No. 2719
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MASTER AGREEMENT TO LEASE EQUIPMENT
THIS MASTER AGREEMENT TO LEASE EQUIPMENT (this "Agreement") is entered
into as of February 22, 2000 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 VDC TELECOMMUNICATIONS,
INC., a Delaware corporation ("Lessee"), having its principal place of business
at 00 Xxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000.
1. THE LEASE
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1.1 Lease of Equipment. In accordance with the terms and conditions
of this Agreement, Lessor shall lease to Lessee, and Lessee shall lease from
Lessor, the personal property described in the lease schedule(s) (each, a
"Schedule") to be entered into from time to time into which this Agreement is
incorporated (each Schedule, together with this Agreement, a "Lease"), together
with all substitutions, replacements, repairs, parts and attachments,
improvements and accessions thereto (the "Equipment"). Capitalized terms not
otherwise defined in this Agreement have the meanings specified in the
applicable Schedule. Each Lease shall constitute a separate, distinct, and
independent lease and contractual obligation of Lessee. Except as expressly set
forth in any Lease, Lessor shall at all times retain the full legal title to the
Equipment, it being expressly agreed by both parties that each Lease is an
agreement of lease only.
1.2 Equipment Procurement. Lessee has ordered or may order the
Equipment pursuant to one or more purchase orders or purchase contracts
(together, "Purchase Order") to or with Cisco Systems, Inc., or a Cisco-approved
reseller (together, "Vendor"), which Purchase Order shall be promptly delivered
to Lessor in the event that the parties agree to enter into a lease transaction
with respect to the Equipment described in such Purchase Order. Lessor's
agreement to enter into such a lease transaction is evidenced by Lessor's
preparation and delivery of a Schedule, and the terms of such agreement will be
set forth in such Schedule, provided, however, that the terms of this Agreement
are hereby incorporated into every Schedule whether or not such incorporation is
stated therein. Lessor's failure or refusal to deliver a Schedule to Lessee will
not constitute a breach of this Agreement or of any Lease. Lessee's agreement to
enter into such a lease transaction according to the terms of the previously
delivered Schedule is evidenced by Lessee's execution of the Purchase Order
together with either notification of its decision to execute the Schedule or the
absence of any affirmative notification from Lessee that it has not agreed to
execute the Schedule delivered to it (i.e. silence by Lessee up to and including
the time that Lessee executes a Purchase Order is deemed to be Lessee's
agreement to execute the Schedule).
If it agrees or is deemed to agree to lease from Lessor, then Lessee
shall execute and return to Lessor (a) each Schedule within ten days of Lessee's
receipt of same, and (b) all related or accompanying Certificate of Acceptance
within ten days of receipt and acceptance of the applicable Equipment. Upon
Lessee's agreement or deemed agreement to lease from Lessor (as evidenced
above), Lessee shall be deemed to have assigned to Lessor all Lessee's right,
title and interest in and to the Equipment and the Purchase Order; provided that
Lessor shall have no obligations under the Purchase Order other than as set
forth in the next sentence. Upon Lessee's execution of each Schedule and the
related Certificate(s) of Acceptance, and subject to the following sentence,
Lessor shall cause the purchaser's obligations with respect to that portion of
the purchase price contained in such Purchase Orders which is subject to the
Lease (as set forth in the Schedule) to be discharged. Notwithstanding anything
to the contrary contained herein, if for whatever reason a lease transaction in
respect of the Equipment or a Purchase Order is not consummated, then no
assignment of the Purchase Order shall have occurred, and Lessee shall remain
solely liable to pay Vendor in accordance with the Purchase Order. In the event
that Lessee does not execute the Schedule and related Certificate(s) of
Acceptance or that Lessor determines that no lease transaction has been
consummated for any other reason but that Vendor may seek payment from Lessor
anyway, then the Purchase Order will not be returned to Lessee, and Lessee will
have no rights thereunder until Lessee has fully paid the Purchase Order and
provided Lessor with proof of such full payment.
1.3 Term of Lease. The Original Term of each Lease shall begin on
the Commencement Date as specified in the applicable Schedule and, subject to
Sections 3.5 and 4.2, shall terminate on the date specified in the applicable
Schedule. If so provided in the applicable Schedule, the Original Term for any
Lease may be succeeded by one or more Extended Terms. Subject to Sections 3.5
and 4.2 and any express provisions of the Schedule, no Lease may be terminated
by Lessor or Lessee, for any reason whatsoever, prior to the end of the Original
Term or any pending Extended Term.
1.4 Rental Payments. Lessee shall pay Lessor Rent for the Equipment
in the amounts and at the times specified in the applicable Schedule. All Rent
and other amounts payable by Lessee to Lessor hereunder shall be paid to Lessor
at the address specified above, or at such other place as Lessor may designate
in writing to Lessee from time to time.
1.5 Return of Equipment. If Lessee has not exercised a purchase
option, if any, with respect to the Equipment, then, 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.
2. DISCLAIMERS AND WARRANTIES; INTELLECTUAL PROPERTY
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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 expects that the Equipment is suitable for its purposes
(provided, that upon executing a Certificate of Acceptance, Lessee represents
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
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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 (except that Lessee is not authorized
to enforce such rights if and when there exists an Event of Default and the
enforcement of such rights would materially hamper, delay or prejudice Lessor's
enforcement rights and remedies hereunder). 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.
3. LESSEE OBLIGATIONS
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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.
EXCEPT IN THE EVENT THAT LESSOR OR ITS AGENTS REPOSSESS THE EQUIPMENT IN
MATERIAL BREACH OF THE TERMS OF THIS AGREEMENT, LESSEE'S OBLIGATION TO PAY ALL
RENT AND OTHER SUMS THEREUNDER, AND THE RIGHTS OF LESSOR IN AND TO SUCH
PAYMENTS, SHALL BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY
ABATEMENT, REDUCTION, SETOFF, DEFENSE, COUNTERCLAIM, INTERRUPTION, DEFERMENT OR
RECOUPMENT, FOR ANY REASON WHATSOEVER.
3.2 Use of Equipment. Lessee shall use the Equipment solely in the
conduct of its business, in a manner and for the use contemplated by the
manufacturer thereof, and in 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.
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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
(provided that Lessee has not exercised a purchase option, if any, with respect
to such Equipment), 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 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
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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 (and this exception includes cases in which Lessee
must commence an action against Lessor on account of a gross and material
violation of Lessor's obligations under this Agreement), 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
or after the Equipment has otherwise been removed from Lessee's possession or
control by Lessor), including Claims relating to the manufacture, selection,
purchase, delivery, possession, condition, use, operation, return or other
disposition of the Equipment. Each of the parties shall give the other prompt
written notice of any Claim of which it becomes aware.
3.8 Prohibitions Related to Lease and Equipment. Without the prior
written consent of Lessor, which consent as it pertains to clauses (b) and (d)
below shall not be unreasonably withheld, Lessee shall not: (a) assign,
transfer, or otherwise dispose of any Equipment, the Lease or any rights or
obligations thereunder; (b) sublease any of the Equipment or permit the
Equipment to be controlled by any other person; (c) create or incur, or permit
to exist, any security interest, lien or 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 continental 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.
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
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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 reasonably requested by Lessor with respect to any item of
Equipment, Lessee shall obtain and deliver to Lessor equipment access agreements
or like protections, reasonably 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 time to time reasonably request, provided, however, that
Lessee has no obligation to furnish financial information where the release of
such information would violate or be reasonably likely to violate state or
federal securities laws or applicable regulations of any stock exchange where
Lessee's securities are listed.
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.
4. DEFAULT AND REMEDIES
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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 ten 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 material covenant, condition or agreement
made by it under any Lease, and such failure continues for 20 days; (e)
bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation
or other similar proceedings are instituted by or against Lessee, any guarantor
of any Lease or any partner of a partnership Lessee or guarantor, or all or any
part of such person's property, under the Federal Bankruptcy Code or other law
of the United States or of any other competent jurisdiction, and, if such
proceeding is brought against such person, it consents thereto or fails to cause
the same to be discharged within 45 days after it is filed; (f) Lessee
materially defaults under any agreement with respect to the purchase or
installation of any of the Equipment; or (g) Lessee or any guarantor of any
Lease, or any of their respective subsidiaries or other affiliates, defaults
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under any other material 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 (and to the extent permitted by applicable law),
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 require Lessee to assemble
the Equipment and deliver it to Lessor in accordance with Section 3.3; (c)
recover any and all direct and incidental damages, including all accrued 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)
reasonably 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.
5. MISCELLANEOUS
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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 that
does not purport to change the substantive terms of this Agreement or any Lease,
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
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(except, however, that any assignee of the Lessor will assume obligations
relating entirely to transactions under each Lease which occur after
assignment), and Lessee agrees that it will not assert against any assignee any
defense, counterclaim or offset that Lessee may have against Lessor or any
preceding assignee, and that upon notice of such assignment or transfer, it will
pay all Rent and other sums due under this Agreement and the applicable Lease to
such assignee or transferee. Lessee acknowledges that any assignment or transfer
by Lessor shall not materially change Lessee's duties or obligations under this
Agreement or any Lease, nor materially increase the burdens or risks imposed on
Lessee.
5.4 Further Assurances. Upon the request of Lessor from time to
time, Lessee shall execute and deliver such further documents and do such
further acts as Lessor may be reasonably required or appropriate to 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 or Lessee with respect to any Equipment and ancillary property, in
accordance with any Uniform Commercial Code or other code or statute (provided
that such "other documents" must be reasonably necessary to protect Lessor's
contract expectancies under the Lease), 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. Upon request of Lessee from time to time,
Lessor shall respond to reasonable requests for information from Lessee or its
auditors concerning outstanding or terminated Leases with Lessee, and will
prepare and sign such documents relating to this Agreement to the extent that it
is otherwise lawfully obligated to do so (including, but not limited to UCC-3
Termination Statements relating to specific Leases after Lessee has fully
performed all its obligations under such Leases), provided, however, that
Lessor's failure to fully or timely perform its obligations hereunder shall not
be deemed to be a material breach of its obligations under this Agreement or
under any Lease.
5.5 Rights and Remedies. Each right and remedy granted under any
Lease shall be cumulative and in addition to any other right or remedy existing
in equity, at law, by virtue of statute or otherwise, and may be exercised from
time to time concurrently or independently and as often and in such order as the
enforcing party 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)
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section and paragraph references are to the document in which such reference
appears, unless the context otherwise requires.
5.8 Entire Lease. This Agreement, together with the other Lease
Documents, constitute the entire agreement between Lessor and Lessee with
respect to the lease of the Equipment. No waiver or amendment of, or any consent
with respect to, any provision of any Lease Document shall bind either party
unless set forth in a writing, specifying such waiver, consent, or amendment,
signed by both parties. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND NOT
OTHERWISE SPECIFICALLY GRANTED TO LESSEE IN ANY LEASE DOCUMENT, LESSEE HEREBY
WAIVES ANY AND ALL RIGHTS OR REMEDIES CONFERRED UPON A LESSEE UNDER THE CODE OR
ANY OTHER APPLICABLE LAW OR STATUTE, WITH RESPECT TO A NON-MATERIAL DEFAULT BY
LESSOR UNDER THIS AGREEMENT OR ANY LEASE. Each FMV Lease is intended by the
parties as a "finance lease" under the Code.
5.9 Severability. Should any provision of any Lease Document be
or become invalid, illegal, or unenforceable under applicable law, the other
provisions of such Lease Document shall not be affected and shall remain in full
force and effect.
5.10 Attorneys' Fees; Default Interest; Maximum Rates. Lessee shall
reimburse Lessor for all reasonable and verifiable charges, costs, expenses and
attorney's fees reasonably incurred by Lessor (a) in defending or protecting its
interests in the Equipment, (b) in the enforcement of this Agreement or any
Lease, and (c) in any lawsuit or other legal proceeding to which this Agreement
or any Lease gives rise. However, that Lessee has no reimbursement obligation in
the event that (w) Lessee is not in default under the Agreement, (x) Lessor has
materially breached this Agreement or any Lease, (y) Lessee has commenced a
proceeding against Lessor (which proceeding is not commenced as a counterclaim
or affirmative defense in response to a proceeding commenced by any Lessor), and
(z) Lessee prevails in its claim against Lessor ("prevails" means that Lessee
has been awarded all or substantially all of the relief sought in its
proceeding). Also, Lessee has no reimbursement obligation for the attorneys fees
and costs expended in the negotiation and preparation of this Agreement or any
Schedule or related documents. Any nonpayment of Rent or other amount payable
under any Lease shall result in Lessee's obligation to promptly pay Lessor on
such overdue payment, for the period of time during which it is overdue
(including during any grace period), interest at a rate ("Default Rate") equal
to fourteen percent (14%) per annum. To the extent that any payment of interest
(including any amount deemed imputed interest for purposes of applicable law)
under any Lease Document would otherwise exceed provisions of any law limiting
the highest rate of interest that may be lawfully contracted for, charged or
received by Lessor, such payment amount shall be deemed reduced to such amount
as is equal to or consistent with the highest rate permitted by applicable law.
5.11 Governing Law and Jurisdiction. THIS AGREEMENT AND THE OTHER
LEASE DOCUMENTS SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF
CALIFORNIA. LESSOR AND LESSEE WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY
LITIGATION ARISING FROM ANY LEASE DOCUMENT. LESSEE CONSENTS TO THE NON-EXCLUSIVE
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JURISDICTION OF THE STATE COURTS AND THE FEDERAL COURTS LOCATED IN NEW YORK
CITY, NEW YORK, FOR THE RESOLUTION OF ANY DISPUTES UNDER ANY LEASE DOCUMENT.
5.12 Survival. All obligations of Lessee to make payments to Lessor
under any Lease or to indemnify Lessor, including pursuant to Section 3.4 or 3.7
above, with respect to a Lease, and all rights of Lessor hereunder with respect
to a Lease, shall survive the termination of such Lease and the return of the
Equipment.
5.13 Security. To secure the payment and performance by Lessee of all
obligations under each Lease, Lessee hereby grants Lessor a security interest in
Lessee's right, title and interest, now existing and hereafter arising, in and
to, (a) all Equipment subject to such Lease, (b) all insurance, warranty, rental
and other claims and rights to payment and chattel paper arising out of such
Equipment, and (c) all books, records and proceeds relating to the foregoing.
5.14 Counterparts; Chattel Paper. Each Lease Document may be executed
in counterparts, and when so executed each counterpart shall be deemed to be an
original, and such counterparts together shall constitute one and the same
instrument. The original of each Schedule shall constitute chattel paper for
purposes of the Code. If there exist multiple originals of a Schedule, the one
marked "Lessor's Copy" or words of similar import, shall be the only chattel
paper.
5.15 Appendix. Any lease Appendix executed by Lessor and Lessee
making reference to this Agreement is a part of and incorporated into this
Agreement by this reference.
5.16 No Obligation to Purchase or Lease Equipment; Non-Exclusive
Relationship. Nothing in this Agreement shall impose upon Lessee any obligation
to purchase or lease any equipment from Vendor, Lessor or any other person prior
to its execution of a Purchase Order. Also, nothing in this Agreement shall
impose upon Lessor any obligation to either enter into any lease transaction
prior to its delivery of a Schedule or to prepare or deliver a Schedule to
Lessee when presented with a Purchase Order (whether in draft or final form).
Lessee's relationship with Lessor is non-exclusive, and provided that Lessee has
not agreed or deemed to have agreed to enter into a lease transaction with
Lessor or to otherwise execute a Schedule, Lessee is free to purchase equipment
subject to such Purchase Order without leasing it from Lessor or any other
party.
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EACH PARTY, 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 REPRESENTS THAT HE
OR SHE IS AUTHORIZED TO EXECUTE AND DELIVER THIS AGREEMENT ON BEHALF OF HIS OR
HER RESPECTIVE PARTY.
LESSOR: LESSEE:
CISCO SYSTEMS CAPITAL CORPORATION VDC TELECOMMUNICATIONS
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxxxx X. Xxxxx
----------------------- ----------------------
(Authorized Signature) (Authorized Signature)
Servicing Operations Manager President
---------------------------- ---------------------------
(Name/Title) (Name/Title)
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