Exhibit 10.44
No. 3164
MASTER AGREEMENT TO LEASE EQUIPMENT
THIS MASTER AGREEMENT TO LEASE EQUIPMENT (this "Agreement") is entered into
as of 8-17-2000, 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 Interliant, Inc., a Delaware
corporation ("Lessee"), having its principal place of business at Xxx
Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 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 shall order the Equipment
pursuant to one or more purchase orders or purchase contracts (together,
"Purchase Order") to or with Cisco Systems, Inc., or a Cisco-approved reseller
(together, "Vendor"), which Purchase Order shall be promptly delivered to
Lessor. Subject to Lessor's acceptance of such Equipment, as evidenced by its
preparation and delivery to Lessee for signature of a Schedule relating to such
Equipment, Lessee shall be deemed to have assigned to Lessor all Lessee's right,
title and interest in and to the Equipment and the Purchase Order; provided that
Lessor shall have no obligations under the Purchase Order. Lessee shall execute
and return to Lessor (a) each Schedule within five days of Lessee's receipt of
same, and (b) each Certificate of Acceptance within five days of receipt and
acceptance of the applicable Equipment. If for whatever reason the lease
transaction in respect of the Equipment is not consummated, (i) Lessee shall
remain solely liable to pay Vendor in accordance with the Purchase Order, and
(ii) upon receipt of satisfactory evidence of such payment by Lessee, Lessor
shall assign to Lessee, without warranty, its right, title and interest in and
to the Equipment and the Purchase Order.
1.3 Term of Lease. The Original Term of each Lease shall begin on the
Commencement Date as specified in the applicable Schedule and, subject to
Sections 3.5 and 4.2, shall terminate on the date specified in the applicable
Schedule. If so provided in the applicable Schedule, the Original Term for any
Lease may be succeeded by one or more Extended Terms. Subject to Sections 3.5
and 4.2 and any express provisions of the Schedule, no
Lease may be 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. Subject to any option to purchase set for in a
Schedule, 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 is satisfied that the Equipment is suitable for its purposes. LESSEE LEASES
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THE EQUIPMENT AS IS, AND, NOT BEING THE MANUFACTURER OF THE EQUIPMENT, THE
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MANUFACTURER'S AGENT OF THE SELLER'S AGENT, LESSOR MAKES NO WARRANTY OR
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REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS FOR ANY
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PARTICULAR PURPOSE, DESIGN OR CONDITION OF THE EQUIPMENT. LESSOR SHALL NOT BE
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RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE INSTALLATION, OPERATION
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OR OTHER USE, OR DEINSTALLATION OF THE EQUIPMENT, INCLUDING ANY DIRECT,
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INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS. Lessee shall look solely
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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; provided that to the extent that such
rights are not assignable, Lessor shall, at Lessee's sole expense, take all
reasonable action to enforce any warranty on the Equipment.
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 OF REPRESENTATIONS
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WHATSOEVER WITH RESPECT TO THE INTELLECTUAL PROPERTY RIGHTS, INCLUDING ANY
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PATENT, COPYRIGHT AND TRADEMARK RIGHTS, OF ANY THIRD PARTY WITH RESPECT TO THE
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EQUIPMENT, WHETHER RELATING TO INFRINGEMENT OR OTHERWISE. Lessor shall, when
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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
manufacturer under any agreement for purchase of the Equipment. If notified
promptly in writing of any action brought against Lessee based on a
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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. 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.
3.3 Delivery; Installation; Return; Maintenance and Repair; Inspection.
Lessee shall be solely responsible, at its own expense, for (a) the delivery of
he 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 expected, 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 expected, 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 during regular
business hours, with reasonable notice, and in compliance with Lessee's
reasonable security procedures.
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
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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 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 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
Claims relating to the manufacture, selection, purchase, delivery, possession,
condition, use, operation, return or
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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 (a), (b) and (d)
below shall no 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. Notwithstanding anything to the contrary in this
Section 3.8, in the event of a merger, sale of substantially all of the assets
of Lessee or other reorganization involving Lessee, Lessor shall not withhold
its consent to the assignment of any Lease to the successor entity or purchaser
of such assets if each of the following conditions precedent is satisfied;
1. the successor entity as of the date of such assignment meets Lessor's
then current credit standards, as determined by Lessor in Lessor's
sole discretion:
2. Lessee gives Lessor at least thirty (30) days prior written notice of
such merger, sale of assets or other reorganization;
3. such merger, sale of assets or other reorganization does not adversely
affect the rights of Lessor under any Lease;
4. the corporation that results from such merger or other reorganization
or which purchases the assets in the case of a sale of assets (the
"Surviving Corporation") shall have executed and delivered to Lessor
an agreement in form and substance reasonably satisfactory to Lessor,
containing an assumption by Surviving Corporation of the due and
punctual performance and observance of each covenant and condition of
Lessee in this Agreement and any Lease (the "Lease Documents") and
making representations and warranties with respect to the Surviving
Corporation similar in scope and substance to the representations and
warranties made by Lessee in this Agreement and any Lease so
assigned.
5. the Surviving Corporation executes any precautionary financing
statements or amendments thereto reasonably requested by Lessor; and
6. immediately after giving effect of such merger, sale of assets or
other reorganization, no Event of Default or, event which with the
lapse of time or giving of notice or both, would result in an Event of
Default shall have occurred and be continuing; provided, however,
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Lessee remains liable (independent of its assignee) for each and every
one of its obligations under all Leases so assigned.
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
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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 time to time reasonably request and to the extent not publicly
available.
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 except as limited by any bankruptcy, insolvency,
reorganization or other similar laws of general application affecting the
enforcement of creditor or lessor rights.
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 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 60 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 under any other instrument
or agreement with Lessor or
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Cisco Systems, Inc. where such default materially adversely affects Lessee's
ability to perform under this Agreement or any Lease.
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 a11 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 of 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, 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
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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 statute or otherwise, and may be
exercised by Lessor from time to time concurrently or independently and as
often and in such order as Lessor may elect. Any failure or delay on the part
of Lessor in exercising any such right or remedy shall not operate as a waiver
thereof.
5.6 Notices. Any notice, request, demand, consent, approval or other
communication provided for or permitted in relation to any Lease shall be in
writing and shall be conclusively deemed to have been received by a party hereto
on the day it is delivered to such party at its address, or received by the
party at such facsimile number, as is set forth in such Lease (or at such other
addresses or fax numbers such party shall specify to the other party in
writing), or if sent by 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
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ANY OTHER APPLICABLE LAW OR STATUTE, WITH RESPECT TO A DEFAULT BY LESSOR
UNDER THIS AGREEMENT OR ANY LEASE. Each FMV Lease is intended by the parties as
a "finance lease" under the Code.
5.9 Severability. Should any provision of any Lease Document be or become
invalid, illegal, or unenforceable under applicable law, the other provisions of
such Lease Document shall not be affected and shall remain in full force and
effect.
5.10 Attorneys' Fees; Default Interest; Maximum Rates. Lessee shall
reimburse Lessor for all charges, costs, expenses and reasonable attorney's fees
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. 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
JURISDICTION OF THE STATE COURTS OF CALIFORNIA, AND THE FEDERAL COURTS SITTING
IN THE STATE OF CALIFORNIA, FOR THE RESOLUTION OF ANY DISPUTES UNDER ANY LEASE
DOCUMENT.
5.12 Survival. All obligations of Lessee to make payments to Lessor under
any Lease or to indemnify Lessor, including pursuant to Section 3.4 or 3.7
above, with respect to a Lease, and all rights of Lessor hereunder with respect
to a Lease, shall survive the termination of such Lease and the return of the
Equipment.
5.13 Security. To secure the payment and performance by Lessee of all
obligations under each Lease, Lessee hereby grants Lessor a security interest in
Lessee's right, title and interest, now existing and hereafter arising, in and
to, (a) all Equipment subject to such Lease, (b) all insurance, warranty, rental
and other claims and rights to payment and chattel paper arising out of such
Equipment, and (c) all books, records and proceeds relating to the foregoing.
5.14 Counterparts; Chattel Paper. Each Lease Document may be executed in
counterparts, and when so executed each counterpart shall be deemed to be an
original, and such counterparts together shall constitute one and the same
instrument. The original of each Schedule shall constitute chattel paper for
purposes of the Code. If there exist multiple originals of a Schedule, the one
marked "Lessor's Copy" or words of similar import, shall be the only chattel
paper.
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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.
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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 INTERLIANT, INC.
CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
By:/s/ Xxxx X. Xxxxxxx --------------------------
------------------------------- (Authorized Signature)
(Authorized Signature)
Xxxxxxx X. Xxxxxx CFO
Xxxx X. Xxxxxxx, CCM -----------------------------
Manager, Lease Services 9/5/00 (Name/Title)
----------------------------------
(Name/Title) By:
--------------------------
(Authorised Signature)
-----------------------------
(Name/Title)
-11-
