XXX XXXXXXXXXXX LESSEE NO. 11564
2
EMC
MASTER LEASE AGREEMENT
This MASTER LEASE AGREEMENT (hereinafter called the "Master Agreement") is
entered into by and between XXX Xxxxxxxxxxx, a Massachusetts corporation
(hereinafter called "Lessor"), having its principal place of business at 000
Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, and Website Management Company, Inc. dba
Flashnet (hereinafter called "Lessee"), having a principal place of business at
0000 Xxxxx Xxxxxx Xxxx Xxxx., Xxxx Xxxxx, XX 00000.
I. THE LEASE
1.1 LEASE OF EQUIPMENT. In accordance with the terms and conditions of
this Master Agreement, Lessor agrees to lease to Lessee, and Lessee
agrees to lease from Lessor, the units of personal property (hereinafter
individually called a "Unit" and collectively called "Equipment")
described in supplement(s) which are executed pursuant to and
incorporate the terms of this Master Agreement (each hereinafter, a
"Supplement"). Each Supplement shall constitute a separate, distinct,
and independent lease and contractual obligation of Lessee. The term
"Lease" as used hereinafter shall refer to an individual Supplement
which incorporates the terms of this Master Agreement. Lessor or its
assignee shall retain the full legal title to the Equipment, it being
expressly agreed by both parties that this Master Agreement and each
Lease shall constitute an agreement of lease only. Each Lease shall be
binding upon Lessor and Lessee from the date of acceptance and execution
of the applicable Supplement, by Lessor at its headquarters.
1.2 TERMS OF LEASE. The original term of lease for each Unit (hereinafter
the "Original Term") shall commence on the date specified in the
applicable Supplement and, subject to Section 2.5 below, shall terminate
as specified in such Supplement. No Lease may be canceled by Lessee for
any reason whatsoever.
1.3 DISCLAIMERS; WARRANTIES. LESSEE ACKNOWLEDGES AND AGREES THAT LESSOR
MAKES NO EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO
LESSEE'S USE OR OPERATION OF THE EQUIPMENT. LESSOR EXPRESSLY DISCLAIMS
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE FOR THE EQUIPMENT OR OTHER PRODUCTS, DOCUMENTATION AND SERVICES
PROVIDED HEREIN. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
ASSOCIATED WITH THE EQUIPMENT OR THE LEASE THEREOF EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
1.4 RENTAL PAYMENTS. Lessee shall pay rental to Lessor for the Unit(s) in
the amounts and on the dates specified in the applicable Supplement. If
any rental or other amount due hereunder is not paid within five (5)
days of the due date thereof, Lessee shall pay to Lessor on demand, as
additional rental, interest thereon from the due date until payment at a
rate equal to the lesser of (i) eighteen (18%) per annum, or (ii) the
maximum rate permitted by law. All rental and other amounts payable by
Lessee to Lessor hereunder shall he paid to Lessor at the address
specified above, or at such other place as Lessor may designate in
writing to Lessee. Time is of the essence with respect to all of
Lessee's obligations under any Lease.
1.5 RETURN OF EQUIPMENT. Upon expiration of the Original Term, Lessee will
immediately return the Equipment to Lessor as provided in Section 2.3
below. Should Lessee not return the Equipment at the end of the Original
Term, the Equipment shall continue to be held and leased hereunder, and
the Lease shall thereupon be extended for successive three (3) month
terms, at the same monthly rental, subject to the right of either Lessee
or the Lessor to terminate the Lease upon ninety (90) days written
notice, whereupon the Lessee shall forthwith deliver the Equipment to
the Lessor. If Lessee fails to return the Equipment upon demand therefor
by Lessor, Lessee shall pay Lessor, as the reasonable measure of
Lessor's damages, the value, at replacement cost, of the Equipment so
converted.
II. COVENANTS OF LESSEE
2.1 PAYMENT OF RENTAL AND OTHER MONIES. Each lease is a net lease and Lessee
acknowledges and agrees that Lessee's obligation to pay all rental and
other sums payable hereunder, 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, counterclaim or other defense for
any reason whatsoever. It being the intent of Lessor, and an inducement
to Lessor, to enter into the Lease, to claim all available tax benefits
of ownership with respect to the Equipment, Lessee acknowledges and
agrees that (i) no right, title or interest in the Equipment has been
or is intended to be passed to Lessee, other than the right to maintain
possession and use of the Equipment for the Original Term, conditioned
on Lessee's performance of the terms and conditions of the Lease, (ii)
Lessee has not taken and will not at any time during the Original Term
take any action which shall cause Lessor to lose any tax benefits of
ownership, and (iii) the Stipulated Loss Values (defined in the
applicable Lease) agreed to under this Lease are intended to provide
recovery by Lessor of such lost tax benefits of ownership.
2.1.1 ACCEPTANCE OF EQUIPMENT. Lessee's acceptance of the Equipment shall be
conclusively and irrevocably evidenced by Lessee executing the
Certificate of Delivery and Acceptance and upon acceptance the Lease of
such Equipment shall be noncancellable for the Original Term unless
otherwise agreed to in writing by Lessor.
2.2 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 and with the provisions of all policies of insurance carried
by Lessee pursuant to Section 2.6 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.
2.3 DELIVERY, INSTALLATION, MAINTENANCE AND REPAIR. Lessee shall be solely
responsible, at its own expense, for the delivery of the Equipment to
Lessee, 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. Lessee is also
solely responsible for the installation, de-installation, maintenance
and repair of the Equipment. Lessee shall, at its expense, (a) keep the
Equipment in good repair, condition and working order, ordinary wear and
tear excepted, and (b) at the expiration of the Original Term or any
renewal term have the Equipment inspected and certified as acceptable
for maintenance service by the manufacturer. Lessor shall be entitled to
inspect the Equipment at Lessee's location at reasonable times.
2.4 TAXES. Lessee agrees to pay, and to indemnify and hold Lessor harmless
from, all license fees, assessments, and sales, use, property, excise and
other taxes and charges ("Imposts")(other than those measured by
Lessor's net income) now or hereafter imposed by any governmental body
or agency upon or with respect to (a) the Equipment or the possession,
ownership, use or operation thereof or (b) this Master Agreement, any
Lease, or the consummation of the transactions herein contemplated. All
required personal property tax returns relating to the Equipment shall
be filed by Lessee unless otherwise provided in writing. Lessee shall
reimburse Lessor promptly upon demand for the amount of any Imposts
remitted by Lessor which are required hereunder to be borne by Lessee.
2.5 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 (hereinafter called an
"Event of Loss") after its delivery to Lessee. If an Event of Loss shall
occur with respect to any Unit, Lessee shall promptly and fully notify
Lessor thereof. On the rental payment date following such notice Lessee
shall pay to Lessor an amount equal to the rental payment or payments
due and payable for such Unit on such date plus a sum equal to the
Stipulated Loss Value (as defined in the applicable Supplement) of such
Unit as of the date of such payment set forth in such Supplement. Upon
the making of such payment by Lessee regarding any Unit, the rental
obligation for such Unit shall cease, the 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
at Lessee's expense in accordance with the provisions of Section 2.3
above. Provided that Lessor has received the Stipulated Loss Value for
any Unit, Lessee shall be entitled to the proceeds of any recovery in
respect of such Unit from insurance or otherwise.
2.6 INSURANCE. Lessee shall obtain and maintain for the entire term of the
Lease, at its own expense, property damage and liability insurance and
insurance against loss or damage to the Equipment including, without
limitation, loss by fire (including so-called extended coverage), theft
and such other risks of loss as are required on the type of Equipment
leased hereunder and by businesses in which Lessee is engaged in such
amounts in such form and with such insurers as shall be satisfactory to
Lessor, provided however, that such insurance for loss or damage of any
Unit shall always be at a minimum, the amount of the Stipulated Loss
Value of such Unit. 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 to Lessor or its
successors and assigns. Lessee shall provide to Lessor a certificate of
insurance as evidence of insurance coverage prior to delivery of any
Unit.
2.7 INDEMNITY. Lessee shall and does hereby indemnify Lessor and its
successors and assigns against, and hold Lessor and its successors and
assigns harmless from, any and all claims, demands, actions and suits,
proceedings, costs, expenses, damages and liabilities, including
reasonable attorneys' fees, hereinafter ("Claims"), arising out of,
connected with or resulting from this Master Agreement, any Lease, or
the Equipment, including, without limitation, the selection, ownership,
control, maintenance, lease, purchase, delivery, possession, condition,
use, operation, or return of the Equipment. Lessee shall give Lessor
immediate notice of any Claim and Lessee shall satisfy, pay and
discharge any and all judgments and fines that may be recovered against
Lessor in connection with any such Claim. Lessor shall give Lessee
written notice of any such Claim of which Lessor has knowledge.
2.8 POSSESSION; ASSIGNMENT; PLEDGE. Without the prior written consent of
Lessor, which such consent as it pertains to subsections (a) and (d),
shall not be unreasonably withheld or delayed, Lessee shall not (a)
sublease the Equipment, or any part thereof, provided, that Lessee may,
without the prior written consent of Lessor, permit any parent or
subsidiary of Lessee to use the Equipment, or any part thereof, in the
ordinary course of its business, (b) assign this Master Agreement or any
Lease or its interest hereunder or thereafter, (c) create or incur any
lien or encumbrance with respect to the Equipment, or any part thereof,
(d) move the Equipment, or any part thereof, or permit any of the
Equipment to be moved from the location at which it is first installed,
or (e) permit the Equipment, or any part thereof, to be removed outside
the continental limits of the United States.
2.9 IDENTIFICATION. At any time during the term of a Lease, Lessor may
require Lessee to legibly xxxx each Unit subject to such Lease in a
reasonably prominent location with a label, disc or other marking
stating that the Equipment is owned by Lessor.
2.10 ALTERATIONS OR MODIFICATIONS. Lessee shall not make any alternations of
or additions to the Equipment without the prior written consent of
Lessor. At any time during the Original Term, of any 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 Original Term and, subject
to the terms and conditions hereof, at the rental rates applicable to
such Equipment and term in effect at the time the order is placed,
provided that the order is in writing and accepted by Lessor. Such
acceptance shall be at the sole discretion of Lessor. All additions,
attachments or accessories to or improvements of the Equipment shall
immediately belong to and become property of the Lessor unless, at the
request of Lessor, such additions, attachments or accessories to or
improvements of the Equipment are removed prior to the return of said
Equipment by Lessee. Lessee shall be responsible for the costs of such
removal and shall restore the Equipment to the same operating condition
as when it became subject to the Lease.
2.11 EQUIPMENT TO BE PERSONAL PROPERTY. Lessee agrees 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.
2.12 FINANCIAL STATEMENTS. Lessee shall promptly furnish, or cause to be
furnished, to Lessor such financial or other statements respecting the
condition and operations of Lessee or respecting the Equipment as Lessor
may from time to time reasonably request.
2.13 LESSEE REPRESENTATIONS. Lessee hereby represents, warrants and covenants
that with respect to this Master Agreement and each Lease entered into
hereunder:
(a) The execution, delivery and performance thereof by the Lessee
have been duly authorized by all necessary corporate action;
(b) The individual executing such was duly authorized to do so;
(c) This Master Agreement and each Lease constitute the legal, valid
and binding obligations of the Lessee enforceable in accordance
with their respective terms.
III. DEFAULT AND REMEDIES
3.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an Event of Default hereunder: (a) Lessee shall fail to pay
on the due date any rental or other payment due under any lease, (b) any
provision of this Master Agreement or any Lease or any provision in any
document provided by Lessee for this Master Agreement or any Lease, or
in any document furnished pursuant to the provisions hereof 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 provision, covenant, condition or agreement made by it under
this Master Agreement or Lease, and such failure shall continue for ten
(10) days after notice thereof from Lessor to Lessee or (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 state law, and if against
Lessee it shall consent thereto or shall fail to cause the same to be
discharged within twenty (20) days, or (e) Lessee shall default under
any agreement with respect to the purchase or installation of the
Equipment, or (f) if Lessee or any guarantor of Lessee's obligations
hereunder shall default under any other agreement with Lessor.
3.2 REMEDIES. If an Event of Default hereunder shall occur and be
continuing, Lessor may exercise any one or more of the following
remedies: (a) immediately terminate this Master Agreement and any or all
Leases and Lessee's rights hereunder and 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 the Lease
or to recover damages for the breach thereof, (c) by notice in writing
to Lessee, recover all amounts due on or before the date of the event of
default, plus, as liquidated damages for loss of a bargain and not as a
penalty, accelerate, and declare to be immediately due and payable all
rentals and other sums payable under any or all such Leases, without any
presentment, demand, protest or further notice (all of which hereby are
expressly waived by Lessee), whereupon the same shall be and become
immediately due and payable, and (d) personally, or by its agents take
immediate possession of the Equipment, or any part thereof, 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. The exercise of any of the foregoing remedies
by Lessor shall not constitute a termination of any Lease unless Lessor
so notifies Lessee in writing.
3.3 DISPOSITION OF EQUIPMENT. In the event Lessor repossesses Equipment,
Lessor may (a) lease the Equipment, or any portion thereof, in such a
manner, for such time and upon such term(s) as Lessor may determine or
(b) sell the Equipment, or any portion thereof, at one or more public or
private sales, in such manner, and at such times and upon such terms as
Lessor may determine. In the event that Lessor leases any such Units,
any rentals received by Lessor for the Remaining Lease Term(s) (the
period ending on the date when the Original Term for the Unit(s) would
have expired if an Event of Default had not occurred) for such Units
shall be applied to the payment of (i) all costs and expenses (including
attorneys' fees) incurred by Lessor in retaking possession of, and
removing, storing, repairing, refurbishing and leasing such Units, and
(ii) the rentals for the remainder of the Original Term and all other
sums, including past due rentals, remaining unpaid under the Lease. The
balance of such rentals, if any, shall be applied first to reimburse
Lessee for any sums previously paid by Lessee as liquidated damages, and
any remaining amounts shall be retained by Lessor. All rentals received
by Lessor for the period commencing after the expiration of the
Remaining Lease Term(s) shall be retained by Lessor. Lessee shall remain
liable to Lessor to the extent that the aggregate amount of the sums
referred to in clauses (i) and (ii) above shall exceed the aggregate
rentals received by Lessor under such leases for the respective
Remaining Lease Term(s) applicable to the Units covered by such leases.
In the event that Lessor shall sell or otherwise dispose of (other than
pursuant to a lease) any such Unit, the proceeds thereof shall be
applied to the payment of (i) all costs and expenses (including
reasonable attorneys' fees) incurred by Lessor in retaking possession
of, and removing, storing, repairing, refurbishing and selling or
otherwise disposing of such Unit(s), (ii) the rentals that either did or
would have accrued under the Lease but are unpaid up to the time of such
sale or other disposition, (iii) any and all other sums (other than
rentals) then owing to Lessor by Lessee under, and (iv) the Stipulated
Loss Value of such Unit(s) determined as of the date of such sales or
other disposition in accordance with the schedule set forth in the Lease
for such Unit(s). The balance of such proceeds, if any, shall be applied
first to reimburse Lessee for any sums previously paid by Lessee as
liquidated damages, and any remaining amounts shall be retained by
Lessor. Lessee shall remain liable to Lessor to the extent that the
aggregate amount of the sums referred to in clauses (i) through (iv)
above shall exceed the aggregate proceeds received by Lessor in
connection with the sale or disposition of the Equipment (other than
pursuant to a lease).
IV. MISCELLANEOUS
4.1 PERFORMANCE OF LESSEE'S OBLIGATIONS. Upon Lessee's failure to pay any
sum or perform any obligation hereunder when due, Lessor shall have the
option, but shall in no case 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 as additional rent from Lessee
to Lessor with interest at the highest legal rate from the date payment
or performance was due.
4.2 ASSIGNMENT. No right, obligation or interest of Lessee with respect to
this Master Agreement, any Lease or Equipment shall, without the prior
written consent of Lessor, be assignable by Lessee or by operation of
law, and any such purported assignment, transfer or succession shall be
null and void. Lessor may, at anytime, without the consent of Lessee,
assign the Master Agreement and any Lease or any interest herein or
therein to any party. In the event of any assignment of Lessor, the
assignee shall have all of Lessor's rights hereunder, but none of its
obligations, and upon receipt by Lessee of written notice of any such
assignment, Lessee shall make all payments thereafter becoming due under
any assigned Lease to such assignee without regard to any set-off,
defense or counter clam that Lessee may have against Lessor.
4.3 QUIET ENJOYMENT. So long as Lessee shall not be in default hereunder and
Lessor continues to receive all rent and other sums payable by Lessee
hereunder in accordance with the terms hereof, neither Lessor nor its
assignee, shall interfere with Lessee's right of quiet enjoyment and use
of the Equipment.
FURTHER ASSURANCES. Lessee agrees that at any time, and from time to
time, after the execution and delivery of this Lease, it shall, upon the
request of Lessor, execute and deliver such further documents and do
such further acts and things as Lessor may reasonably request in order
fully to effect the purposes of this Lease including without limitation,
the filing of financial and confirmation statements. Lessee authorizes
Lessor to file a financing statement or any confirmation statements
signed only by Lessor in accordance with the Uniform Commercial Code or
signed by Lessor as Lessee's attorney in fact.
4.5 RIGHTS, REMEDIES, POWERS. Each and every right, remedy and power
granted to Lessor hereunder shall be cumulative and in addition to any
other right, remedy or power herein 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. And any failure or delay on the part of Lessor in exercising
any such right, remedy or power, 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, and any single or
partial exercise of any such right, remedy or power shall not preclude
any other or further exercise thereof or the exercise of any other
right, remedy or power.
4.6 NOTICES. Any notice, request, demand, consent, approval or other
communication provided 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 third business day after the day on which mailed,
addressed to such party at such address.
4.7 SECTION HEADINGS. Section headings are inserted for convenience only and
shall not affect any construction or interpretation of any Lease.
4.8 BINDING EFFECT. Each Lease, subject to the provisions of Sections 2.8
and 4.3 hereof, shall be binding upon and shall inure to the benefit of
the respective successors and assigns of the Lessee and Lessor.
4.9 GOVERNING LAW. Each Lease shall be governed in all respects by the laws
of the Commonwealth of Massachusetts.
4.10 ENTIRE LEASE. Each Lease, consisting of the terms and conditions of this
Master Agreement, a Supplement, and any Amendments, Schedules or Riders
to either of them, constitutes the entire agreement between Lessor and
Lessee. No waiver, consent, modification or change of terms of this
Lease shall bind either party unless in writing signed by both parties,
and then such waiver, consent, modification or change shall be effective
only in the specific instance and for the specific purpose given. There
are no understandings, agreements, representations or warranties,
express or implied, not specified therein regarding any Lease or the
Equipment leased thereunder. Any terms and conditions of any purchase
order or other document (with the exception of Supplements) submitted by
Lessee in connection with any Lease which are in addition to or
inconsistent with the terms and conditions of such Lease will not be
binding on Lessor and will not apply to the Lease. LESSEE BY THE
SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE ACKNOWLEDGES THAT IT
HAS READ THIS MASTER AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND
BY ITS TERMS AND CONDITIONS WITH RESPECT TO ANY LEASE ENTERED INTO
HEREUNDER.
LEASE ACCEPTED BY:
XXX XXXXXXXXXXX, (Lessor) Website Management Company, Inc.
dba Flashnet (Lessee)
-------------------------
BY: /s/ Xxxx X. Xxxxxxxxxx BY: /s/ G.B. Xxxxx
------------------------------- --------------------------------
TITLE: MANAGER OF LEASE OPERATIONS TITLE: CFO
------------------------------- ------------------------------
2
XXX XXXXXXXXXXX EMC Supplement No. 1
MASTER LEASE AGREEMENT SUPPLEMENT
This Supplement to Master Lease Agreement Number 11564 (hereinafter called the
"Master Agreement") between Lessor and the Lessee whose name appears below,
together with the Master Agreement, constitutes a lease of the Equipment
described below (hereinafter, collectively, this "Lease"). All the terms and
conditions of the Master Agreement apply to this Lease with the same force and
effect as if all said terms and conditions were fully set forth herein and said
terms and conditions are incorporated herein and made part hereof by reference.
All capitalized terms not defined in this Supplement shall have the meanings
given such terms in the Master Agreement. It is the intent of the parties that
this Supplement be separately enforceable as a complete and independent lease,
independent of all other Supplements to the Lease.
EQUIPMENT DESCRIPTION:
ITEM QTY. EQUIPMENT MONTHLY ORIGINAL EQUIPMENT
RENT TERM COST
(MOS.)
1. 1 Symmetrix 3500-9032 $9,023.00 42 $350,000.00
2. 2 OSD4 Included Included
3. 1 3000-98 Included Included
4. 1 OSYMGR-BAS Included Included
------- --------
$9,023.00 $350,000.00
Equipment Location: 0000 Xxxxx Xxxxxx Xxxx Xxxx., Xxxx Xxxxx, XX 00000
Monthly Rent: The first payment of monthly rent is due and payable on the
Commencement Date. Subsequent payments of monthly rent are due and payable on
the same date of each succeeding month. The Lease Term for each Unit will
automatically extend for successive three (3) month periods after the expiration
of the Original Term in accordance with all the terms and conditions of this
Lease including the same monthly rent, until either party shall give the other
party at least ninety (90) days prior notice of its intent not to extend or
renew this Supplement.
SUPPLEMENT ACCEPTED BY:
XXX XXXXXXXXXXX (Lessor) Website Management Company, Inc.
dba Flashnet (Lessee)
----------------------------------
BY: /s/ Xxxx X. Xxxxxxxxxx BY: /s/ G. B. Xxxxx
----------------------------- ----------------------------------
(Authorized Signature) (Authorized Signature)
XXXX X. XXXXXXXXXX
MANAGER OF LEASE OPERATIONS CFO
----------------------------- ----------------------------------
(Name/Title) (Name/Title)
6/12/97 5/8/97
----------------------------- ----------------------------------
(Date) (Date)
(Continued on reverse)
COMMENCEMENT DATE: The Commencement Date shall be the first day of the month
following the day on which all of the Equipment listed above is installed and is
accepted by Lessee, unless the acceptance date is the first day of the month in
which case the first day off that month shall be the Commencement Date.
INTERIM RENT: Lessee shall pay interim rental at a rate of 1/30th of the monthly
rent per day from and including the acceptance date to the Commencement Date.
Payments of interim rent are due and payable upon Lessee's receipt of invoice
from Lessor.
CHATTEL PAPER: To the extent this Lease may be considered "chattel paper" as
defined in the Uniform Commercial Code, this original executed Supplement,
incorporating the terms of the Master Agreement, shall constitute the original
Lease, and Lessor's interests herein my be transferred only by transfer of
possession of this original Supplement.
STIPULATED LOSS VALUES: The Stipulated Loss Value for each Unit, as of any date,
shall be an amount equal to the product of (i) the cost of the Unit (as
specified on the reverse side hereof) and (ii) the percentage indicated below
opposite the period of time in which such date occurs.
MONTH OF ORIGINAL TERM
BEGINNING
FROM COMMENCEMENT
DATE PERCENTAGE
---------------------- ----------
1st through 12th month 107%
13th through 24th month 85%
25th through 36th month 70%
37th through 48th month 50%
49th through 60th month 30%
After the 60th month of the Original Term of the Lease for each Unit, and until
each Unit has been surrendered to Lessor, as provided in the Agreement, the
Stipulated Loss Value of each Unit shall be 20% of the cost thereof.
SUPPLEMENT NO. 2
XXX XXXXXXXXXXX
2
EMC
MASTER LEASE AGREEMENT SUPPLEMENT
This Supplement to Master Lease Agreement Number 11564 (hereinafter called the
"Master Agreement") between Lessor and the Lessee whose name appears below,
together with the Master Agreement, constitutes a lease of the Equipment
described below (hereinafter, collectively, this "Lease"). All the terms and
conditions of the Master Agreement apply to this Lease with the same force and
effect as if all said terms and conditions were fully set forth herein and said
terms and conditions are incorporated herein and made part hereof by reference.
All capitalized terms not defined in this Supplement shall have the meanings
given such terms in the Master Agreement. It is the intent of the parties that
this Supplement be separately enforceable as a complete and independent lease,
independent of all other Supplements to the Lease.
EQUIPMENT DESCRIPTION:
ORGINAL
MONTHLY TERM EQUIPMENT
ITEM QTY. EQUIPMENT RENT (MOS.) COST
---- ---- --------- ------- -------- ---------
1. (Confidential 3000-92 (Confidential 36 (Confidential
treatment has treatment has treatment has
been requested) been requested) been requested)
2. 1 MEM512-UPG
3. 1 OSD4
THIS LEASE IS INTENDED TO BE A COTERMINOUS UPGRADE TO SUPPLEMENT #1, TO BE
COTERMINOUS SUPPLEMENT NO. 2 MUST COMMENCE 1/1/98.
EQUIPMENT LOCATION: 0000 XXXXX XXXXXX XXXX XXXX, XXXX XXXXX, XX 00000
MONTHLY RENT: The first payment of monthly rent is due and payable on the
Commencement Date. Subsequent payments of monthly rent are due and payable on
the same date of each succeeding month. The Lease Term for each Unit will
automatically extend for successive three (3) month periods after the expiration
of the original term in accordance with all the terms and conditions of this
Lease including the same monthly rent, until either party shall give the other
party at least ninety (90) days prior notice of its intent not to extend or
renew this Supplement.
SUPPLEMENT ACCEPTED BY:
XXX XXXXXXXXXXX (Lessor) WEBSITE MANAGEMENT COMPANY, INC.
D/B/A FLASHNET (Lessee)
By: By: /s/ G. B. Xxxxx
-------------------------- --------------------------
(Authorized Signature) (Authorized Signature)
G. B. Xxxxx, CFO
----------------------------- --------------------------
(Name/Title) (Name/Title)
Jan. 30, 1998
----------------------------- --------------------------
(Date) (Date)
(Continued on reverse)
SUPPLEMENT NO. 3
XXX XXXXXXXXXXX
2
EMC
MASTER LEASE AGREEMENT SUPPLEMENT
This Supplement to Master Lease Agreement Number 11564 (hereinafter called the
"Master Agreement") between Lessor and the Lessee whose name appears below,
together with the Master Agreement, constitutes a lease of the Equipment
described below (hereinafter, collectively, this "Lease"). All the terms and
conditions of the Master Agreement apply to this Lease with the same force and
effect as if all said terms and conditions were fully set forth herein and said
terms and conditions are incorporated herein and made part hereof by reference.
All capitalized terms not defined in this Supplement shall have the meanings
given such terms in the Master Agreement. It is the intent of the parties that
this Supplement be separately enforceable as a complete and independent lease,
independent of all other Supplements to the Lease.
EQUIPMENT DESCRIPTION:
ORGINAL
MONTHLY TERM EQUIPMENT
ITEM QTY. EQUIPMENT RENT (MOS.) COST
---- ---- --------- ------- -------- ---------
1. (Confidential 3000-92 (Confidential 33 (Confidential
treatment has treatment has treatment has
been requested) been requested) been requested)
THIS LEASE IS INTENDED TO BE A COTERMINOUS UPGRADE TO SUPPLEMENT #1, TO BE
COTERMINOUS SUPPLEMENT NO. 3 MUST COMMENCE 4/1/98.
EQUIPMENT LOCATION: 0000 XXXXX XXXXXX XXXX XXXX, XXXX XXXXX, XX 00000
MONTHLY RENT: The first payment of monthly rent is due and payable on the
Commencement Date. Subsequent payments of monthly rent are due and payable on
the same date of each succeeding month. The Lease Term for each Unit will
automatically extend for successive three (3) month periods after the expiration
of the original term in accordance with all the terms and conditions of this
Lease including the same monthly rent, until either party shall give the other
party at least ninety (90) days prior notice of its intent not to extend or
renew this Supplement.
SUPPLEMENT ACCEPTED BY:
XXX XXXXXXXXXXX (Lessor)
WEBSITE MANAGEMENT COMPANY, INC.
D/B/A FLASHNET (Lessee)
By: By: /s/ G. B. Xxxxx
-------------------------- --------------------------
(Authorized Signature) (Authorized Signature)
G. B. Xxxxx, CFO
----------------------------- --------------------------
(Name/Title) (Name/Title)
Jan. 30, 1998
----------------------------- --------------------------
(Date) (Date)
(Continued on reverse)
ORIGINAL
2
EMC
MASTER LEASE AGREEMENT SUPPLEMENT
CERTIFICATE OF DELIVERY AND ACCEPTANCE
QUANTITY DESCRIPTION OF EQUIPMENT SERIAL NUMBER
-------- ------------------------ -------------
(Confidential 3000-92
Treatement has
been requested)
Supplement No. 3 is intended to be a coterminous upgrade to
Supplement No. 1; to be coterminous Supplement No. 3 must commence 4/1/98.
EQUIPMENT LOCATION: 0000 XXXXX XXXXXX XXXX XXXX., XXXX XXXXX, XX 00000
I hereby certify that the following Equipment, listed in SUPPLEMENT NUMBER 3 TO
MASTER LEASE AGREEMENT NUMBER 11564 between Lessor and Lessee (hereinafter,
collectively, the "Lease") was delivered, found satisfactory, and is accepted by
Lessee for all purposes of said Lease as of the 1ST DAY OF APRIL, 1998.
WEBSITE MANAGEMENT COMPANY, INC.
D/B/A FLASHNET (Lessee)
BY: /s/ G. B. Xxxxx
-------------------------------
(Authorized Signature)
CFO
-------------------------------
(Name/Title)
ORIGINAL
2
EMC
MASTER LEASE AGREEMENT SUPPLEMENT
CERTIFICATE OF DELIVERY AND ACCEPTANCE
QUANTITY DESCRIPTION OF EQUIPMENT SERIAL NUMBER
-------- ------------------------ -------------
(Confidential 3000-92
treatment has
been requested)
1 MEM512-UPG
1 OSD4
THIS LEASE IS INTENDED TO BE A COTERMINOUS UPGRADE TO SUPPLEMENT #1, TO BE
COTERMINOUS SUPPLEMENT NO. 2 MUST COMMENCE 1/1/98.
EQUIPMENT LOCATION: 0000 XXXXX XXXXXX XXXX XXXX, XXXX XXXXX, XX 00000
I hereby certify that the following Equipment, listed in SUPPLEMENT NUMBER 2 TO
MASTER LEASE AGREEMENT NUMBER 11564 between Lessor and Lessee (hereinafter,
collectively, the "Lease") was delivered, found satisfactory, and is accepted by
Lessee for all purposes of said Lease as of the FIRST DAY OF JANUARY, 1998.
WEBSITE MANAGEMENT COMPANY, INC.
D/B/A FLASHNET (Lessee)
BY: /s/ G. B. Xxxxx
-------------------------------
(Authorized Signature)
CFO
-------------------------------
(Name/Title)
2
EMC
CERTIFICATE OF INCUMBENCY
I, XXXXX XXXXXX the undersigned, Secretary of WEBSITE MANAGEMENT
COMPANY, INC. D/B/A FLASHNET (the "Company"), a TEXAS Corporation, do hereby
certify that the following person is duly elected or appointed, qualified and
acting officer(s) of the company holding the office(s) set forth opposite
each such officers respective name below, and that the signature appearing
opposite each such name is the genuine signature of such person:
NAME OFFICE SIGNATURE
---- ------ ---------
XXXXX XXXXXX President & Secretary
-------------- ------------------------ -------------------
XXXX X. XXXXX Chief Financial Officer /s/ Xxxx X. Xxxxx
-------------- ------------------------ -------------------
-------------- ------------------------ -------------------
IN WITNESS WHEREOF, I have executed this certificate this 4th day of
February 1998
_____________________
Secretary
I, the undersigned, XXXX X. XXXXX, Officer of WEBSITE MANAGEMENT COMPANY, INC.
D/B/A FLASHNET do hereby certify that XXXXX XXXXXX is the duly elected,
qualified and acting Secretary of the Company, and that his signature on the
foregoing certificate is his genuine signature.
/s/ G. B. XXXXX, CFO
-------------------
Title of Officer
