by Lessor, Lessee shall pay
Lessor, as the measure of Lessor's damages, the Casualty Value (as
defined in the applicable Lease) of such Equipment.
II. DISCLAIMERS AND WARRANTIES; INTELLECTUAL PROPERTY
2.1 DISCLAIMERS; WARRANTIES. Lessee represents and acknowledges that each
Unit is of a size, design, capacity and manufacture selected by it, and
that it is satisfied that each Unit is suitable for its purposes. LESSOR
SUPPLIES THE EQUIPMENT AS IS, AND, NOT BEING THE MANUFACTURER OF THE
EQUIPMENT, THE MANUFACTURER'S AGENT OR THE SELLER'S AGENT, MAKES NO
WARRANTY OR REPRESENTATION, EITHER 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, WITHOUT LIMITATION, ANY
DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS. Lessee
shall look solely to the manufacturer or the supplier of Equipment for
correction of any problems that may arise with respect thereto, and all
warranties made by the manufacturer or such supplier are, to the degree
possible, hereby assigned to Lessee for the term of the applicable
Lease. To the extent any such warranty requires performance of any kind
by the beneficiary of the warranty, Lessee shall perform in accordance
therewith.
2.2 INTELLECTUAL PROPERTY. Except as otherwise expressly provided in each
Lease, LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH
RESPECT TO THE INTELLECTUAL PROPERTY RIGHTS, INCLUDING, WITHOUT
LIMITATION, ANY PATENT, COPYRIGHT AND TRADEMARK RIGHTS, OF ANY THIRD
PARTY WITH RESPECT TO THE EQUIPMENT, WHETHER RELATING TO INFRINGEMENT OR
OTHERWISE. Lessor shall, at Lessee's cost and expense, exercise, when
requested by Lessee, 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
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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. COVENANTS OF LESSEE
3.1 PAYMENTS UNCONDITIONAL; TAX BENEFITS; ACCEPTANCE. EACH LEASE SHALL BE A
NET LEASE, AND 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. It is the intent of Lessor, and
an inducement to Lessor, to enter into each Lease, to claim all
available tax benefits of ownership with respect to the Equipment
subject thereto. Lessee acknowledges and represents that (a) no right,
title or interest in such Equipment has been or is intended to be passed
to Lessee, other than the right to maintain possession of and use of
such Equipment for the Original Term of such Lease, conditioned on
Lessee's performance of the terms and conditions of such Lease, (b)
Lessee has not taken and will not, at any time during the Original Term
of such Lease, take any action which could cause Lessor to lose any tax
benefits of ownership, and (c) the Casualty Value of each Unit (as
defined in the applicable Lease) includes an amount which provides for
Lessor's recovery of the loss of such tax benefits. Lessee's acceptance
of the Equipment subject to a Lease shall be conclusively and
irrevocably evidenced by Lessee executing a Acceptance Certificate with
respect to such Equipment, and, upon acceptance, such Lease shall be
noncancellable for its Original Term unless otherwise agreed to in
writing by Lessor. Any nonpayment of Rent or other amounts payable under
any Lease shall result in Lessee's obligation to promptly pay Lessor as
additional Rent on such overdue payment, for the period of time during
which it is overdue (without regard to any grace period), interest at a
rate equal to the lesser of (a) 14% per annum, or (b) the maximum rate
of interest permitted by law.
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 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 below; provided, however,
Lessee shall have the right to allow third parties, under Lessee's
supervision, to use the Equipment, so long as Lessee shall retain
uninterrupted possession and control of the Equipment. Lessee shall pay
all costs, expenses, fees and charges incurred in connection with the
use and operation of the Equipment.
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 of the
Original 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 term of the
applicable Lease, Lessee shall ensure that each Unit is covered by a
maintenance agreement, to the extent available, with the manufacturer of
such Unit or such 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
of the Original Term, or any renewal term, with respect to any of the
Equipment, have such Equipment inspected and certified acceptable for
maintenance service by the manufacturer. In the event any of the
Equipment, upon its return to Lessor, is not in good repair, condition
and working order, ordinary wear and tear excepted, 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 (as defined in the applicable Lease) for such Equipment,
promptly alter its receipt of an invoice for such expenses. Lessor shall
be entitled to inspect the Equipment at Lessee's location at reasonable
times.
3.4 TAXES. Lessee shall be obligated to pay, and hereby indemnifies Lessor
and its successors and assigns against, and holds each of them 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 or 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 in any Lease or this Agreement.
Notwithstanding the foregoing, Lessor shall file all required personal
property tax returns, and shall pay all personal property taxes payable,
with respect to the Equipment, Lessee shall pay to Lessor, as additional
rental, the amount of all such personal property taxes within 15 days of
its receipt of an invoice for such taxes.
3.5 LOSS OF EQUIPMENT. Lessee shall bear the entire risk of the Equipment
being lost, destroyed or otherwise rendered permanently 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. If an
Event of Loss shall occur with respect to any Unit, Lessee shall
promptly and fully notify Lessor thereof in writing. On the rental
payment date following Lessor's receipt of such notice, Lessee shall pay
to Lessor an amount equal to the rental payment or payments due and
payable with respect to such Unit on or prior to such date, plus a sum
equal to the Casualty Value of such Unit as of the date of such payment,
as set forth in such Lease. Upon the making of such payment by Lessee
regarding any Unit, the rental for such Unit shall cease to accrue, the
term of this Lease as to such Unit shall terminate and (except in the
case of loss, theft or complete destruction) Lessor shall be entitled to
recover possession of such Unit in accordance with the provisions of
Section 3.3 above. Provided that Lessor has received the Casualty Value
for any Unit, Lessee shall be entitled to the proceeds of any recovery
in respect of such Unit from insurance or otherwise.
3.6 INSURANCE. Lessee shall obtain and maintain for the entire term of each
Lease, at its own expense, property damage and liability insurance and
insurance against loss or damage to the Equipment subject to such Lease
including, without limitation, loss by fire (including so-called
extended coverage), theft and such other risks of loss as are normally
maintained
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on equipment of the type leased hereunder by company's 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 will name Lessee as insured and Lessor as an additional insured
and loss payee thereof as Lessor's interests may appear, and shall
provide that it may not be canceled or altered without at least 30 days
prior written notice thereof being given to Lessor or its successors and
assigns.
3.7 INDEMNITY. Except with respect to the gross negligence or willful
misconduct of Lessor, Lessee hereby indemnifies, protects, defends and
holds harmless Lessor and its successors and assigns, from and against
any and all claims, demands, actions, suits, and proceedings, losses
costs, expenses, damages and liabilities, including, without limitation,
reasonable attorneys' fees and costs (collectively, "Claims"), arising
out of, connected with, or resulting from this Agreement, any Lease or
any of the Equipment, including, without limitation, the manufacture,
selection, purchase, delivery, possession, condition, use, operation, or
return of the Equipment. Each of the parties shall give the other prompt
written notice of any Claim of which it becomes aware. The provisions of
this Section 3.7 shall survive the expiration or termination of this
Agreement or any Lease.
3.8 PROHIBITIONS RELATED TO EQUIPMENT. Without the prior written consent of
Lessor, which consent as it pertains to subsections (a) and (c) below
shall not be unreasonably withheld, Lessee shall not: (a) sublease any
of the Equipment (provided that Lessee may, without the prior written
consent of Lessor, permit any Affiliate (defined below) of Lessee to use
any of the Equipment in the ordinary course of its business); (b) create
or incur, or permit to exist, any lien or encumbrance with respect to
any of the Equipment, or any part thereof; (c) move any of the Equipment
from the location at which it is first installed; or (d) permit any of
the Equipment to be moved outside the continental limits of the United
States. For purposes of this Agreement, the term "Affiliate" shall mean
(i) any corporation which controls, is controlled by, or under common
control with Lessee, (ii) any corporation resulting from the merger or
consolidation of Lessee, or (iii) any entity which acquires all of the
assets of Lessee as a going concern. For purposes of this Section 3.8,
the term "control" shall mean the power to direct the management of the
relevant entity.
3.9 IDENTIFICATION. Lessee shall place and maintain permanent markings
provided by Lessor on each Unit evidencing ownership, security and other
interests therein, as specified from time to time by Lessor. Lessee
shall not place or permit to be placed on any Unit any other markings
that might indicate any other ownership or security interest in such
Unit. Any markings on any Unit not made at Lessor's request shall be
removed by Lessee, at Lessee's sole cost and expense, prior to the
return of such Unit in accordance with Section 3.3.
3.10 ALTERATIONS OR MODIFICATIONS. Lessee shall not make any additions,
attachments, alterations or improvements to the Equipment without the
prior written consent of Lessor. At any time during the Original Term of
a Lease, there may be added to such Lease additional Units of the same
type as are rented thereunder for a term equal to the remaining portion
of such Original Term and, subject to the terms and conditions hereof,
at the Rent applicable to such Units for such term at the time the order
for such Units is placed, provided that the order is in writing and
accepted by Lessor. Such acceptance shall be at the sole discretion of
Lessor. Each addition, attachment, alteration or improvement to any Unit
shall belong to and become the property of Lessor unless, at the request
of Lessor, it is removed prior to the return of such Unit by Lessee.
Lessee shall be responsible for all costs relating to such removal and
shall restore such Unit to its operating condition that existed at the
time it became subject to the applicable Lease.
3.11 EQUIPMENT TO BE PERSONAL PROPERTY. Lessee acknowledges and represents
that the Equipment shall be and remain personal property,
notwithstanding the manner in 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.
3.12 FINANCIAL STATEMENTS. Lessee shall promptly furnish to Lessor such
financial or other statements respecting the condition and operations of
Lessee, and information respecting 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 Lease: (a) the execution, delivery and
performance thereof by Lessee have been duly authorized by all necessary
corporate action; (b) the individual executing such document is duly
authorized to do so; and (c) such document constitutes legal, valid and
binding obligations of Lessee, enforceable in accordance with its terms.
IV. DEFAULT AND REMEDIES
4.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an Event of Default hereunder: (a) Lessee shall fail to pay
any rental or other payment due hereunder within five (5) days after its
receipt of notice of nonpayment; (b) any representation or warranty of
Lessee made in this Agreement, any Lease, or in any document furnished
pursuant to the provisions of this Agreement or otherwise, shall prove
to have been false or misleading in any material respect as of the date
when it was made; (c) Lessee shall fail to perform any covenant,
condition or agreement made by it under any Lease, and such failure
shall continue for twenty (20) days after its receipt of notice thereof;
(d) bankruptcy, receivership, insolvency, reorganization, dissolution,
liquidation or other similar proceedings shall be instituted by or
against Lessee or all or any part of its 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
Lessee, it shall consent thereto or shall fail to cause the same to be
discharged within thirty (30) days after it is filed; (e) Lessee shall
default under any agreement with respect to the purchase or installation
of any of the Equipment; or (f) Lessee or any guarantor of Lessee's
obligations under any Lease shall default under any other agreement with
Lessor or Cisco Systems, Inc.
4.2 REMEDIES. If an Event of Default hereunder shall occur and be
continuing, Lessor may exercise any one or more of the following
remedies: (a) terminate any or all of the Leases and Lessee's rights
thereunder; (b) proceed, by appropriate court action or actions, either
at law or in equity, to enforce performance by Lessee of the applicable
covenants of any or all of the Leases or to recover damages for the
breach thereof; (c) recover from Lessee an amount equal to the sum of
(i) all amounts due under any or all of the Leases on or before the
Lessor giving Lessee written notice that such Event of Default has
occurred and, if Lessor obtains a judgment against Lessee with respect
to such Event of Default, the entry of such
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judgment, whichever shall last occur, (ii) as liquidated damages for
loss of a bargain and not as a penalty, the present value of the balance
of all rentals and other sums payable thereunder and hereunder, without
any presentment, demand, protest or further notice (all of which are
hereby expressly waived by Lessee), discounted at a rate equal to the
rate for United States Treasury Bills, as the case may be, as shown in
the Wall Street Journal, with a maturity which is closest to the balance
of the term of such Lease (the "Discount Rate") as of the date of the
payment of such amount, and (iii) any loss or damage to the Lessor's
residual interest in the Equipment caused by such Event of Default; (d)
personally, or by its agents, take immediate possession of any or all of
the Equipment from Lessee and, for such purpose, enter upon Lessee's
premises where any of the Equipment is located with or without notice or
process of law and free from all claims by Lessee; and (e) require the
Lessee to, and the Lessee shall, assemble the Equipment and deliver the
Equipment to a location which is reasonably convenient to Lessor and
Lessee. The exercise of any of the foregoing remedies by Lessor shall
not constitute a termination of any Lease or this Agreement unless
Lessor so notifies Lessee in writing.
4.3 DISPOSITION OF EQUIPMENT. In the event, upon the occurrence of an Event
of Default, Lessor repossesses any of the Equipment, Lessor may lease
any or all of such Equipment, or sell any or all of such Equipment at
one or more public or private sales, in such manner, at such times and
upon such terms as Lessor may determine. In the event that Lessor leases
any of such Units, any rentals received by Lessor for the "Remaining
Lease Term" (the period ending on the date when the Original Term for
such Unit would have expired if an Event of Default had not occurred),
discounted to present value, at the Discount Rate, as of the Possession
Date (the "Recovery Rentals"), for such Units shall be applied to the
payment of (a) all costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred by Lessor in retaking possession
of, and removing, storing, repairing, refurbishing and leasing, such
Units, (b) accrued and unpaid rentals as of the date Lessor obtained
possession of such Units or the date on which Lessee made an effective
tender of possession of such Units to Lessor, whichever shall first
occur (the "Possession Date"), (c) the present value of the rentals for
such Units for the balance of the Original Term of the applicable Lease
(the "Discounted Remaining Rentals") and any other sums payable
thereunder or hereunder with respect to such Units, discounted at the
Discount Rate as of the Possession Date, (d) any and all other sums
(other than rentals) with respect to such Units then owing to Lessor by
Lessee thereunder or hereunder, and (e) any loss or damage to the
Lessor's residual interest in such Units caused by such Event of Default
(the aggregate of such amounts being referred to as the "Release
Recovery Amount"). In the event that Lessor shall sell or otherwise
dispose of (other than pursuant to a lease) any such Units, the proceeds
thereof (the "Recovery Proceeds") shall be applied to the payment of the
amounts referred to in clauses (a) through (d) above and the amount by
which the Casualty Value for such Units, as of the Possession Date,
exceeds the Discounted Remaining Rentals (the aggregate of such amounts
being referred to as the "Sale Recovery Amount"). The balance, if any,
of the Recovery Rentals, in the case of a release, and of the Recovery
Proceeds, in the case of a sale or other disposition, shall be applied
first to reimburse Lessee for any sums previously paid by Lessee as
liquidated damages with respect to such Units, and any remaining amounts
shall be retained by Lessor. Lessee shall remain liable to Lessor, with
respect to any Units which are released or sold or otherwise disposed
of, to the extent that the Release Recovery Amount exceeds the Recovery
Rentals or the Sale Recovery Amount exceeds the Recovery Proceeds.
Lessor shall be entitled to, and Lessee shall have no claim with respect
to, all rentals, with respect to any period commencing after the
expiration of the applicable Remaining Lease Term, from released Units.
V. MISCELLANEOUS
5.1 PERFORMANCE OF LESSEE'S OBLIGATIONS. Upon Lessee's failure to pay Rent
(or any other sum due hereunder) or perform any obligation hereunder
when due, Lessor shall have the right, but shall not be obligated, to
pay such sum or perform such obligation, whereupon such sum or the cost
of such performance shall immediately become due and payable hereunder
as additional rent, with interest thereon at the highest legal rate from
the date such payment or performance was made.
5.2 Assignment. LESSEE SHALL NOT RELINQUISH POSSESSION OR CONTROL OF, OR
ASSIGN, SUBLEASE, PLEDGE, HYPOTHECATE OR OTHERWISE TRANSFER, DISPOSE OF
OR ENCUMBER ANY UNIT, THIS AGREEMENT OR ANY LEASE OR SCHEDULE, OR ANY
PART THEREOF OR INTEREST THEREIN, OR ANY RIGHT OR OBLIGATION WITH
RESPECT THERETO, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR.
5.3 QUIET ENJOYMENT. So long as Lessee shall not be in default of any of its
obligations under any Lease, neither Lessor not its assignee shall
interfere with Lessee's right of quiet enjoyment and use of the
Equipment.
5.4 FURTHER ASSURANCES. Lessee shall, upon the request of Lessor, from time
to time, execute and deliver such further documents and do such further
acts as Lessor may reasonably request in order fully to effect the
purposes of any Lease and Lessor's rights thereunder. Lessor is
authorized to file a financing statement, signed only by Lessor in
accordance with the Uniform Commercial Code or signed by Lessor as
Lessee's attorney in fact, with respect to any of the Equipment.
5.5 RIGHT AND REMEDIES. Each and every right and remedy granted to Lessor
under any Lease shall be cumulative and in addition to any other right
or remedy therein specifically granted or now or hereafter 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 deem expedient. Any failure or delay on
the part of Lessor in exercising any such right or remedy, or
abandonment or discontinuance of steps to enforce the same, shall not
operate as a waiver thereof or affect Lessor's right thereafter to
exercise the same. Waiver of any right or remedy on one occasion shall
not be deemed to be a waiver of any other right or remedy or of the same
right or remedy on any other occasion.
5.6 NOTICES. Any notice, request, demand, consent, approval or other
communication provided for or permitted hereunder 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 set forth above
(or at such other address as 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,
addressed to such party at such address.
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5.7 SECTION HEADINGS; COUNTERPARTS. Section headings are inserted for
convenience of reference only and shall not affect any construction or
interpretation of this Agreement. This Agreement and each Lease 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.
5.8 ENTIRE LEASE. This Agreement and each Lease constitute the entire
agreement between Lessor and Lessee with respect to the lease of
Equipment and supersede all other prior or contemporaneous agreements,
whether oral or in writing, with respect thereto. No waiver or amendment
of, or any consent with respect to, any provision of this Agreement
shall bind either party unless set forth in writing, specifying such
waiver, consent, or amendment, signed by both parties, and then such
waiver, consent, or amendment shall be effective only in the specific
instance and for the specific purpose given. Any term or condition of
any purchase order or other document (with the exception of any Lease)
submitted by Lessee in connection with this Lease which is in addition
to or inconsistent with the terms and conditions of this Agreement shall
not be binding on Lessor and shall not apply to this Agreement. To the
extent permitted by applicable law and not otherwise specifically
provided to Lessee in this Agreement, Lessee hereby waives any and all
rights or remedies conferred upon a lessee under the California Uniform
Commercial Code, and any other applicable similar code or statutes of
another jurisdiction, with respect to a default by Lessor under this
Agreement.
5.9 SEVERABILITY. Should any provision of this Agreement or any Lease be or
become invalid, illegal, or unenforceable under applicable law, the
other provisions of this Agreement and such Lease shall not be affected
and shall remain in full force and effect, and, to the extent
permissible under applicable law and possible, any such invalid, illegal
or unenforceable provision shall be deemed amended to the extent
necessary to be valid, legal and enforceable and to conform to the
intent of the parties; provided, however, in the event Lessee's
obligation under any Lease to pay rent or any other amount shall be
invalid, illegal or unenforceable, Lessor shall have the right to
terminate such Lease as if an Event of Default shall have occurred.
5.10 ATTORNEYS' FEES. Should either party institute any action or proceeding
to enforce this Agreement or any Lease, or any provision hereof or
thereof, or for a declaration of rights under any such agreement, the
prevailing party in any such action or proceeding shall be entitled to
receive from the other party all reasonable out-of-pocket costs and
expenses, including, without limitation, attorneys' fees, which it
incurs in connection with such action or proceeding.
5.11 GOVERNING LAW. This Lease shall be governed in all respects by the laws
of the State of California with respect to agreements entered into, and
to be performed, entirely in California. EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED IN ANY LEASE, THIS AGREEMENT AND EACH LEASE SHALL
BE GOVERNED IN ALL RESPECTS BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF CALIFORNIA. LESSOR AND LESSEE WAIVE ALL RIGHTS TO
TRIAL BY JURY IN ANY LITIGATION ARISING FROM THIS AGREEMENT OR ANY
LEASE. 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 HEREUNDER.
5.12 SURVIVAL. All obligations of Lessee to make payments to Lessor under any
Lease or to indemnify Lessor, 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.
LESSEE, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, ACKNOWLEDGES
THAT IT HAS READ THIS LEASE, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS
AND CONDITIONS.
CISCO SYSTEMS CAPITAL CORPORATION (Lessor) RISERCORP, INC. (Lessee)
By: /s/ XXX XXXXXXX By: /s/ XXXXX XXXXXXXX
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(Authorized Signature) (Authorized Signature)
Name/Title: Mgr. Customer Service & Ops. Name/Title: Xxxxx Xxxxxxxx, VP, Finance
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Date: 11/20/97 Date: 11/4/97
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