Exhibit 10.3
MASTER EQUIPMENT/SOFTWARE RENTAL AGREEMENT
MASTER EQUIPMENT/SOFTWARE RENTAL AGREEMENT ("Agreement") dated as of,
1997, between PSINet Inc., 000 Xxxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000
("Lessor") and EarthLink Network, Inc., 0000 Xxx Xxxx Xxxxx, Xxxxxxxx, XX
00000 ("Lessee").
1. LEASE
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Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor,
upon the terms and conditions specified in this Agreement and in one or more
Rental Schedules in the form of Exhibit A attached hereto (including Schedule
A of such Rental Schedule), the Equipment and Software as described in each
applicable Rental Schedule. Each Rental Schedule shall incorporate the terms
of this Agreement and shall constitute a separate lease of the Equipment and
Software (the term "Lease" shall refer collectively to the applicable Rental
Schedule and this Agreement). In the event of a conflict between the
provisions of this Agreement and the provisions of any Rental Schedule, the
provisions of the Rental Schedule shall prevail.
Equipment and Software selected or requested by Lessee must be approved
by Lessor prior to each Lease. Lessee acknowledges that its selection of
Software and Equipment is based solely upon its own judgment prior to having
requested Lessor to purchase or license the same for leasing to Lessee and
Lessee expressly disclaims any reliance on statements made by Lessor or its
agents regarding the Software and Equipment.
In return for Lessor paying the Software license fee and Equipment cost
to the vendor or vendors of such Software and Equipment (in each case the
"Vendor") so that the Lessee may acquire the right to use the Software and
the Equipment, Lessee shall pay all Lease payments required under each Lease
to Lessor, as well as comply with all other terms and conditions of each
Lease. Each Lease shall be binding upon Lessor and Lessee from the date of
acceptance and execution by Lessor at its office in Virginia.
Lessee acknowledges that Lessee obtains only a license to use the
software directly for the Vendor and no other ownership rights, and Lessee's
use of the Software shall be subject to the terms and conditions of the
license agreement from such Software Vendor (the "Software License
Agreement").
2. TERM
----
The term of each Lease of Equipment and Software shall commence on the
Commencement Date provided for in the applicable Rental Schedule and, unless
sooner terminated pursuant to the terms of such Lease, shall be for the number
of calendar months set forth in such Rental Schedule, plus the number of days
remaining in any partial calendar month
if the Commencement Date occurs on a day other than the first day of a month
(the "Lease Term").
3. RENTAL CHARGES AND TAXES
------------------------
Lessee shall pay to Lessor during the Lease Term, without notice or demand,
at the office of Lessor in Herndon, Virginia, or at such other place as Lessor
may designate, the amount specified as the Monthly Rental Charge ("Monthly
Rent") in the Rental Schedules plus applicable state and local sales or use
taxes. Lessee's obligation to pay shall begin on the Commencement Date. Monthly
Rent is due in advance on the first day of each month.
When the Commencement Date is not on the first day of a month, an Interim
Rental Payment, at the daily amount equal to the Monthly Rent times the number
of months per year divided by 360, from and including the Commencement Date to
the end of such month, shall be due and payable upon Lessee's receipt of an
invoice from Lessor.
LESSEE AGREES THAT TIME IS OF THE ESSENCE TO LESSOR IN LESSEE'S MAKING
PAYMENTS OF THE MONTHLY RENT AND THE INTERIM RENTAL PAYMENT, IF ANY, WHEN
SUCH PAYMENTS BECOME DUE.
4. SECURITY INTEREST
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Lessee hereby grants, assigns, pledges and conveys to Lessor a first
security interest in the Software, the Software License Agreement, all other
rights acquired by Lessee from the Software Vendor relating to the Software,
the Equipment and all other rights and warranties acquired by Lessee from the
Equipment Vendor, together with all options, accessories, replacements,
substitutions, additions, accessions, replacements, upgrades, new releases or
new versions of the Equipment and Software, as the case may be, and all
proceeds thereof, including insurance proceeds, intellectual property rights
and all general intangibles related thereto ("Collateral"), as security for
the payment and performance obligations of Lessee under any Lease.
5. LEASE NOT CANCELABLE; LESSEE'S OBLIGATIONS ABSOLUTE
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LESSEE'S OBLIGATION TO PAY ALL MONTHLY RENT (INCLUDING THE INTERIM RENTAL
PAYMENT) AND OTHER SUMS UNDER EACH LEASE, AND THE RIGHTS OF LESSOR IN AND TO
SUCH PAYMENTS, SHALL BE ABSOLUTE AND UNCONDITIONAL AND SHALL NOT BE SUBJECT
TO ANY ABATEMENT, DELAY, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM
INTERRUPTION, DEFERMENT OR RECOUPMENT FOR ANY REASON WHATSOEVER, INCLUDING
ANY FAILURE OF THE SOFTWARE OR EQUIPMENT. IF THE SOFTWARE OR EQUIPMENT IS
UNSATISFACTORY FOR ANY REASON, LESSEE
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SHALL MAKE ANY CLAIM SOLELY AGAINST THE SOFTWARE AND EQUIPMENT VENDOR, AS THE
CASE MAY BE, AND SHALL, NEVERTHELESS, PAY LESSOR ALL AMOUNTS PAYABLE UNDER
EACH LEASE.
6. TITLE
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(a) Software. No ownership, rights in the Software shall pass to the
Lessee by virtue of this Agreement. All upgrades, new releases or new
versions of the Software acquired by Lessee shall immediately and
automatically become subject to each applicable Lease.
(b) Equipment. The Equipment is and shall remain the sole and exclusive
property of Lessor. Lessee shall have no right, title or interest in the
Equipment, other than the Lessee's right to maintain possession and use of
the Equipment for the full Lease Term, conditioned upon Lessee's compliance
with the terms and conditions of each Lease. If requested by Lessor, Lessee
shall affix to or place on the Equipment plates or markings indicating
Lessor's ownership. If requested by Lessor, Lessee will obtain a waiver, in
recordable form, from all persons with a real property interest in the
premises wherein the Equipment may be located, waiving any claim with respect
thereto.
7. SELECTION AND USE OF SOFTWARE AND EQUIPMENT
-------------------------------------------
Lessee shall be responsible for the selection, use, and results obtained
from the Software and Equipment and acknowledges that Lessor is not a
developer of, dealer in, or licensor of, the Software and that Lessor is not
a manufacturer of or dealer in the Equipment, nor an agent of any such
Vendor. Lessee authorizes Lessor to insert in each Lease the identifying data
of the Software and Equipment.
8. ASSIGNMENT OF WARRANTIES
------------------------
Lessor assigns to Lessee, to the extent assignable, for the term of the
applicable Lease, any warranty applicable to the Software and Equipment, and
authorizes Lessee to obtain the customary service and support furnished by
the Software and Equipment Vendors at Lessee's expense.
9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES BY LESSOR
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LESSOR MAKES NO REPRESENTATION OR WARRANTY, DIRECT OR INDIRECT, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SOFTWARE (INCLUDING ALL UPGRADES, NEW RELEASES OR
NEW VERSIONS OF SUCH SOFTWARE AND RELATED DOCUMENTATION) AND EQUIPMENT,
INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY WITH RESPECT TO
INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY,
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DURABILITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE,
CONDITION, OR DESIGN, THE PURPOSES AND USES OF THE LESSEE, THE
CHARACTERIZATION OF EACH LEASE FOR TAX, ACCOUNTING OR OTHER PURPOSES,
COMPLIANCE OF THE EQUIPMENT WITH APPLICABLE GOVERNMENTAL REQUIREMENTS, OR
OTHERWISE. AS TO LESSOR, LESSEE RENTS THE SOFTWARE AND EQUIPMENT "AS IS".
LESSEE WAIVES ALL RIGHT TO MAKE ANY CLAIM AGAINST LESSOR FOR BREACH OF ANY
WARRANTY OF ANY KIND WHATSOEVER. LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY
LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY
BY ANY EQUIPMENT OR SOFTWARE SUBJECT TO ANY LEASE OR FOR THE USE OR
MAINTENANCE THEREOF, OR FOR THE FAILURE OF OPERATIONS THEREOF, OR FOR THE
REPAIRS, SERVICE, OR ADJUSTMENT THERETO, OR BY ANY DELAY OR FAILURE TO
PROVIDE ANY THEREOF, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF
OR FOR ANY LOSS OF BUSINESS OR ANY OTHER DAMAGE WHATSOEVER AND HOWSOEVER
CAUSED.
LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY LOSS, DAMAGE OR EXPENSE OF
ANY KIND CAUSED BY OR RELATED TO, DIRECTLY, INDIRECTLY OR CONSEQUENTIALLY,
THE SOFTWARE (INCLUDING ALL UPGRADES, NEW RELEASES OR NEW VERSIONS OF SUCH
SOFTWARE AND RELATED DOCUMENTATION) AND EQUIPMENT OR FOR ANY CONSEQUENTIAL
DAMAGES, ANY LOSS OF PROFITS OR SAVINGS, LOSS OF USE, OR ANY OTHER COMMERCIAL
LOSS REGARDLESS OF WHETHER LICENSOR WAS ADVISED, HAD REASON TO KNOW, OR IN
FACT KNEW OF THE POSSIBILITY THEREOF.
10. POSSESSION, USE AND OPERATION OF SOFTWARE AND EQUIPMENT
-------------------------------------------------------
(a) DELIVERY AND INSTALLATION. Lessee shall arrange and pay for the
delivery and installation of the Software and Equipment.
(b) USE AND MAINTENANCE. Lessee shall use the Software and Equipment in
the manner for which they were designed and intended, solely for Lessee's
business purposes, in accordance with all Vendor manuals, instructions and
documentation, including any Software License Agreement, and in compliance
with all applicable laws, regulations and orders. Lessee, at Lessee's own
cost and expense, shall keep the Equipment in good repair, condition and
working order, ordinary wear and tear excepted, and shall furnish all parts,
mechanisms, devices and servicing required therefor and necessary to comply
with all applicable health and safety standards. During the term of each
applicable Lease, Lessee shall maintain in force a maintenance agreement with
respect to the Equipment with the Vendor thereof or such other party as may
be acceptable to Lessor, and the Equipment, if returned to Lessor by Lessee
at the
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expiration of the Lease Term, shall qualify for such maintenance program
without additional expense.
(c) ALTERATIONS AND ATTACHMENTS. All replacement parts, repairs,
modifications, revisions, upgrades, as the case may be, at any time made to
or upon the Equipment or Software shall be made only in compliance with
applicable law, provided not in violation of any Vendor warranty or Software
License Agreement, as the case may be, and shall become the property of
Lessor and shall be free and clear of all liens, encumbrances and rights of
others. With respect to the Software, any modifications, unless consented to
by the Software Vendor, shall only be made to a copy of such Software and not
to the Original Software delivered to Lessee. Lessee will not, without the
prior written consent of Lessor, affix or install any accessory, equipment or
device on any Equipment if such addition will impair the originally intended
function or use of such Equipment and Lessee shall not attach or incorporate
the Equipment to, with or in any other property in such a manner that the
Equipment may be deemed to have become an accessory to or part of such other
property. Upon return to Lessor of the Equipment as to which such
alterations, modifications or additions have been made, if Lessee does not
exercise its Purchase Option pursuant to Section 12(b), Lessee shall, at
Lessor's request, remove the same and restore the Equipment to its original
condition, reasonable wear and tear only being excepted, and, if not so
removed, or cannot be readily removed without damaging the function, use or
economic value of the Equipment title thereto shall automatically vest in
Lessor.
(d) ASSIGNMENT BY LESSEE. Lessee shall keep the Equipment free and clear
from all liens, charges, encumbrances, legal process and claims. Lessee shall
not assign, sublet, hypothecate, sell, transfer or part with possession of
the Equipment or Software or any interest in any Lease, and any attempt to do
so shall be null and void and shall constitute a default hereunder. Lessee
shall not move the Equipment or Software from the location noted in the
Rental Schedule without the prior written consent of the Lessor. Lessee
agrees not to waive its right to use and possess the Equipment and Software
in favor of any party other than Lessor and further agrees not to abandon the
Equipment or Software to any party other than the Lessor. So long as Lessee
faithfully performs and meets each and every term and condition to be
performed or met by Lessee under each Lease, Lessee's quiet and peaceful
possession and use of the Equipment will not be disturbed by Lessor or anyone
claiming by, through or on behalf of Lessor.
(e) INSPECTION. Lessor shall have the right from time to time during
normal business hours to enter upon Lessee's premises or elsewhere for the
purpose of confirming the existence, condition and proper maintenance of the
Equipment and Software or for any other reasonable business purpose.
11. TAXES AND FEES
--------------
Lessee shall pay when due, or reimburse (including taxes on any
reimbursement) and indemnify and hold Lessor harmless from and against, all
taxes, fees, assessments or other
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charges of any nature whatsoever (except for any taxes based upon Lessor's
net income, unless such net income taxes are in substitution for or release
Lessee from any taxes which Lessee would otherwise be obligated to pay under
this Section), which may be imposed by any taxing jurisdiction upon or
relating to the Software, the Equipment, any Lease or the consummation of the
transactions contemplated in any Lease. If Lessee determines that any item of
Software or Equipment or any Lease or the consummation of the transactions
contemplated in any Lease is not taxable, Lessee shall, prior to the date of
commencement of any Lease, provide Lessor with written notice of such
determination and the basis for such determination. Should any taxing
jurisdiction challenge such determination, Lessee shall indemnify Lessor for
all costs (including interest, penalties and attorneys' fees) associated with
Lessee's determination. Lessee shall file personal property tax returns and
pay any taxes which may be due rather than waiting for Lessor to file and pay
such taxes and then invoice Lessee for reimbursement.
12. END OF LEASE
------------
At the expiration of each Lease, Lessee shall have the following options:
(a) Return the Software and Equipment of each applicable Lease to the
Lessor. At Lessee's expense, Lessee shall cause the Software and
Equipment to be removed, disassembled, and placed in the same
condition as when delivered to Lessee (reasonable wear and tear
excepted) and properly crate the Equipment and Software for shipment
and deliver to a common carrier designated by Lessor. Lessee will
ship the Equipment and Software, F.O.B. destination, to any address
within the continental United States specified in writing by Lessor.
All additions, alterations and repairs made or placed upon any of
the Software and Equipment, and not removed by Lessee as required
under Section 10(c), shall become part of the Software and Equipment
and shall be the property of the Lessor.
(b) Purchase the Software and Equipment subject to each such Lease from
the Lessor (the "Purchase Option"), in "as is, where is" condition,
for 20% of the original Software and Equipment value as set forth on
each applicable Renal Schedule (the "Original Value").
If, within 15 days of the expiration of any Lease, the Software and Equipment
are not returned and Lessee has not exercised its Purchase Option, the Lessee
will pay to the Lessor one Monthly Rent payment for each complete month or
part thereof until the Software and Equipment are returned to Lessor, or the
Purchase Option is exercised.
13. EARLY TERMINATION OPTION
------------------------
Provided an Event of Default has not occurred, upon no less than 30 days'
and no more than 90 days' prior irrevocable written notice to Lessor, Lessee
may terminate any Lease upon payment to Lessor of an amount equal to the sum
of (1) the total Monthly Rent and other sums due and unpaid under such Lease
at the date of payment, (2) the Stipulated Loss Value set forth
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in Exhibit B as of the date of payment and (3) 20% of the Original Value for
the Equipment and Software subject to such Lease.
In addition Lessee shall, pursuant to Lessor's instructions and at
Lessee's sole expense, cause the Software and Equipment to be removed,
disassembled, and placed in the same condition as when delivered to Lessee
(reasonable wear and tear excepted) and properly crate the Equipment and
Software for shipment and deliver to a common carrier designated by Lessor.
Lessee will ship the Equipment and Software, F.O.B. destination, to any
address within the continental United States specified in writing by Lessor.
All additions, alterations and repairs made or placed upon any of the
Software and Equipment, and not removed by Lessee as required under Section
10(c), shall become part of the Software and Equipment and shall be the
property of the Lessor.
14. RISK OF LOSS
------------
Lessee shall bear the entire risk of loss, theft, destruction and damage
to any Software and Equipment ("Event of Loss") after the Commencement Date
from any and every cause whatsoever, whether or not insured, until the
Software and Equipment is returned to Lessor. If an Event of Loss shall
occur, Lessee shall immediately notify Lessor in writing of such fact and of
all details with respect thereto and, at the option of Lessor, shall
promptly, at Lessee's sole cost:
(a) place the Software and Equipment in good condition, repair and
working order; or
(b) replace the Software and Equipment with like Software and Equipment
in good condition, repair and working order and grant to Lessor
clear title to such Software and Equipment whereupon such property
shall be subject to the applicable Lease and be deemed the Software,
Equipment and Collateral for purposes of such Lease.
Lessee appoints Lessor as Lessee's attorney-in-fact to make claim for,
receive payment of, and execute and endorse all documents, checks or drafts
issued with respect to such loss or damage under any insurance policy
relating thereto.
If and when Lessor shall have received any insurance proceeds on account
of an Event of Loss, and if Lessor, in its reasonable judgment, shall be
satisfied that Lessee has properly performed the obligations undertaken by
this Section 14, Lessor, upon receipt of invoice therefor, shall pay over to
Lessee out of such insurance proceeds the actual amounts expended by Lessee
under this Section 14 (a) or (b).
15. INSURANCE
---------
Lessee shall, at its own expense, obtain on the Software and Equipment
all risk property damage insurance and public liability insurance, both
personal injury and property damage, in
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such amounts, against such risks, in such form and with such insurers as
shall be reasonably satisfactory to Lessor. The amount of property damage
insurance on the Software and Equipment shall not be less than the greater of
the replacement cost or the Stipulated Loss Value of the Software and
Equipment. Each insurance policy shall name Lessee as an insured and Lessor
and its successors and assigns as an additional insured and loss payee and
shall contain a clause requiring the insurer to give Lessor, its successors
and assigns at least 30 days' prior written notice of any alteration or
cancellation of such policies. Lessee shall furnish to Lessor a certificate
of insurance or other evidence satisfactory to Lessor that such insurance
coverage is in effect, provided, however, that Lessor shall be under no duty
either to ascertain the existence of or to examine such insurance or to
advise Lessee in the event such insurance shall not comply with the
requirements hereof.
16. GENERAL INDEMNITY
-----------------
Lessee shall indemnify and hold (and if requested by Lessor, defend)
Lessor, any assignee and any secured party harmless from and against all
claims, actions, suits or proceedings of any kind (including negligence, tort
and strict liability) (collectively, "Claims"), including all costs,
including reasonable attorney's fees and expenses, damages and liabilities
arising out of, connected with, resulting from or related to any Lease,
including, without limitation, the manufacture, ownership, selection,
possession, leasing, renting, purchase, operation, control, use, maintenance,
delivery, return or other disposition of the Software, Equipment and/or the
Collateral (including but not limited to latent and other defects, whether or
note discoverable by Lessor or Lessee, and any claim for patent, trademark,
copyright, software or other intellectual property infringement) or by
operation of law, excluding any Claims which result from the gross negligence
or willful misconduct of Lessor. If any Claim is made against Lessee or
Lessor, the party receiving notice of such Claim shall promptly notify the
other, but the failure of such person receiving notice so to notify the other
shall not relieve the Lessee of any obligation hereunder.
The provisions and the obligations of Lessee under this Section 16 shall
survive the expiration or termination of this Agreement and/or any Lease, and
are expressly made for the benefit of and shall be enforceable by Lessor, its
successors and assigns.
17. REPRESENTATIONS AND WARRANTIES OF LESSEE
----------------------------------------
Lessee represents, warrants and covenants, with the execution of this
Agreement and each Lease that, with respect to this Agreement and/or each
Lease:
(a) the execution, delivery and performance of this Agreement and each
Lease has been and shall be, as the case may be, duly authorized by all
necessary corporate action and shall constitute legal, valid and binding
agreements of Lessee enforceable in accordance with their respective terms;
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(b) all financial statements furnished to Lessor are and shall be true and
correct in all material respects, prepared in accordance with generally
accepted accounting principles consistently applied and Lessee shall
furnish Lessor with its quarterly and annual independently reviewed
financial statements and such other financial information as Lessor may
reasonably request;
(c) the Equipment is personal property and will not become a fixture under
applicable law;
(d) Lessee shall be the licensee and registered user of the Software under
the Software License Agreement; and
(e) no approval, consent or withholding of objection or other
authorization of or by any court, administrative agency, other
governmental authority or other entity is required, except such
consents, approvals or other authorizations which have been or shall
be, as the case may be, duly obtained and in full force and effect
( copies of which have been furnished to Lessor), in connection with
the execution, delivery and performance of this Agreement and each
Lease by Lessee and Lessee's possession and use of the Equipment and
Software.
18. ASSIGNMENT/TRANSFER BY LESSOR
-----------------------------
Lessor may sell or otherwise transfer its interest in any Lease and the
Collateral in whole or in part. Lessee consents to such transfer and, if
Lessee is given written notice of any transfer, it shall promptly acknowledge
receipt in writing. Lessee acknowledges that any assignment by Lessor will
not materially change the duty of the Lessee. Lessee shall not assert against
any transferee any set-off, defense or counterclaim that Lessee may have
against Lessor (including any defense arising out of the insolvency or
bankruptcy of Lessor) or any other person and upon notice from Lessor shall
pay the Monthly Rent and any other amounts due under any Lease as directed.
Lessor's transferee shall be entitled to enforce the rights so
transferred, but shall be under no liability to Lessee to perform any of the
obligations of Lessor, the sole remedy of Lessee being against Lessor. Lessor
shall not be relieved of its obligations hereunder, except as specifically
provided.
19. LATE PAYMENTS
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If any amount to be paid to Lessor is not received within 5 days after
its due date, Lessee shall pay Lessor on demand a late charge of 1.5% (or the
maximum allowed by law, whichever is less) of such payment for each month, or
any part thereof, that the payment is not received.
20. EVENTS OF DEFAULT; NO WAIVER
----------------------------
Lessee shall be in default under this Agreement and any and all Leases
upon the occurrence of any of the following events ("Events of Default"):
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(a) Lessee fails to pay any Monthly Rent or other amount required to be
paid under this Agreement or under any Rental Schedule within 5 days after
the due date;
(b) Lessee breaches any of its insurance obligations under the Agreement;
(c) Lessee fails to perform any other provisions under any Lease, and
such failure shall continue unremedied for a period of 10 days after written
notice thereof from Lessor;
(d) Any financial reports delivered to Lessor hereunder and any
representation or warranty made by Lessee in this Agreement, any Lease,
related documents, or pursuant hereto shall at any time prove to be false or
misleading;
(e) Lessee becomes insolvent or ceases to do business as a going concern;
(f) A petition is filed by Lessee under any bankruptcy or insolvency laws;
(g) A petition is filed against Lessee under any bankruptcy or insolvency
laws and Lessee fails to obtain a dismissal of such petition within sixty
(60) days;
(h) If applicable, Lessee makes a bulk transfer subject to the provisions
of the Uniform Commercial Code;
(I) Lessee shall default under any other agreement with Lessor or its
successors or assigns;
(j) Lessee suffers an adverse material change in its financial condition
from the Commencement Date and Lessor deems itself or any of its Collateral
to be insecure; or
(k) Lessee shall be in breach of or in default in the payment or
performance of any obligation owing to any bank, lender, lessor or financial
institution, howsoever arising, present or future, contracted for or
acquired, and whether joint, several, absolute, contingent, secured,
unsecured, matured or unmatured.
Any failure of Lessor to require strict performance by Lessee or any
waiver by Lessor of any provision in the Lease shall not be construed as a
consent or waiver of any other breach of the same or of any other provision.
21. REMEDIES
--------
Upon the occurrence of an Event of Default, Lessor may, in its sole
discretion, do any one or more of the following:
(a) terminate any or all of the Leases and Lessee's rights thereunder;
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(b) proceed by appropriate court action or actions, either at law or
equity, to enforce performance by Lessee of the applicable terms of any or
all of the Leases or to recover damages for the breach thereof;
(c) recover from Lessee an amount equal to the sum of (i) all accrued and
unpaid amounts under any or all of the Leases and the present value of all
future Monthly Rent to be paid over the terms of each Lease discounted at a
rate equal to five percent (5%), (ii) as liquidated damages for loss of a
bargain and not as a penalty, the Stipulated Loss Value which would have been
due had the Lessee exercised its Early Termination Option pursuant to Section
13 hereof, and (iii) any loss or damage to the Lessor's residual interest in
the Equipment caused by such Event of Default;
(d) personally or by its agents take immediate possession of any or all
of the Collateral from Lessee and, for such purpose, enter upon Lessee's
premises where any of the Collateral is located with or without notice or
process of law and free from all claims by Lessee;
(e) require the Lessee to, and the Lessee shall, assemble the Collateral
and deliver the Collateral in accordance with the terms of Section 13 and,
for each day that Lessee fails to deliver any such Collateral, Lessor may
demand payment of an amount equal to the Interim Rental Payment;
(f) demand Lessee to immediately cease using the Equipment, Software and
any other Collateral.
With respect to Collateral returned to or repossessed by Lessor, if
Lessor has not terminated the Leases, Lessor will, in such manner and upon
such terms as Lessor may determine in its sole reasonable discretion, either
sell such Collateral at one or more public or private sales or re-lease the
Collateral. The proceeds of sale or re-lease shall be applied in the
following order or priority: (i) to pay all Lessor's fees, costs and expenses
(including attorneys' fees, costs and expenses) arising from Lessee's default
and the exercise of Lessor's remedies hereunder, including costs of
repossession, storage, repairs, reconditioning and sale or re-leasing of any
Collateral; (ii) to the extent not previously paid by Lessee to Lessor, to
pay Lessor its liquidated damages hereunder and all other sums then remaining
unpaid hereunder and under any Lease; and (iii) any surplus shall be retained
by Lessor. In the event the proceeds of sale or re-lease are less than the
sum of the amounts payable under (i) and (ii) above, Lessee shall forthwith
pay Lessor such deficiency. The proceeds of a re-lease shall be discounted to
their present value at the rate of 3%. Notwithstanding the foregoing, Lessor
may pursue any other remedy available at law or equity, including seeking
damages, specific performance and injunctive relief.
All such rights and remedies shall be cumulative and may be enforced
concurrently or individually from time to time. Except as set forth expressly
in this Section and to the extent permitted by applicable law, Lessee waives
any rights now or hereafter conferred by statute or otherwise which may
require Lessor to sell, lease or use the Collateral in mitigation of Lessor's
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damages or which may otherwise limit or modify any of Lessor's rights or
remedies and Lessee waives any rights conferred upon Lessee by UCC Sections
2A-508 through 2A-522.
No express or implied waiver by Lessor of any default shall in any way
be, or be construed to be, a continuing waiver or a waiver of any future or
subsequent default.
22. BANKRUPTCY OF SOFTWARE LICENSORS
--------------------------------
The bankruptcy of the Software or Equipment Vendor, as the case may be,
shall not be a valid cause for Lessee to terminate any Lease payments due to
Lessor under any Lease, including without limitation the Monthly Rent due
under any Lease. Lessee shall take all action necessary to protect Lessee's
rights to use the Software under Section 365 of the Bankruptcy Code. Lessee
shall elect to retain its rights under the Bankruptcy Code to use the
Software, and to the extent the Software License Agreement grants Lessee
access to the source code, Lessee shall make written request under the
Bankruptcy Code to the Bankruptcy Trustee to obtain the source code. Lessee
shall take all such other reasonable action to protect its rights to use the
Software. In the event Lessee fails to take the action specified above,
Lessee appoints Lessor its Attorney-in-fact, to secure, at Lessor's sole
discretion and at Lessee's cost, the right to use the Software for Lessee.
23. MISCELLANEOUS
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(a) NOTICES. Notices hereunder shall be deemed given when delivered
personally, the next business day after delivered to a recognized overnight
delivery service or five (5) days after sent by certified or registered mail,
return receipt requested, to Lessor and Lessee at their respective addresses
set forth at the head of this Agreement. Any party hereto may from time to
time by written notice to the other change the address to which notices are
to be sent to such party.
(b) ENTIRE AGREEMENT. This Agreement and each Lease constitution the
entire agreement between the parties with respect to the Equipment and
Software, superseding all proposals or prior agreements, oral or written, and
all other communications between the parties relating to the subject matter.
(c) GOVERNING LAW. This Agreement and each Lease shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia.
(d) SEVERABILITY. If any provision shall be held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions
shall not in any way be affected or impaired.
(e) FURTHER DOCUMENTS. Lessee shall provide Lessor with such documents as
Lessor may reasonably request, including documents relating to preserving the
security and Collateral of Lessor, or financing statements under the Uniform
Commercial Code. To the extent
12
permitted by law, Lessor may execute Uniform Commercial Code financing
statements for and on behalf of Lessee for the purpose of perfecting Lessor's
interest in the Collateral.
(f) COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one instrument.
(g) SURVIVAL OF OBLIGATIONS. All obligations of Lessee to make payments
to Lessor under any Lease or to indemnify Lessor as provided hereunder shall
survive the expiration or other termination of this Agreement and any Lease.
(h) SUCCESSORS. Each Lease shall be binding upon and inure to the benefit
of Lessor and Lessee and their respective successors and assigns, unless
otherwise expressly provided herein.
(i) DISPUTES. THE PARTIES CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF
THE STATE AND FEDERAL COURTS IN VIRGINIA IN CONNECTION WITH ANY DISPUTE UNDER
THIS AGREEMENT AND ANY LEASE, AND LESSEE WAIVES ITS RIGHT TO TRIAL BY JURY.
(j) REIMBURSEMENT OF LEGAL COSTS. Lessee shall reimburse and pay to
Lessor for the legal fees and expenses incurred by Lessor in connection with
the preparation and negotiation of this Agreement and the consummation of
transactions contemplated hereunder and under any Lease.
PSINet Inc./ EarthLink Network, Inc.
LESSOR LESSEE
By: /s/ illegible By: /s/ illegible
------------------- ---------------------
Title: SVP/CFO Title: Pres & Sec
------------------- ---------------------
Date: 9/17/97 Date:
------------------- ---------------------
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Exhibit 10.3 The following Exhibits and Schedules have been omitted,
which the Company agrees to furnish supplementally to the
Commission upon request:
Exhibit A: Rental Schedule No. 1
Exhibit B: Stipulated Loss Value Schedule to Rental Schedule
Exhibit C: Certificate of Acceptance
Schedule A Description of equipment
Schedule 26 Certificate of Installation
Schedule 27 Certificate of Installation
Schedule 28 Certificate of Installation
Schedule 29 Certificate of Installation
Schedule 30 Certificate of Installation
