EXHIBIT 10(H)
[LOGO]
No. 2539
MASTER AGREEMENT TO LEASE EQUIPMENT
THIS MASTER AGREEMENT TO LEASE EQUIPMENT (this "AGREEMENT") is entered into
as of NOVEMBER 1, 1999 by and between CISCO SYSTEMS CAPITAL CORPORATION
("LESSOR"), having its principal place of business at 000 Xxxx Xxxxxx Drive,
Mailstop SJC2, 3rd Floor, Xxx Xxxx, Xxxxxxxxxx 00000 and GREENLAND
CORPORATION, a _____________ Corporation ("LESSEE"), having its principal
place of business at 0000 Xxxxxxx Xxx Xxx, Xxxxx X, Xxxxxxxxx, XX 00000.
I. THE LEASE
1.1 LEASE OF EQUIPMENT. In accordance with the terms and conditions
of this Agreement, Lessor shall lease to Lessee, and Lessee shall lease from
Lessor, the personal property described in the lease schedule(s) (each, a
"SCHEDULE") to be entered into from time to time into which this Agreement is
incorporated (each Schedule, together with this Agreement, a "LEASE"),
together with all substitutions, replacements, repairs, parts and
attachments, improvements and accessions thereto (the "EQUIPMENT").
Capitalized terms not otherwise defined in this Agreement have the meanings
specified in the applicable Schedule. Each Lease shall constitute a separate,
distinct, and independent lease and contractual obligation of Lessee. Except
as expressly set forth in any Lease, Lessor shall at all times retain the
full legal title to the Equipment, it being expressly agreed by both parties
that each Lease is an agreement of lease only.
1.2 TERM OF LEASE. The Original Term of each Lease shall begin on the
Commencement Date as specified in the applicable Schedule and, subject to
Sections 3.5 and 4.2, shall terminate on the date specified in the applicable
Schedule. If so provided in the applicable Schedule, the Original Term for any
Lease may be succeeded by one or more Extended Terms. Subject to Sections 3.5
and 4.2 and any express provisions of the Schedule, no Lease may be terminated
by Lessor or Lessee, for any reason whatsoever, prior to the end of the Original
Term or any pending Extended Term.
1.3 RENTAL PAYMENTS. Lessee shall pay Lessor Rent for the Equipment
in the amounts and at the times specified in the applicable Schedule. All
Rent and other amounts payable by Lessee to Lessor hereunder shall be paid to
Lessor at the address specified above, or at such other place as Lessor may
designate in writing to Lessee from time to time.
1.4 RETURN OF EQUIPMENT. Upon expiration of the Lease Term, Lessee
shall immediately return the Equipment to Lessor in the condition and at the
place provided in Section 3.3.
1.
II. DISCLAIMERS AND WARRANTIES; INTELLECTUAL PROPERTY
2.1 DISCLAIMERS; WARRANTIES. Lessee represents and acknowledges that
the Equipment is of a size, design, capacity and manufacture selected by it,
and that it is satisfied that the Equipment is suitable for its purposes.
LESSEE LEASES THE EQUIPMENT AS IS, AND, NOT BEING THE MANUFACTURER OF THE
EQUIPMENT, THE MANUFACTURER'S AGENT OR THE SELLER'S AGENT, LESSOR MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY,
FITNESS FOR ANY PARTICULAR PURPOSE, DESIGN OR CONDITION OF THE EQUIPMENT.
LESSOR SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE
INSTALLATION, OPERATION OR OTHER USE, OR DEINSTALLATION OF THE EQUIPMENT,
INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS.
Lessee shall look solely to the manufacturer or the supplier of the Equipment
for correction of any problems that may arise with respect thereto, and all
transferable manufacturer and supplier warranty rights are, to the extent
such rights have been transferred to Lessor, hereby assigned without
representation or warranty by Lessor to Lessee for the Lease Term, which
warranties Lessee is authorized to enforce if and when there exists no Event
of Default. Any such enforcement shall be at Lessee's sole cost and expense.
2.2 INTELLECTUAL PROPERTY. Lessee acknowledges that neither this
Agreement nor any Lease conveys any explicit or implicit license for the use
of software or other intellectual property of Cisco Systems, Inc. or its
affiliates relating to the Equipment and that such license rights, to the
extent they exist, are contained in separate documentation entered into
between Lessee and Cisco Systems, Inc. or other persons. LESSOR MAKES NO
WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH RESPECT TO THE INTELLECTUAL
PROPERTY RIGHTS, INCLUDING ANY PATENT, COPYRIGHT AND TRADEMARK RIGHTS, OF ANY
THIRD PARTY WITH RESPECT TO THE EQUIPMENT, WHETHER RELATING TO INFRINGEMENT
OR OTHERWISE. Lessor shall, when reasonably requested in writing by Lessee,
provided there exists no Event of Default and an indemnity satisfactory to
Lessor is delivered by Lessee, and at Lessee's cost and expense, enforce
rights of indemnification, if any, for patent, copyright or other
intellectual property infringement obtained from the manufacturer under any
agreement for purchase of the Equipment. If notified promptly in writing of
any action brought against Lessee based on a claim that the Equipment
infringes a United States patent, copyright or other intellectual property
right, Lessor shall promptly notify the manufacturer thereof for purposes of
exercising, for the benefit of Lessee, Lessor's rights with respect to such
claim under any such agreement.
III. LESSEE OBLIGATIONS
3.1 NET LEASE; PAYMENTS UNCONDITIONAL. EACH LEASE IS A NET LEASE,
AND ALL COSTS, EXPENSES AND LIABILITIES RELATING TO THE EQUIPMENT, INCLUDING
IN RESPECT OF TAXES, INSURANCE AND MAINTENANCE, SHALL BE BORNE SOLELY BY
LESSEE. LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER SUMS THEREUNDER, AND
THE RIGHTS OF LESSOR IN AND TO SUCH PAYMENTS, SHALL BE ABSOLUTE AND
UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION, SETOFF,
DEFENSE,
2.
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 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 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
3.
shall promptly cause such item to be repaired and restored to the condition
and value it had prior to such Event of Loss, at its own cost and expense),
Lessee shall pay to Lessor on the Rent payment date following Lessor's
receipt of such notice (or, if none, 30 days after such Event of Loss), an
amount equal to the Rent payment or payments due and payable with respect to
such Equipment on or prior to such date, plus a sum equal to the Casualty
Value of such Equipment as of such date. Upon making such payment, the Rent
for such Equipment shall cease to accrue, the term of the Lease as to such
Equipment shall terminate and (except in the case of loss, unrecovered theft
or complete destruction) Lessor shall be entitled to recover possession of
such Equipment in accordance with the provisions of Section 3.3 above. If
Lessor has received the foregoing amount, Lessee shall be entitled to the
proceeds of any recovery in respect of such Equipment from insurance or
otherwise, provided that if the Equipment is subject to an FMV Lease, Lessee
shall be entitled to receive such proceeds only up to the Casualty Value
therefor, any excess amount to be paid to Lessor.
3.6 INSURANCE. Lessee shall obtain and maintain for the Lease Term
at its own expense, property damage and liability insurance and insurance
against loss or damage to the Equipment as a result of fire, explosion,
theft, vandalism and such other risks of loss as are normally maintained on
equipment of the type leased hereunder by companies carrying on the business
in which Lessee is engaged, in such amounts, in such form and with such
insurers as shall be satisfactory to Lessor. Each insurance policy shall name
Lessee as insured and Lessor and its assignees as additional insureds and
loss payees thereof as their interest may appear, and shall provide that it
may not be cancelled or altered without at least 30 days' prior written
notice thereof being given to Lessor (or 10 days', in the event of
non-payment of premium).
3.7 INDEMNITY. Except with respect to the gross negligence or
willful misconduct of Lessor, Lessee hereby indemnifies, protects, defends
and holds harmless Lessor from and against any and all claims, liabilities
(including negligence, tort and strict liability), demands, actions, suits,
and proceedings, losses, costs, expenses and damages, including reasonable
attorneys' fees and costs (collectively, "CLAIMS"), arising out of, connected
with, or resulting from any Lease or any of the Equipment, or any ancillary
or related software or other intangibles, whether arising before, during or
after the lease term (but not Claims relating to events occurring after
Lessee has returned the Equipment to Lessor in accordance with Section 3.3),
including Claim 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 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.
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.
4.
3.10 ALTERATIONS AND MODIFICATIONS. Lessee shall not make any
additions, attachments, alterations or improvements to the Equipment without
the prior written consent of Lessor, not to be unreasonably withheld. Any
addition, attachment, alteration or improvement to any item of Equipment
shall belong to and become the property of Lessor unless, at the request of
Lessor, it is removed prior to the return of such item of Equipment by
Lessee. Lessee shall be responsible for all costs relating to such removal
and shall restore such item of Equipment to the condition and value otherwise
required hereunder.
3.11 PERSONAL PROPERTY. Lessee acknowledges and represents that the
Equipment shall be and remain personal property, notwithstanding the manner
by which it may be attached or affixed to realty, and Lessee shall do all
acts and enter into all agreements necessary to ensure that the Equipment
remains personal property. If requested by Lessor with respect to any item of
Equipment, Lessee shall obtain and deliver to Lessor equipment access
agreements, satisfactory to Lessor, from all persons claiming any interest in
the real property on which such item of Equipment is installed or located.
3.12 FINANCIAL STATEMENTS. Lessee shall promptly furnish to Lessor such
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 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.
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
5.
subsidiaries or other affiliates, defaults under any other instrument or
agreement with Lessor or Cisco Systems, Inc.
4.2 REMEDIES. If an Event of Default exists, Lessor may exercise any one or
more of the following remedies, in addition to those arising under applicable
law: (a) proceed, by appropriate court action, to enforce performance by Lessee
of the applicable covenants of any or all of the Leases; (b) terminate any or
all Leases by notice to Lessee and take possession of any or all of the
Equipment and, for such purpose, enter upon any premises where the Equipment is
located with or without notice or process of law and free from all claims by
Lessee or any other person, or require Lessee to assemble the Equipment and
deliver it to Lessor in accordance with Section 3.3; (c) recover any and all
direct, incidental and consequential damages, including all accrued and unpaid
Rent and other amounts owing under any Lease, and (i) for any Lease that is an
FMV Lease, the Equipment for which has not been returned to Lessor in the
condition required hereunder, an amount equal to the Casualty Value thereof, or
(ii) for any Lease that is an FMV Lease, the Equipment for which has been so
returned to Lessor, such amounts as are provided for the lessee breach of a
personal property lease under the Uniform Commercial Code of the jurisdiction
specified in Section 5.11 (the "CODE"), using the Discount Rate to calculate
present values for such purpose; or (iii) for any Lease that is not an FMV
Lease, an amount equal to the present value, discounted at the Discount Rate, of
the sum of all Rent and other payments remaining to be paid under such Lease
through the Lease Term plus the applicable purchase option amount specified in
Paragraph 7 of the Schedule; and (d) sell or re-lease any or all of the
Equipment, through public or private sale or lease transactions, and apply the
proceeds thereof to Lessee's obligations under such Leases or otherwise seek
recovery in accordance with applicable provisions of the Code. Lessee shall
remain liable for any resulting deficiency and Lessor may retain any surplus it
may realize in connection with an FMV Lease. The "DISCOUNT RATE" shall be the
rate for U.S. Treasury obligations having a constant maturity of three months,
as specified in the Federal Reserve Statistical Release H.15 (or replacement
publication) issued most recently prior to the date of termination of the Lease.
Lessee shall pay all costs and expenses (including reasonable attorneys' fees)
incurred by Lessor in retaking possession of, and removing, storing, repairing,
refurbishing and selling or leasing such Equipment and enforcing any obligations
of Lessee pursuant to any Lease.
V. MISCELLANEOUS
5.1 PERFORMANCE OF LESSEE'S OBLIGATIONS. Upon Lessee's failure to pay any
amount or perform any obligation under any Lease when due, Lessor shall have the
right, but shall not be obligated, to pay such sum or perform such obligation,
whereupon such sum or cost of such performance shall immediately become due and
payable thereunder, with interest thereon at the Default Rate from the date such
payment or performance was made.
5.2 RIGHT TO USE. So long as no Event of Default exists, neither Lessor nor
its assignee shall interfere with Lessee's right to use the Equipment under any
Lease.
5.3 ASSIGNMENT BY LESSOR. Lessor may assign or transfer any or all of
Lessor's interest in this Agreement, any Lease, any Equipment or Rents, without
notice to Lessee. Any assignee of Lessor shall have all of the rights, but none
of the obligations (unless otherwise provided in the applicable assignment), of
a "Lessor" under this Agreement and the applicable Lease, and Lessee agrees that
it will not assert against any assignee any defense, counterclaim or
6.
offset that Lessee may have against Lessor or any preceding assignee, and that
upon notice of such assignment or transfer, it will pay all Rent and other sums
due under this Agreement and the applicable Lease to such assignee or
transferee. Lessee acknowledges that any assignment or transfer by Lessor shall
not materially change Lessee's duties or obligations under this Agreement or any
Lease, nor materially increase the burdens or risks imposed on Lessee.
5.4 FURTHER ASSURANCES. Upon the request of Lessor from time to time, Lessee
shall execute and deliver such further documents and do such further acts as
Lessor may reasonably request in order fully to effect the purposes of this
Agreement or any Lease. Lessee hereby appoints Lessor its attorney in fact,
coupled with an interest, authorized, without any obligation to do so, (a) to
sign on Lessee's behalf and file, record and register financing statements, and
amendments and continuations thereof, and any other documents relating to liens,
security interests or property rights of Lessor, Lessee or any third person with
respect to any Equipment and ancillary property, in accordance with any Uniform
Commercial Code or other code or 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 statue or otherwise, and may be exercised by
Lessor from time to time concurrently or independently and as often and in such
order as Lessor may elect. Any failure or delay on the part of Lessor in
exercising any such right or remedy shall not operate as a waiver thereof.
5.6 NOTICES. Any notice, request, demand, consent, approval or other
communication provided for or permitted in relation to any Lease shall be in
writing and shall be conclusively deemed to have been received by a party hereto
on the day it is delivered to such party at its address, or received by the
party at such facsimile number, as is set forth in such Lease (or at such other
addresses or fax numbers such party shall specify to the other party in
writing), or if sent by registered or certified mail, return receipt requested,
on the fifth day after the day on which it is mailed, postage prepaid, addressed
to such party.
5.7 SECTION HEADINGS; INTERPRETATION. Section headings are inserted for
convenience of reference only and shall not affect any construction or
interpretation of any Lease Document. In interpreting the provisions of any
Lease Document, (a) the term "including" is not limiting, (b) references to
"person" include individuals, corporations and other legal persons and
entities; (c) the singular of defined terms includes the plural and vice-versa;
and (d) section and paragraph references are to the document in which such
reference appears, unless the context otherwise requires.
5.8 ENTIRE LEASE. This Agreement, together with the other Lease Documents,
constitute the entire agreement between Lessor and Lessee with respect to the
lease of the Equipment. No waiver or amendment of, or any consent with respect
to, any provision of any Lease Document shall bind either party unless set forth
in a writing, specifying such waiver, consent, or amendment, signed by
both parties. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND NOT OTHERWISE
SPECIFICALLY GRANTED TO LESSEE IN ANY LEASE DOCUMENT, LESSEE HEREBY WAIVES ANY
AND ALL RIGHTS OR REMEDIES CONFERRED UPON A LESSEE UNDER THE CODE OR
7.
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 REPRESENTS
THAT HE OR SHE IS AUTHORIZED TO EXECUTE AND DELIVER THIS AGREEMENT ON BEHALF OF
LESSEE.
LESSOR: LESSEE:
CISCO SYSTEMS CAPITAL GREENLAND CORPORATION
CORPORATION
By:________________________________ By:________________________________
(Authorized Signature) (Authorized Signature)
___________________________________ ___________________________________
(Name/Title) (Name/Title)
By:________________________________
(Authorized Signature)
___________________________________
(Name/Title)
9.
[LOGO]
SCHEDULE XX. 000-000
XXXXXX XXXXXXXXX XX. 0000
THIS SCHEDULE NO. 001-000 (this "SCHEDULE") dated as of November 3, 1999, by
and between CISCO SYSTEMS CAPITAL CORPORATION ("LESSOR"), having its
principal place of business at 000 Xxxx Xxxxxx Drive, Mailstop SJC2, 0xx
Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, fax number 000.000.0000, and GREENLAND
CORPORATION ("LESSEE") having its principal place of business at 0000 Xxxxxxx
Xxx Xxx, Xxxxx X, Xxxxxxxxx, XX 00000, supplements that certain Master
Agreement to Lease Equipment No. 2539 dated as of November 1, 1999 (the
"AGREEMENT," and together with this Schedule, the "LEASE") between Lessor and
Lessee, incorporated herein by this reference. Capitalized terms not
otherwise defined herein have the meanings specified in the Agreement.
1. EQUIPMENT DESCRIPTION. Quantity, manufacturer, model and serial number of
the Equipment subject to this Schedule are as specified in the Invoice(s)
referenced at Annex B hereto (collectively, the "INVOICE"). Unless otherwise
specified in the applicable Invoice, the Equipment is new.
2. EQUIPMENT LOCATION. The Equipment shall at all times be installed or located
at the location specified in Annex B or such other location as is permitted
under the Agreement.
3. EQUIPMENT COST. The "EQUIPMENT COST" for any item of Equipment is the sum of
(a) the equipment purchase price specified in the Invoice, plus (b) all
taxes, shipping, insurance, installation, cabling, maintenance, software and
related expenses to the extent paid or financed by Lessor in its discretion
(collectively, "SOFT COSTS") and as may be reflected in Annex B hereto. The
aggregate Equipment Cost for all Equipment under this Schedule is $39,120.00
4. RENTAL PAYMENT AMOUNT. Based on the aggregate Equipment Cost above and the
lease payment factor(s) set forth below, the monthly rental payment in
respect of the Equipment is $1,916.28 ("RENT"):
Equipment Rental Factor: 3.95%
Software Finance Factor: 4.60%
Maintenance Finance Factor: 8.75%
Integration Services Finance Factor: N/A
5. LEASE TERM. The "LEASE TERM" of this Lease shall begin on the Commencement
Date and shall consist of an "ORIGINAL TERM" equal to 24 months and, if this
is an FMV Lease (as defined in Paragraph 8), the Original Term shall
automatically be extended on a month-to-month basis (each, an "EXTENDED
TERM") unless either party notifies the other not later than 30 days prior
to the end of the Lease Term or any extension thereof of its election not to
extend such lease term or extended term. If this is not an FMV Lease, the
Lease Term shall end at the end of the Original Term. The "COMMENCEMENT
DATE" of this Lease shall be the earlier to occur of (i) the execution date
specified in the certificate of acceptance, if any, delivered by Lessee
("CERTIFICATE OF ACCEPTANCE") relating to the Equipment or if the Equipment
is delivered in multiple shipments, relating to the last item of Equipment
delivered to Lessee. Notwithstanding any provision to the contrary contained
in any Lease Document, Lessee shall be deemed to have irrevocably accepted,
for purposes of the Lease, the Equipment on the Commencement Date. Lessee
agrees to complete, sign and return to Lessor any Certificate of Acceptance
sent to Lessee, promptly upon Lessee's receipt and acceptance of the
relevant Equipment.
1.
6. RENT PAYMENTS. Rent for the Original Term shall be payable in 24
consecutive, equal monthly payments, on the first day of each such period,
commencing with the first day of the calendar month immediately following
the Commencement Date (unless the Commencement Date is the first day of the
month and rent is payable in advance, in which case the first Rent payment
shall be due on such date). Lessor agrees that no Rent shall be payable for
any period prior to the Commencement Date or for the period from the
Commencement Date (provided such date is not the first day of the month)
until, but not including, the first day of the calendar month immediately
following the Commencement Date. Unless otherwise agreed in writing by the
Lessor at such time, the Rent for any Extended Term shall be payable
monthly, in advance, and shall be in a daily-equivalent amount equal to that
of the original Rent, adjusted, as applicable, for Soft Costs.
7. END OF TERM PURCHASE OPTION PRICE. Lessee may or shall, as the case may be,
purchase the Equipment in accordance with the terms of Paragraph 8 for the
following amount (as checked and completed by Lessor):
/ / (a) $ 1.00
/X/ (b) Fair Market Value (as defined in Paragraph 8)
8. END OF TERM PURCHASE OPTION.
(a) If option (b) is selected at Paragraph 7, this Lease shall be deemed an
"FMV LEASE" and Lessee shall have an end of term purchase option as follows.
(If no option is selected at Paragraph 7, option (b) shall be deemed to
apply.) Provided this Lease has not been terminated earlier and there exists
no Event of Default or event which with notice, lapse of time or both, would
be an Event of Default, not earlier than 90 days and not later than 30 days
before the end of the Original Term, Lessee may deliver to Lessor an
irrevocable notice electing to purchase all (but not less than all) of the
Equipment at the end of the Original Term for amount equal to the amount
specified in the provision selected (or deemed selected) in Paragraph 7,
which amount Lessee shall pay to Lessor on the last day of the Original
Term. If no such notice is delivered by Lessee to Lessor within such period,
Lessee shall be deemed to have waived any right to purchase such Equipment.
(b) If option (a) of Paragraph 7 is selected, Lessee shall pay Lessor the
amount specified in such option on the last day of the Original Term.
(c) Upon full payment to it of the amount specified in clause (a) or (b) of
this Paragraph 8, Lessor shall transfer its right, title and interest in and
to such Equipment to Lessee without recourse or warranty, except that Lessor
shall warrant that such Equipment is free and clear of any lien or
encumbrance arising by or through Lessor.
(d) "FAIR MARKET VALUE" shall mean the value which would obtain in an
arm's-length transaction between an informed and willing buyer-user (other
than a lessee currently in possession or a used equipment dealer) under no
compulsion to buy, and an informed and willing seller under no compulsion to
sell and, in such determination, costs of removal from the location of
current use shall not be a deduction from such value. Fair Market Value
shall be determined by the mutual agreement of Lessor and Lessee in
accordance with the preceding sentence or, if Lessee and Lessor cannot agree
within 20 days after Lessee's notice of election to purchase under clause
(a) of this Paragraph 8, by a qualified independent equipment appraiser
selected by Lessor, at Lessee's cost.
9. CASUALTY VALUE. The Casualty Value of the Equipment shall be determined in
accordance with Annex A hereto.
10. TECHNOLOGY REFRESH. Upon no less than 90 days' advance written notice to
Lessor and provided the Lease is not in default, subject to Lessor's credit
approval at that time, Lessee may as of any scheduled Rent payment date,
return any or all of the Cisco Systems - manufactured Equipment under this
Schedule to Lessor and be excused from the final scheduled Rent payments
related to such Equipment, provided Lessee (a) pays the
2.
ANNEX B
TO
SCHEDULE NO. 001-000
TO
MASTER AGREEMENT NO. 2539
EQUIPMENT INVOICES, COST AND LOCATION
As set forth below:
See attached for equipment invoices and location.
B-1
subsidiaries or other affiliates, defaults under any other instrument or
agreement with Lessor or Cisco Systems, Inc.
4.2 REMEDIES. If an Event of Default exists, Lessor may exercise any one or
more of the following remedies, in addition to those arising under applicable
law: (a) proceed, by appropriate court action, to enforce performance by Lessee
of the applicable covenants of any or all of the Leases; (b) terminate any or
all Leases by notice to Lessee and take possession of any or all of the
Equipment and, for such purpose, enter upon any premises where the Equipment is
located with or without notice or process of law and free from all claims by
Lessee or any other person, or require Lessee to assemble the Equipment and
deliver it to Lessor in accordance with Section 3.3; (c) recover any and all
direct, incidental and consequential damages, including all accrued and unpaid
Rent and other amounts owing under any Lease, and (i) for any Lease that is an
FMV Lease, the Equipment for which has not been returned to Lessor in the
condition required hereunder, an amount equal to the Casualty Value thereof; or
(ii) for any Lease that is an FMV Lease, the Equipment for which has been so
returned to Lessor, such amounts as are provided for the lessee breach of a
personal property lease under the Uniform Commercial Code of the jurisdiction
specified in Section 5.11 (the "CODE"), using the Discount Rate to calculate
present values for such purpose; or (iii) for any Lease that is not an FMV
Lease, an amount equal to the present value, discounted at the Discount Rate, of
the sum of all Rent and other payments remaining to be paid under such Lease
through the Lease Term plus the applicable purchase option amount specified in
Paragraph 7 of the Schedule; and (d) sell or re-lease any or all of the
Equipment, through public or private sale or lease transactions, and apply the
proceeds thereof to Lessee's obligations under such Leases or otherwise seek
recovery in accordance with applicable provisions of the Code Lessee shall
remain liable for any resulting deficiency and Lessor may retain any surplus it
may realize in connection with an FMV Lease. The "DISCOUNT RATE" shall be the
rate for U.S. Treasury obligations having a constant maturity of three months,
as specified in the Federal Reserve Statistical Release H. 15 (or replacement
publication) issued most recently prior to the date of termination of the Lease.
Lessee shall pay all costs and expenses (including reasonable attorneys' fees)
incurred by Lessor in retaking possession of, and removing, storing, repairing,
refurbishing and selling or leasing such Equipment and enforcing any obligations
of Lessee pursuant to any Lease
V. MISCELLANEOUS
5.1 PERFORMANCE OF LESSEE'S OBLIGATIONS. Upon Lessee's failure to pay any
amount or perform any obligation under any Lease when due, Lessor shall have the
right, but shall not be obligated, to pay such sum or perform such obligation,
whereupon such sum or cost of such performance shall immediately become due and
payable thereunder, with interest thereon at the Default Rate from the date such
payment or performance was made.
5.2 RIGHT TO USE. So long as no Event of Default exists, neither Lessor nor
its assignee shall interfere with Lessee's right to use the Equipment under any
Lease.
5.3 ASSIGNMENT BY LESSOR. Lessor may assign or transfer any or all of
Lessor's interest in this Agreement, any Lease. any Equipment or Rents, without
notice to Lessee. Any assignee of Lessor shall have all of the rights, but none
of the obligations (unless otherwise provided in the applicable assignment), of
a "Lessor" under this Agreement and the applicable Lease, and Lessee agrees that
it will not assert against any assignee any defense, counterclaim or
6.
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 REPRESENTS
THAT HE OR SHE IS AUTHORIZED TO EXECUTE AND DELIVER THIS AGREEMENT ON BEHALF OF
LESSEE.
LESSOR: LESSEE:
CISCO SYSTEMS CAPITAL GREENLAND CORPORATION
CORPORATION
By:_______________________________ By:_______________________________
(Authorized Signature) (Authorized Signature)
__________________________________ __________________________________
(Name/Title) (Name/Title)
By:_______________________________
(Authorized Signature)
__________________________________
(Name/Title)
9.
[LOGO]
SCHEDULE XX. 000-000
XXXXXX XXXXXXXXX XX. 0000
THIS SCHEDULE NO. 001-000 (this "SCHEDULE") dated as of November 3, 1999, by
and between CISCO SYSTEMS CAPITAL CORPORATION ("LESSOR"), having its
principal place of business at 000 Xxxx Xxxxxx Drive, Mailstop SJC2, 0xx
Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, fax number 000.000.0000, and GREENLAND
CORPORATION ("LESSEE") having its principal place of business at 0000 Xxxxxxx
Xxx Xxx, Xxxxx X, Xxxxxxxxx, XX 00000, supplements that certain Master
Agreement to Lease Equipment No. 2539 dated as of November 1, 1999 (the
"AGREEMENT," and together with this Schedule, the "LEASE") between Lessor and
Lessee, incorporated herein by this reference. Capitalized terms not
otherwise defined herein have the meanings specified in the Agreement
1. EQUIPMENT DESCRIPTION. Quantity, manufacturer, model and serial number of
the Equipment subject to this Schedule are as specified in the Invoice(s)
referenced at Annex B hereto (collectively, the "INVOICE"). Unless otherwise
specified in the applicable Invoice, the Equipment is new.
2. EQUIPMENT LOCATION. The Equipment shall at all times be installed or located
at the location specified in Annex B or such other location as is permitted
under the Agreement
3. EQUIPMENT COST. The "EQUIPMENT COST" for any item of Equipment is the sum of
(a) the equipment purchase price specified in the Invoice, plus (b) all
taxes, shipping, insurance, installation, cabling, maintenance, software and
related expenses to the extent paid or financed by Lessor in its discretion
(collectively, "SOFT COSTS") and as may be reflected in Annex B hereto. The
aggregate Equipment Cost for all Equipment under this Schedule is
$39,120.00.
4. RENTAL PAYMENT AMOUNT. Based on the aggregate Equipment Cost above and the
lease payment factor(s) set forth below, the monthly rental payment in
respect of the Equipment is $1,916.28 ("RENT"):
Equipment Rental Factor: 3.95%
Software Finance Factor: 4.60%
Maintenance Finance Factor: 8.75%
Integration Services Finance Factor: N/A
5. LEASE TERM. The "LEASE TERM" of this Lease shall begin on the Commencement
Date and shall consist of an "ORIGINAL TERM" equal to 24 months and, if this
is an FMV Lease (as defined in Paragraph 8), the Original Term shall
automatically be extended on a month-to-month basis (each, an "EXTENDED
TERM") unless either party notifies the other not later than 30 days prior
to the end of the Lease Term or any extension thereof of its election not to
extend such lease term or extended term. If this is not an FMV Lease, the
Lease Term shall end at the end of the Original Term. The "COMMENCEMENT
DATE" of this Lease shall be the earlier to occur of (i) the execution date
specified in the certificate of acceptance, if any, delivered by Lessee
("CERTIFICATE OF ACCEPTANCE") relating to the Equipment or if the Equipment
is delivered in multiple shipments, relating to the last item of Equipment
delivered to Lessee. Notwithstanding any provision to the contrary contained
in any Lease Document, Lessee shall be deemed to have irrevocably accepted,
for purposes of the Lease, the Equipment on the Commencement Date. Lessee
agrees to complete, sign and return to Lessor any Certificate of Acceptance
sent to Lessee, promptly upon Lessee's receipt and acceptance of the
relevant Equipment.
1.
ANNEX B
TO
SCHEDULE NO. 001-000
TO
MASTER AGREEMENT NO. 2539
EQUIPMENT INVOICES, COST AND LOCATION
As set forth below:
See attached for equipment invoices and location.
B-1
