1
[CISCO SYSTEMS CAPITAL LETTERHEAD]
Master Agreement No. 1094
MASTER AGREEMENT TO LEASE EQUIPMENT
THIS MASTER AGREEMENT TO LEASE EQUIPMENT (this "Agreement") is entered into as
of January 13, 1998 by and between CISCO SYSTEMS CAPITAL CORPORATION ("Lessor")
having its principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 and ABOVENET COMMUNICATIONS, INC., a California corporation
("Lessee"), having a principal place of business at 00 X. Xxx Xxxxxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, XX 00000. In consideration of the covenants set forth
herein, Lessor and Lessee have agreed as follows:
I. THE LEASE
1.1 LEASE OF EQUIPMENT. In accordance with the terms and conditions of this
Agreement, Lessor shall lease to Lessee, and Lessee shall lease from
Lessor, the units of personal property (individually, a "Unit," and,
collectively, the "Equipment") described in the lease schedule(s) (each,
a "Lease") to be entered into from time to time into which this Agreement
is incorporated. Each Lease shall constitute a separate, distinct, and
independent lease and contractual obligation of Lessee. Lessor or its
assignee shall at all times retain the full legal title to the Equipment,
it being expressly agreed by both parties that each Lease is an agreement
of lease only. Notwithstanding any provision to the contrary contained in
this Agreement, Lessee shall be deemed to accept the Equipment on the
Commencement Date (as specified in each Lease).
1.2 TERM OF LEASE. The original term (the "Original Term") of each Unit shall
commence on the Commencement Date and, subject to Sections 3.3 and 3.5
below, shall terminate on the date specified in such Lease.
Notwithstanding the foregoing, the Original Term for each Unit shall
automatically extend for successive 30-day periods after its expiration
unless either party gives the other party written notice, at least 90
days prior to the expiration of the Original Term or the then extended
term, as the case may be, of its intent not to so extend the applicable
Lease. Except as specifically provided in this Section 1.2, no Lease may
be terminated by Lessor or Lessee, for any reason whatsoever, prior to
the end of the Original Term or any extended term.
1.3 RENTAL PAYMENTS. Lessee shall pay Lessor rent ("Rent") for each Unit in
the amounts and at the times specified in the Lease. The Lease Term for
each Unit shall commence on the Commencement Date and shall continue for
the period specified in the Lease, [unless otherwise extended pursuant to
Section __ below]. The Lease Term as to any Unit may not be terminated by
Lessee unless otherwise expressly provided in the Lease. All rental and
other amounts payable by Lessee to Lessor hereunder shall be paid to
Lessor at the address specified above, or at such other place as Lessor
may designate in writing to Lessee from time to time.
1.4 RETURN OF EQUIPMENT. Upon expiration of the Original Term of a Unit,
Lessee shall immediately return such Unit to Lessor as provided in
Section 3.3 below. Except as provided in Section 1.2 above, should Lessee
not return any Unit at the end of its Original Term, Lessee shall
continue to pay Rent to Lessor with respect to such Unit in the sum and
on the due dates set out in the applicable Lease, as a month-to-month
lease, until such Unit is returned by Lessee. If Lessee fails to return
any of the Equipment upon demand therefor by Lessor, Lessee shall pay
Lessor, as the measure of Lessor's damages, the Casualty Value (as
defined in the applicable Lease) of such Equipment.
II. DISCLAIMERS AND WARRANTIES; INTELLECTUAL PROPERTY
2.1 DISCLAIMERS; WARRANTIES. Lessee represents and acknowledges that each
Unit is of a size, design, capacity and manufacture selected by it, and
that it is satisfied that each Unit is suitable for its purposes. LESSOR
SUPPLIES THE EQUIPMENT AS IS, AND, NOT BEING THE MANUFACTURER OF THE
EQUIPMENT, THE MANUFACTURER'S AGENT OR THE SELLER'S AGENT, MAKES NO
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, DESIGN OR CONDITION
OF THE EQUIPMENT, LESSOR SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE
RESULTING FROM THE INSTALLATION, OPERATION OR OTHER USE, OR
DEINSTALLATION OF THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY
DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS. Lessee
shall look solely to the manufacturer or the supplier of Equipment for
correction of any problems that may arise with respect thereto, and all
warranties made by the manufacturer or such supplier are, to the degree
possible, hereby assigned to Lessee for the term of the applicable Lease.
To the extent any such warranty requires performance of any kind by the
beneficiary of the warranty, Lessee shall perform in accordance
therewith.
2.2 INTELLECTUAL PROPERTY. Except as otherwise expressly provided in each
Lease, LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH
RESPECT TO THE INTELLECTUAL PROPERTY RIGHTS, INCLUDING, WITHOUT
LIMITATION, ANY PATENT, COPYRIGHT AND TRADEMARK RIGHTS, OF ANY THIRD
PARTY WITH RESPECT TO THE EQUIPMENT, WHETHER RELATING TO INFRINGEMENT OR
OTHERWISE. Lessor shall, at Lessee's cost and expense, exercise, when
requested by Lessee, rights of indemnification, if any, for patent,
copyright or other intellectual property infringement obtained from the
manufacturer under any agreement for purchase of the Equipment. If
notified promptly in writing of any action brought against Lessee based
on a claim that the Equipment infringes a United States patent, copyright
or other intellectual property right, Lessor shall promptly notify the
manufacturer thereof for purposes of exercising, for the benefit of
Lessee, Lessor's rights with respect to such claim under any such
agreement.
III. COVENANTS OF LESSEE
3.1 PAYMENTS UNCONDITIONAL; TAX BENEFITS; ACCEPTANCE. EACH LEASE SHALL BE A
NET LEASE, AND LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER SUMS
THEREUNDER, AND THE RIGHTS OF LESSOR IN AND TO SUCH PAYMENTS, SHALL BE
ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT,
REDUCTION, SETOFF, DEFENSE, COUNTERCLAIM, INTERRUPTION, DEFERMENT OR
RECOUPMENT, FOR ANY REASON WHATSOEVER. It is the intent of Lessor, and an
inducement to Lessor, to enter into each Lease, to claim all available
tax benefits of ownership with respect to the Equipment subject thereto.
Lessee acknowledges and represents that (a) no right, title or interest
in such Equipment has been or is intended to be passed to Lessee, other
than the right to maintain possession of and use of such Equipment for
the Original Term of such Lease, conditioned on Lessee's performance of
the terms and conditions of such Lease, (b) Lessee has not taken and will
not, at any time during the Original Term of such Lease, take any action
which could cause Lessor to lose any tax benefits of ownership, and (c)
the Casualty Value of each Unit (as defined in the applicable Lease)
includes an amount which provides for Lessor's recovery of the loss of
such tax benefits. Lessee's acceptance of the Equipment subject to a
Lease shall be conclusively and irrevocably evidenced by Lessee executing
1
2
an Acceptance Certificate with respect to such Equipment, and,
upon acceptance, such Lease shall be noncancellable for its
Original Term unless otherwise agreed to in writing by Lessor.
Any nonpayment of Rent or other amounts payable under any Lease
shall result in Lessee's obligation to promptly pay Lessor as
additional Rent on such overdue payment, for the period of time
during which it is overdue (without regard to any grace period),
interest at a rate equal to the lesser of (a) 14% per annum, or
(b) the maximum rate of interest permitted by law.
3.2 USE OF EQUIPMENT. Lessee shall use the Equipment solely in the
conduct of its business, in a manner and for the use contemplated
by the manufacturer thereof, and in compliance with all laws,
rules and regulations of every governmental authority having
jurisdiction over the Equipment or Lessee and with the
provisions of all policies of insurance carried by Lessee
pursuant to Section 3.6 below; provided, however, Lessee shall
have the right to allow third parties, under Lessee's
supervision, to use the Equipment, so long as Lessee shall retain
uninterrupted possession and control of the Equipment. Lessee
shall pay all costs, expenses, fees and charges incurred in
connection with the use and operation of the Equipment.
3.3 DELIVERY; INSTALLATION; RETURN; MAINTENANCE AND REPAIR;
INSPECTION. Lessee shall be solely responsible, at its own
expense, for (a) the delivery of the Equipment to Lessee, (b) the
packing, rigging and delivery of the Equipment back to Lessor,
upon expiration of the Original Term, in good repair, condition
and working order, ordinary wear and tear excepted, at the
location(s) within the continental United States specified by
Lessor, and (c) the installation, de-installation, maintenance
and repair of the Equipment. During the term of the applicable
Lease, Lessee shall ensure that each Unit is covered by a
maintenance agreement, to the extent available, with the
manufacturer of such Unit or such other party, reasonably
acceptable to Lessor. Lessee shall, at its expense, keep the
Equipment in good repair, condition and working order, ordinary
wear and tear excepted, and, at the expiration of the Original
Term, or any renewal term, with respect to any of the Equipment,
have such Equipment inspected and certified acceptable for
maintenance service by the manufacturer. In the event any of the
Equipment, upon its return to Lessor, is not in good repair,
condition and working order, ordinary wear and tear excepted,
Lessee shall be obligated to pay Lessor for the out-of-pocket
expenses Lessor incurs in bringing such Equipment up to such
status, but not in excess of the Casualty Value (as defined in
the applicable Lease) for such Equipment, promptly after its
receipt of an invoice for such expenses. Lessor shall be entitled
to inspect the Equipment at Lessee's location at reasonable times.
3.4 TAXES. Lessee shall be obligated to pay, and hereby indemnifies
Lessor and its successors and assigns against, and holds each of
them harmless from, all license fees, assessments, and sales,
use, property, excise and other taxes and charges, other than
those measured by Lessor's net income, now or hereafter imposed
by any governmental body or agency upon or with respect to any of
the Equipment, or the possession, ownership, use or operation
thereof, or any Lease or the consummation of the transactions
contemplated in any Lease or this Agreement. Notwithstanding the
foregoing, Lessor shall file all required personal property tax
returns, and shall pay all personal property taxes payable, with
respect to the Equipment. Lessee shall pay to Lessor, as
additional rental, the amount of all such personal property taxes
within 15 days of its receipt of an invoice for such taxes.
3.5 LOSS OF EQUIPMENT. Lessee shall bear the entire risk of the
Equipment being lost, destroyed or otherwise rendered permanently
unfit or unavailable for use from any cause whatsoever (an "Event
of Loss") after it has been delivered to a common carrier for
shipment to Lessee. If an Event of Loss shall occur with respect
to any Unit, Lessee shall promptly and fully notify Lessor
thereof in writing. On the rental payment date following Lessor's
receipt of such notice, Lessee shall pay to Lessor an amount
equal to the rental payment or payments due and payable with
respect to such Unit on or prior to such date, plus a sum equal
to the Casualty Value of such Unit as of the date of such
payment, as set forth in such Lease. Upon the making of such
payment by Lessee regarding any Unit, the rental for such Unit
shall cease to accrue, the term of this Lease as to such Unit
shall terminate and (except in the case of loss, theft or
complete destruction) Lessor shall be entitled to recover
possession of such Unit in accordance with the provisions of
Section 3.3 above. Provided that Lessor has received the Casualty
Value for any Unit, Lessee shall be entitled to the proceeds of
any recovery in respect of such Unit from insurance or otherwise.
3.6 INSURANCE. Lessee shall obtain and maintain for the entire term
of each Lease, at its own expense, property damage and liability
insurance and insurance against loss or damage to the Equipment
subject to such Lease including, without limitation, loss by fire
(including so-called extended coverage), theft and such other
risks of loss as are normally maintained on equipment of the type
leased hereunder by company's carrying on the business in which
Lessee is engaged, in such amounts, in such form and with such
insurers as shall be satisfactory to Lessor. Each insurance
policy will name Lessee as insured and Lessor as an additional
insured and loss payee thereof as Lessor's interests may appear,
and shall provide that it may not be canceled or altered without
at least 30 days prior written notice thereof being given to
Lessor or its successors and assigns.
3.7 INDEMNITY. Except with respect to the gross negligence or willful
misconduct of Lessor, Lessee hereby indemnifies, protects,
defends and holds harmless Lessor and its successors and assigns,
from and against any and all claims, demands, actions, suits, and
proceedings, losses, costs, expenses, damages and liabilities,
including, without limitation, reasonable attorneys' fees and
costs (collectively, "Claims"), arising out of, connected with,
or resulting from this Agreement, any Lease or any of the
Equipment, including, without limitation, the manufacture,
selection, purchase, delivery, possession, condition, use,
operation, or return of the Equipment. Each of the parties shall
give the other prompt written notice of any Claim of which it
becomes aware. The provisions of this Section 3.7 shall survive
the expiration or termination of this Agreement or any Lease.
3.8 PROHIBITIONS RELATED TO EQUIPMENT. Without the prior written
consent of Lessor, which consent as it pertains to subsections
(a) and (c) below shall not be unreasonably withheld, Lessee
shall not: (a) sublease any of the Equipment (provided that
Lessee may, without the prior written consent of Lessor, permit
any Affiliate (defined below) of Lessee to use any of the
Equipment in the ordinary course of its business); (b) create or
incur, or permit to exist, any lien or encumbrance with respect
to any of the Equipment, or any part thereof; (c) move any of the
Equipment from the location at which it is first installed; or
(d) permit any of the Equipment to be moved outside the
continental limits of the United States. For purposes of this
Agreement, the term "Affiliate" shall mean (i) any corporation
which controls, is controlled by, or under common control with
Lessee, (ii) any corporation resulting from the merger or
consolidation of Lessee, or (iii) any entity which acquires all
of the assets of Lessee as a going concern. For purposes of this
Section 3.8, the term "control" shall mean the power to direct
the management of the relevant entity.
3.9 IDENTIFICATION. Lessee shall place and maintain permanent
markings provided by Lessor on each Unit evidencing ownership,
security and other interests therein, as specified from time to
time by Lessor. Lessee shall not place or permit to be placed on
any Unit any other markings that might indicate any other
ownership or security interest in such Unit. Any markings on any
Unit not made at Lessor's request shall be removed by Lessee, at
Lessee's sole cost and expense, prior to the return of such Unit
in accordance with Section 3.3.
3.10 ALTERATIONS OR MODIFICATIONS. Lessee shall not make any
additions, attachments, alterations or improvements to the
Equipment without the prior written consent of Lessor. At any
time during the Original Term of a Lease, there may be added to
such Lease additional Units of the same type as are rented
thereunder for a term equal to the remaining portion of such
Original Term and, subject to the terms and conditions hereof, at
the Rent applicable to such Units for such term at the time the
order for such Units is placed, provided that the order is in
writing and accepted by Lessor. Such acceptance shall be at the
sole discretion of Lessor. Each addition, attachment, alteration
or improvement to any Unit shall belong to and become the
property of Lessor unless, at the request of Lessor, it is
removed prior to the return of such Unit by Lessee. Lessee shall
be responsible for all costs relating to such removal and shall
restore such Unit to its operating condition that existed at the
time it became subject to the applicable Lease.
2
3
3.11 EQUIPMENT TO BE PERSONAL PROPERTY. Lessee acknowledges and represents
that the Equipment shall be and remain personal property,
notwithstanding the manner in which it may be attached or affixed to
realty, and Lessee shall do all acts and enter into all agreements
necessary to ensure that the Equipment remains personal property.
3.12 FINANCIAL STATEMENTS. Lessee shall promptly furnish to Lessor such
financial or other statements respecting the condition and operations
of Lessee, and information respecting the Equipment, as Lessor may from
time to time reasonably request.
3.13 LESSEE REPRESENTATIONS. Lessee hereby represents that, with respect to
this Agreement and each Lease: (a) the execution, delivery and
performance thereof by Lessee have been duly authorized by all
necessary corporate action; and (b) the individual executing such
document is duly authorized to do so; (c) such document constitutes
legal, valid and binding obligations of Lessee, enforceable in
accordance with its terms.
IV. DEFAULT AND REMEDIES
4.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an Event of Default hereunder: (a) Lessee shall fail to pay
any rental or other payment due hereunder within five (5) days after
its receipt of notice of nonpayment; (b) any representation or warranty
of Lessee made in this Agreement, any Lease, or in any document
furnished pursuant to the provisions of this Agreement or otherwise,
shall prove to have been false or misleading in any material respect as
of the date when it was made; (c) Lessee shall fail to perform any
covenant, condition or agreement made by it under any Lease, and such
failure shall continue for twenty (20) days after its receipt of notice
thereof; (d) bankruptcy, receivership, insolvency, reorganization,
dissolution, liquidation or other similar proceedings shall be
instituted by or against Lessee or all or any part of its property
under the Federal Bankruptcy Code or other law of the United States or
of any other competent jurisdiction, and if such proceeding is brought
against Lessee, it shall consent thereto or shall fail to cause the
same to be discharged within thirty (30) days after it is filed; (e)
Lessee shall default under any agreement with respect to the purchase
or installation of any of the Equipment; or (f) Lessee or any guarantor
of Lessee's obligations under any Lease shall default under any other
agreement with Lessor or Cisco Systems, Inc.
4.2 REMEDIES. If an Event of Default hereunder shall occur and be
continuing, Lessor may exercise any one or more of the following
remedies: (a) terminate any or all of the Leases and Lessee's rights
thereunder; (b) proceed, by appropriate court action or actions, either
at law or in equity, to enforce performance by Lessee of the applicable
covenants of any or all of the Leases or to recover damages for the
breach thereof; (c) recover from Lessee an amount equal to the sum of
(i) all amounts due under any or all of the Leases on or before the
Lessor giving Lessee written notice that such Event of Default has
occurred and, if Lessor obtains a judgment against Lessee with respect
to such Event of Default, the entry of such judgment, whichever shall
last occur, (ii) as liquidated damages for loss of a bargain and not as
a penalty, the present value of the balance of all rentals and other
sums payable thereunder and hereunder, without any presentment, demand,
protest or further notice (all of which are hereby expressly waived by
Lessee), discounted at a rate equal to the rate for United States
Treasury Bills, as the case may be, as shown in the Wall Street
Journal, with a maturity which is closest to the balance of the term of
such Lease (the "Discount Rate") as of the date of the payment of such
amount, and (iii) any loss or damage to the Lessor's residual interest
in the Equipment caused by such Event of Default; (d) personally, or by
its agents, take immediate possession of any or all of the Equipment
from Lessee and, for such purpose, enter upon Lessee's premises where
any of the Equipment is located with or without notice or process of
law and free from all claims by Lessee; and (e) require the Lessee to,
and the Lessee shall, assemble the Equipment and deliver the Equipment
to a location which is reasonably convenient to Lessor and Lessee. The
exercise of any of the foregoing remedies by Lessor shall not
constitute a termination of any Lease or this Agreement unless Lessor
so notifies Lessee in writing.
4.3 DISPOSITION OF EQUIPMENT. In the event, upon the occurrence of an Event
of Default, Lessor repossesses any of the Equipment, Lessor may lease
any or all of such Equipment, or sell any or all of such Equipment at
one or more public or private sales, in such manner, at such times and
upon such terms as Lessor may determine. In the event that Lessor leases
any of such Units, any rentals received by Lessor for the "Remaining
Lease Term" (the period ending on the date when the Original Term for
such Unit would have expired if an Event of Default had not occurred),
discounted to present value, at the Discount Rate, as of the Possession
Date (the "Recovery Rentals"), for such Units shall be applied to the
payment of (a) all costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred by Lessor in retaking possession
of, and removing, storing, repairing, refurbishing and leasing, such
Units, (b) accrued and unpaid rentals as of the date Lessor obtained
possession of such Units or the date on which Lessee made an effective
tender of possession of such Units to Lessor, whichever shall first
occur (the "Possession Date"), (c) the present value of the rentals for
such Units for the balance of the Original Term of the applicable Lease
(the "Discounted Remaining Rentals") and any other sums payable
thereunder or hereunder with respect to such Units, discounted at the
Discount Rate as of the Possession Date, (d) any and all other sums
(other than rentals) with respect to such Units then owing to Lessor by
Lessee thereunder or hereunder, and (e) any loss or damage to the
Lessor's residual interest in such Units caused by such Event of Default
(the aggregate of such amounts being referred to as the "Release
Recovery Amount"). In the event that Lessor shall sell or otherwise
dispose of (other than pursuant to a lease) any such Units, the proceeds
thereof (the "Recovery Proceeds") shall be applied to the payment of the
amounts referred to in clauses (a) through (d) above and the amount by
which the Casualty Value for such Units, as of the Possession Date,
exceeds the Discounted Remaining Rentals (the aggregate of such amounts
being referred to as the "Sale Recovery Amount"). The balance, if any,
of the Recovery Rentals, in the case of a release, and of the Recovery
Proceeds, in the case of a sale or other disposition, shall be applied
first to reimburse Lessee for any sums previously paid by Lessee as
liquidated damages with respect to such Units, and any remaining amounts
shall be retained by Lessor. Lessee shall remain liable to Lessor, with
respect to any Units which are released or sold or otherwise disposed
of, to the extent that the Release Recovery Amount exceeds the Recovery
Rentals or the Sale Recovery Amount exceeds the Recovery Proceeds.
Lessor shall be entitled to, and Lessee shall have no claim with respect
to, all rentals, with respect to any period commencing after the
expiration of the applicable Remaining Lease Term, from released Units.
V. MISCELLANEOUS
5.1 PERFORMANCE OF LESSEE'S OBLIGATIONS. Upon Lessee's failure to pay Rent
(or any other sum due hereunder) or perform any obligation hereunder
when due, Lessor shall have the right, but shall not be obligated, to
pay such sum or perform such obligation, whereupon such sum or the cost
of such performance shall immediately become due and payable hereunder
as additional rent, with interest thereon at the highest legal rate
from the date such payment or performance was made.
5.2 ASSIGNMENT. LESSEE SHALL NOT RELINQUISH POSSESSION OR CONTROL OF, OR
ASSIGN, SUBLEASE, PLEDGE, HYPOTHECATE OR OTHERWISE TRANSFER, DISPOSE OF
OR ENCUMBER ANY UNIT, THIS AGREEMENT OR ANY LEASE OR SCHEDULE, OR ANY
PART THEREOF OR INTEREST THEREIN, OR ANY RIGHT OR OBLIGATION WITH
RESPECT THERETO, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR.
5.3 QUIET ENJOYMENT. So long as Lessee shall not be in default of any of
its obligations under any Lease, neither Lessor nor its assignee shall
interfere with Lessee's right of quiet enjoyment and use of the
Equipment.
3
4
5.4 FURTHER ASSURANCES. Lessee shall, upon the request of Lessor, from time to
time, execute and deliver such further documents and do such further acts
as Lessor may reasonably request in order fully to effect the purposes of
any Lease and Lessor's rights thereunder. Lessor is authorized to file a
financing statement, signed only by Lessor in accordance with the Uniform
Commercial Code or signed by Lessor as Lessee's attorney in fact, with
respect to any of the Equipment.
5.5 RIGHTS AND REMEDIES. Each and every right and remedy granted to Lessor
under any Lease shall be cumulative and in addition to any other right or
remedy therein specifically granted or now or hereafter existing in equity,
at law, by virtue of statute or otherwise, and may be exercised by Lessor
from time to time concurrently or independently and as often and in such
order as Lessor may deem expedient. Any failure or delay on the part of
Lessor in exercising any such right or remedy, or abandonment or
discontinuance of steps to enforce the same, shall not operate as a waiver
thereof or affect Lessor's right thereafter to exercise the same. Waiver of
any right or remedy on one occasion shall not be deemed to be a waiver of
any other right or remedy or of the same right or remedy on any other
occasion.
5.6 NOTICES. Any notice, request, demand, consent, approval or other
communication provided for or permitted hereunder shall be in writing and
shall be conclusively deemed to have been received by a party hereto on the
day it is delivered to such party at its address set forth above (or at
such other address as such party shall specify to the other party in
writing), or if sent by registered or certified mail, return receipt
requested, on the fifth day after the day on which it is mailed, addressed
to such party at such address.
5.7 SECTION HEADINGS; COUNTERPARTS. Section headings are inserted for
convenience of reference only and shall not affect any construction or
interpretation of this Agreement. This Agreement and each Lease may be
executed in counterparts, and when so executed each counterpart shall be
deemed to be an original, and such counterparts together shall constitute
one and the same instrument.
5.8 ENTIRE LEASE. This Agreement and each Lease constitute the entire agreement
between Lessor and Lessee with respect to the lease of Equipment and
supersede all other prior or contemporaneous agreements, whether oral or in
writing, with respect thereto. No waiver or amendment of, or any consent
with respect to, any provision of this Agreement shall bind either party
unless set forth in writing, specifying such waiver, consent, or amendment,
signed by both parties, and then such waiver, consent, or amendment shall
be effective only in the specific instance and for the specific purpose
given. Any term or condition of any purchase order or other document (with
the exception of any Lease) submitted by Lessee in connection with this
Lease which is in addition to or inconsistent with the terms and conditions
of this Agreement shall not be binding on Lessor and shall not apply to
this Agreement. To the extent permitted by applicable law and not otherwise
specifically provided to Lessee in this Agreement, Lessee hereby waives any
and all rights or remedies conferred upon a lessee under the California
Uniform Commercial Code, and any other applicable similar code or statutes
of another jurisdiction, with respect to a default by Lessor under this
Agreement.
5.9 SEVERABILITY. Should any provision of this Agreement or any Lease be or
become invalid, illegal, or unenforceable under applicable law, the other
provisions of this Agreement and such Lease shall not be affected and shall
remain in full force and effect, and, to the extent permissible under
applicable law and possible, any such invalid, illegal or unenforceable
provision shall be deemed amended to the extent necessary to be valid,
legal and enforceable and to conform to the intent of the parties;
provided, however, in the event Lessee's obligation under any Lease to pay
rent or any other amount shall be invalid, illegal or unenforceable, Lessor
shall have the right to terminate such Lease as if an Event of Default
shall have occurred.
5.10 ATTORNEYS' FEES. Should either party institute any action or proceeding to
enforce this Agreement or any Lease, or any provision hereof or thereof, or
for a declaration of rights under any such agreement, the prevailing party
in any such action or proceeding shall be entitled to receive from the
other party all reasonable out-of-pocket costs and expenses, including,
without limitation, attorneys' fees, which it incurs in connection with
such action or proceeding.
5.11 GOVERNING LAW. This Lease shall be governed in all respects by the laws of
the State of California with respect to agreements entered into, and to be
performed, entirely in California. EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED IN ANY LEASE, THIS AGREEMENT AND EACH LEASE SHALL BE GOVERNED IN
ALL RESPECTS BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA. LESSOR AND LESSEE WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY
LITIGATION ARISING FROM THIS AGREEMENT OR ANY LEASE. LESSEE CONSENTS TO THE
NON-EXCLUSIVE JURISDICTION OF THE STATE COURTS OF CALIFORNIA, AND THE
FEDERAL COURTS SITTING IN THE STATE CALIFORNIA, FOR THE RESOLUTION OF ANY
DISPUTES HEREUNDER.
5.12 SURVIVAL. All obligations of Lessee to make payments to Lessor under any
Lease or to indemnify Lessor, pursuant to Section 3.4 or 3.7 above, with
respect to a Lease, and all rights of Lessor hereunder with respect to a
Lease, shall survive the termination of such Lease.
LESSEE, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, ACKNOWLEDGES
THAT IT HAS READ THIS LEASE, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS
TERMS AND CONDITIONS.
CISCO SYSTEMS CAPITAL CORPORATION, ABOVENET COMMUNICATIONS, INC.
(Lessor) (Lessee)
By: /s/ XXX XXXXXXX By: /s/ XXXXXXX XXXXXX
------------------------------- ---------------------------
(Authorized Signature) (Authorized Signature)
Xxx Xxxxxxx, Manager, Customer Service
& Operations
Cisco Systems Capital Xxxxxxx Xxxxxx/Exec. V.P. & ??
---------------------------------- ------------------------------
(Name/Title) (Name/Title)
5/21/98 2/2/98
---------------------------------- ------------------------------
(Date) (Date)
4
