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MASTER AGREEMENT
This Master Agreement dated December 30, 1998 is made by and between
Comdisco, Inc. ("Comdisco") with offices at 0000 Xxxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000 and Network Plus, Inc. ("Customer") with offices
at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000.
SECTION 1. SCOPE
1.1 Schedules. Comdisco will provide Services and Products under the
terms and conditions of this Master Agreement and as more particularly
defined in each Schedule. Each Schedule will constitute a separate
agreement with respect to the Services and Products provided. Schedules
may be entered into by Customer or any of its domestic subsidiaries and
affiliates and such entity will be deemed to be Customer for that
Schedule. However, Customer, as set forth above, will remain jointly and
severally liable for the performance of all obligations under each
Schedule.
1.2 Supplements. In connection with certain Services and Products,
terms and conditions in addition to those specified in this Master
Agreement may apply. Where such additional terms and conditions apply,
the Services and Products will be provided under this Master Agreement,
related Schedules and Supplements. If there is a conflict among the
documents, the order of precedence will be the (i) Schedule, (ii)
Supplement, and (iii) Master Agreement.
1.3 Changes. Any change to this Agreement, which will include the terms
and conditions of this Master Agreement together with related Schedules
and Supplements, must be documented in writing. Comdisco will have no
obligation to commence work in connection with a change request until the
change has been approved in writing by Comdisco and Customer.
SECTION 2. FEES
2.1 Fees. Customer will pay the fees for the Services and the Products
in the amounts and in accordance with the payment terms set forth in each
Schedule.
2.2 Late Fee. Whenever any payment is not made within thirty (30) days
of invoice date, or as otherwise specified in this Agreement, Customer
will pay interest at the lesser of one and one-half percent (1.5%) per
month or the maximum amount permitted by law.
2.3 Expenses. Unless otherwise specified in a Schedule or Supplement,
Customer will reimburse Comdisco for all reasonable expenses incurred in
connection with Comdisco's performance under this Agreement.
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2.4 Taxes. Customer will pay or reimburse Comdisco for any taxes, fees
or other charges imposed by any local, state or federal authority
(together with any related interest or penalties not due to the fault of
Comdisco) resulting from this Agreement, or from any activities hereunder,
except for taxes based on Comdisco's net income.
SECTION 3. TERM
Each Schedule will take effect upon the signature of both parties and
continue through the term as specified therein. The Services to be
provided under each Schedule will begin on the date set forth in the
Schedule.
SECTION 4. WARRANTIES AND LIABILITY
4.1 Services. Comdisco warrants that the Services will be performed in
a professional manner.
4.2 Products. EXCEPT AS SPECIFICALLY STATED IN A SCHEDULE, THE
PRODUCTS, INCLUDING THIRD PARTY SOFTWARE, ARE PROVIDED ON AN "AS IS" BASIS
FROM THE MANUFACTURER AND COMDISCO SHALL HAVE NO LIABILITY IN CONNECTION
WITH SUCH PRODUCTS OR ANY PORTION THEREOF, INCLUDING, BUT NOT LIMITED TO,
INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADE SECRETS OR ANY OTHER
PROPRIETARY RIGHT.
4.3 Exclusive Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, COMDISCO MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4.4 Liability. Comdisco's liability to Customer from any cause
whatsoever arising out of this Agreement will not, in any event, exceed
the aggregate of the fees paid by Customer for the Services giving rise to
the claim during the twelve (12) month period immediately prior to the
occurrence of the claim. UNDER NO CIRCUMSTANCES, WILL EITHER PARTY BE
LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SECTION 5. MUTUAL INDEMNIFICATION
Each party will indemnify and hold the other party and its employees and
agents, harmless against any and all third party claims, liabilities,
losses, damages and causes of action relating to bodily injury, including
death, or damage to real or tangible personal property arising out of the
intentional or negligent acts or omissions of the indemnifying party which
occurred during the performance of a Schedule. The indemnifying party,
however, will not be responsible for injury or damage attributed to the
intentional or negligent acts or omissions of the indemnified party, its
employees or agents.
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SECTION 6. OWNERSHIP AND CONFIDENTIALITY
6.1 Ownership. Comdisco retains all rights in Comdisco Proprietary
Materials. For purposes of this Agreement, Comdisco Proprietary Materials
will mean all materials, information and other deliverable items
originally developed by Comdisco under a Schedule as well as Comdisco's
proprietary tools, methodologies, documentation and methods of analysis.
Comdisco grants to Customer the right to use Comdisco Proprietary
Materials delivered to Customer under a Schedule. Customer may use
Comdisco Proprietary Materials for Customer's internal business use only
and not for the benefit of a third party. Any proprietary software
product of Comdisco will be licensed to Customer under a separate license
agreement.
6.2 Confidentiality. Each party (including its employees and agents)
will use the same standard of care to protect any confidential information
of the other disclosed during negotiation or performance of this Agreement
that it uses to protect its own confidential information. Comdisco's
confidential information includes this Master Agreement, each Schedule and
Supplement, Comdisco Proprietary Materials and Comdisco's security systems
and procedures. Confidential information will not include information
which (i) is or becomes publicly available through no wrongful act of the
receiving party; (ii) was known by the receiving party at the time of
disclosure without any obligation of confidentiality; (iii) was acquired
by the receiving party from a third party that was not under an obligation
of confidence; or (iv) was developed independently by the receiving party.
SECTION 7. PROPRIETARY RIGHTS PROTECTION
Comdisco will defend at its expense any third party claim brought against
Customer alleging that the Comdisco Proprietary Materials infringe a
copyright, trade secret or presently existing United States patent and
will pay any damages finally awarded against Customer. Comdisco will not
be obligated to defend Customer unless Customer notifies Comdisco promptly
in writing of the claim and provides reasonable cooperation and full
authority for Comdisco to defend or settle the claim. Comdisco will not
be liable for any claim of infringement based on any information, data, or
materials provided by Customer.
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SECTION 8. TERMINATION
Either party may, by written notice, terminate a Schedule for cause if the
other party fails to cure a material default under the Schedule. Any
material default must be specifically identified in the notice of
termination. After written notice, the notified party will have ten (10)
days to remedy any monetary default and thirty (30) days to remedy any
other default. Failure to remedy the material default within the time
period provided for herein will give cause for immediate termination. If
termination is due to Customer's material default, Customer will
immediately pay to Comdisco the amounts then owing under the relevant
Schedule up to the date of termination. The foregoing payments will be in
addition to all other legal and equitable rights of Comdisco and any
remedies set forth in a Schedule or Supplement
SECTION 9. MISCELLANEOUS
9.1 Each party is an independent contractor and, except as expressly set
forth herein will have no authority to bind or commit the other party.
Nothing herein shall be deemed or construed to create a joint venture,
partnership or agency relationship between the parties.
9.2 Customer may not assign this Agreement or any of its rights or
obligations therein (except to its successor pursuant to a merger,
consolidation or sale of all or substantially all of its assets) without
obtaining the prior written consent of Comdisco.
9.3 The waiver by either party of a breach of any provision of this
Agreement will not be construed as a waiver of any subsequent breach. The
invalidity, in whole or in part, of any provision of this Agreement will
not affect the validity of the remaining provisions.
9.4 This Master Agreement and each Schedule and Supplement represents
the entire agreement between the parties and supersedes all oral or other
written agreements or understandings between the parties concerning the
Services and Products. This Agreement may not be modified unless in
writing and signed by the party against whom enforcement of the
modification is sought.
9.5 Any notice, request or other communication under this Agreement will
be given in writing and deemed received upon the earlier of actual receipt
or three (3) days after mailing if mailed postage prepaid by regular or
airmail to the address set forth above or, one day after such notice is
sent by courier or facsimile transmission.
9.6 No third party is intended to be, or will be construed to be, a
beneficiary of any provision of this Agreement nor have any right to
enforce any of its provisions or to pursue any remedy for its breach.
9.7 Those terms and conditions which would, by their meaning or intent,
survive the expiration or termination of any Schedule will so survive.
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9.8 THIS MASTER AGREEMENT AND EACH SCHEDULE AND SUPPLEMENT IS GOVERNED
BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO ITS CONFLICT OF
LAWS PROVISIONS. If there is any dispute or litigation as a result of
this Agreement, the prevailing party will be entitled to reasonable
attorney's fees. Any action by either party must be brought within two
(2) years after the cause of action arose.
9.9 During the term of each Schedule and for a period of one (1) year
from the completion of the Services thereunder, Customer agrees not to
knowingly employ or solicit for employment any Comdisco employee who was
involved in the furnishing of the Services under the relevant Schedule.
9.10 Preprinted terms on Customer's purchase order or other
acknowledgment form will be of no force or effect.
9.11 Comdisco will not be considered in default under this Agreement due
to any failure in its performance due to causes beyond its control.
IN WITNESS WHEREOF, the parties have caused this Master Agreement to be
executed by their duly authorized officers as of the day and year first
set forth above.
Network Plus, Inc. Comdisco, Inc.
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Customer
By: Xxxxxx Xxxxxxx By: Xxxxxxxx X. Xxxxxxx
Title: Vice President, CFO Title: Senior Vice President
and Treasurer
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PRODUCT SUPPLEMENT DATED December 30, 1998
TO THE MASTER AGREEMENT DATED December 30, 1998
BETWEEN COMDISCO, INC ("COMDISCO") AND
Network Plus, Inc. ("CUSTOMER")
SECTION 1. PROPERTY LEASED
Comdisco leases to Customer all of the Products described on any Schedule
entered into pursuant to the terms of this Product Supplement.
SECTION 2. TERM
On the Commencement Date Customer will be deemed to accept the Products,
will be bound to its rental obligations for the Products and the term of a
Schedule will begin and continue through the Initial Term and thereafter
until terminated by either party upon prior written notice received during
the Notice Period. No termination may be effective prior to the
expiration of the Initial Term.
SECTION 3. RENT AND PAYMENT
Rent is due and payable in advance, in immediately available funds, on the
first day of each Rent Interval to the payee and at the location specified
in Comdisco's invoice. Interim Rent is due and payable when invoiced. If
any payment is not made when due, Customer will pay interest at the
Overdue Rate.
SECTION 4. SELECTION AND WARRANTY AND DISCLAIMER OF WARRANTIES
4.1 Selection. Customer acknowledges that it has selected the Products
and disclaims any reliance upon statements made by Comdisco.
4.2 Warranty and Disclaimer of Warranties. Comdisco warrants to
Customer that, so long as Customer is not in default, Comdisco will not
disturb Customer's quiet and peaceful possession, and unrestricted use of
the Products. To the extent permitted by the manufacturer, Comdisco
assigns to Customer during the term of the Schedule any manufacturer's
warranties for the Products. Comdisco is not responsible for any
liability, claim, loss, damage or expense of any kind (including strict
liability in tort) caused by the Products except for any loss or damage
caused by the negligent acts of Comdisco.
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SECTION 5. TITLE AND ASSIGNMENT
5.1 Title. Customer holds the Products subject and subordinate to the
rights of the Owner, Comdisco, any Assignee and any Secured Party.
Customer authorizes Comdisco, as Customer's agent, to prepare, execute and
file in Customer's name precautionary Uniform Commercial Code financing
statements showing the interest of the Owner, Comdisco, and any Assignee
or Secured Party in the Products and to insert serial numbers in Schedules
as appropriate. Except as provided in Sections 5.2 and 7.2, Customer
will, at its expense, keep the Products free and clear from any liens or
encumbrances of any kind (except any caused by Comdisco) and will
indemnify and hold Comdisco, Owner, any Assignee and Secured Party
harmless from and against any loss caused by Customer's failure to do so.
5.2 Relocation or Sublease. Upon prior written notice, Customer may
relocate Products to any location within the continental United States
provided (i) the Products will not be used by an entity exempt from
federal income tax and (ii) all additional costs (including any
administrative fees, additional taxes and insurance coverage) are
reconciled and promptly paid by Customer.
5.3 Customer may sublease the Products upon the reasonable consent of
Comdisco and the Secured Party. Such consent to sublease will be granted
if: (i) Customer meets the relocation requirements set out above, (ii)
the sublease is expressly subject and subordinate to the terms of the
Schedule, (iii) Customer assigns its rights in the sublease to Comdisco
and the Secured Party as additional collateral and security, (iv)
Customer's obligation to maintain and insure the Products is not altered,
(v) all financing statements required to continue the Secured Party's
prior perfected security interest are filed, and (vi) the sublease is not
to a leasing entity affiliated with the manufacturer of the Products
described on the Schedule. Comdisco acknowledges Customer's right to
sublease for a term which extends beyond the expiration of the Initial
Term. If Customer subleases the Products for a term extending beyond the
expiration of such Initial Term of the applicable Schedule, Customer shall
remain obligated upon the expiration of the Initial Term to return such
Products, or, at Comdisco's sole discretion to (i) return Like Products or
(ii) negotiate a mutually acceptable lease extension or purchase. If the
parties cannot mutually agree upon the terms of an extension or purchase,
the term of the Schedule will extend upon the original terms and
conditions until terminated pursuant to Section 2.
No relocation or sublease will relieve Customer from any of its
obligations under this Product Supplement and the applicable Schedule.
5.3 Assignment by Comdisco. The terms and conditions of each Schedule
have been fixed by Comdisco in order to permit Comdisco to sell and/or
assign or transfer its interest or grant a security interest in each
Schedule and/or the Products to a Secured Party or Assignee. In that
event the term Comdisco will mean the Assignee and any Secured Party.
However, any assignment, sale, or other transfer by Comdisco will not
relieve Comdisco of its obligations to Customer and will not materially
change Customer's duties or materially increase the burdens or risks
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imposed on Customer. The Customer consents to and will acknowledge such
assignments in a written notice given to Customer. Customer also agrees
that:
(a) The Secured Party will be entitled to exercise all of Comdisco's
rights, but will not be obligated to perform any of the obligations of
Comdisco. The Secured Party will not disturb Customer's quiet and
peaceful possession and unrestricted use of the Products so long as
Customer is not in default and the Secured Party continues to receive all
Rent payable under the Schedule;
(b) Customer will pay all Rent and all other amounts payable to the
Secured Party, despite any defense or claim which it has against Comdisco.
Customer reserves its right to have recourse directly against Comdisco for
any defense or claim; and
(c) Subject to and without impairment of Customer's leasehold rights in
the Products, Customer holds the Products for the Secured Party to the
extent of the Secured Party's rights in the Products.
SECTION 6. NET LEASE AND TAXES
6.1 Net Lease. Each Schedule constitutes a net lease. Customer's
obligation to pay Rent and all other amounts is absolute and unconditional
and is not subject to any abatement, reduction, set-off, defense,
counterclaim, interruption, deferment or recoupment for any reason
whatsoever.
6.2 Taxes. Comdisco will file all personal property tax returns for the
Products and pay all property taxes due. Customer will reimburse Comdisco
for property taxes within thirty (30) days of receipt of an invoice.
SECTION 7. CARE, USE AND MAINTENANCE, ATTACHMENTS AND RECONFIGURATIONS
AND INSPECTION BY COMDISCO
7.1 Care, Use and Maintenance. Customer will maintain the Products in
good operating order and appearance, protect the Products from
deterioration, other than normal wear and tear, and will not use the
Products for any purpose other than that for which it was designed. If
commercially available, Customer will maintain in force a standard
maintenance contract with the manufacturer of the Products, or another
party acceptable to Comdisco, and upon request will provide Comdisco with
a complete copy of that contract. If Customer has the Products maintained
by a party other then the manufacturer, Customer agrees to pay any costs
necessary for the manufacturer to bring the Products to then current
release, revision and engineering change levels, and to re-certify the
Products as eligible for manufacturer's maintenance at the expiration of
the lease term. The lease term will continue upon the same terms and
conditions until recertification has been obtained.
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7.2 Attachments and Reconfigurations. Upon prior written notice to
Comdisco, Customer may reconfigure and install Attachments on the
Products. In the event of such a Reconfiguration or Attachment, Customer
shall, upon return of the Products, at its expense, restore the Products
to the original configuration specified on the Schedule in accordance with
the manufacturer's specifications and in the same operating order, repair
and appearance as when installed (normal wear and tear excluded). If any
parts are removed from the Products during the Reconfiguration or
Attachment, the restoration will include, at Customer's option, the
installation of either the original removed parts or Like Parts.
Alternatively, with Comdisco's prior written consent which will not be
unreasonably withheld, Customer may return the Products with any
Attachment or upgrade. If any parts of the Products are removed during a
Reconfiguration or Attachment, Comdisco may require Customer to provide
additional security, satisfactory to the Comdisco, in order to ensure
performance of Customer's obligations set forth in this subsection.
Neither Attachments nor parts installed on Products in the course of
Reconfiguration shall be accessions to the Products.
However, if the Reconfiguration or Attachment (i) adversely affects
Comdisco's tax benefits relating to the Products; (ii) is not capable of
being removed without causing material damage to the Products; or (iii) if
at the time of the Reconfiguration or Attachment the manufacturer does not
offer on a commercial basis a means for the removal of the additional
items; then such Reconfiguration or Attachment is subject to the prior
written consent of Comdisco.
7.3 Inspection by Comdisco. Upon request, Customer, during reasonable
business hours and subject to Customer's security requirements, will make
the Products and its related log and maintenance records available to
Comdisco for inspection.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF CUSTOMER
Customer represents and warrants that for each Schedule entered into under
this Product Supplement:
(a) The execution, delivery and performance of the Customer have been
duly authorized by all necessary corporate action;
(b) The individual executing was duly authorized to do so;
(c) The Master Agreement, Product Supplement and each Schedule
constitute legal, valid and binding agreements of the Customer enforceable
in accordance with their terms; and
(d) The Products are personal property and when subjected to use by the
Customer will not be or become fixtures under applicable law.
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SECTION 9. DELIVERY AND RETURN OF PRODUCTS
Customer assumes the full expense of transportation and in-transit
insurance to Customer's premises and for installation of the Products.
Upon expiration or termination of each Schedule, Customer will, at
Comdisco's instructions and at Customer's expense (including
transportation and in-transit insurance), have the Products deinstalled,
audited by the manufacturer, packed and shipped in accordance with the
manufacturer's specifications and returned to Comdisco in the same
operating order, repair and appearance as when installed (ordinary wear
and tear excluded), to a location within the continental United States as
directed by Comdisco. All items returned to Comdisco in addition to the
Products become property of Comdisco.
SECTION 10. LABELING
Upon request, Customer will xxxx the Products indicating Comdisco's
interest. Customer will keep all Products free from any other marking or
labeling which might be interpreted as a claim of ownership.
SECTION 11. INDEMNITY
Customer will indemnify and hold Comdisco, any Assignee and any Secured
Party harmless from and against any and all claims, costs, expenses,
damages and liabilities, including reasonable attorney's fees, arising out
of the ownership (for strict liability in tort only), selection,
possession, leasing, operation, control, use, maintenance, delivery,
return or other disposition of the Products. However, Customer is not
responsible to a party indemnified hereunder for any claims, costs,
expenses, damages and liabilities occasion by the negligent acts of such
indemnified party. Customer agrees to carry bodily injury and property
damage liability insurance during the term of the Schedule in amounts and
against risks customarily insured against by the Customer on Products
owned by it. Any amounts received by Comdisco under that insurance will
be credited against Customer's obligations under this Section.
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SECTION 12. RISK OF LOSS
12.1 Customer's Risk of Loss. If the Schedule indicates that the
Customer has responsibility for the risk of loss of the Products, then the
following terms will apply:
Effective upon delivery and until the Products are returned, Customer
relieves Comdisco of responsibility for all risks of physical damage to or
loss or destruction of the Products. Customer will carry casualty
insurance for the Products in an amount not less than the Casualty Value.
All policies for such insurance will name Comdisco and any Secured Party
as additional insured and as loss payee, and will provide for at least
thirty (30) days prior written notice to Comdisco of cancellation or
expiration. The Customer will furnish appropriate evidence of such
insurance.
Customer shall promptly repair any damaged Product unless such Product has
suffered a Casualty Loss. Within fifteen (15) days of a Casualty Loss,
Customer will provide written notice of that loss to Comdisco and Customer
will, at Comdisco's option, either (a) replace the damaged Product with
Like Products and marketable title to the Like Products will automatically
vest in Comdisco or (b) pay the Casualty Value and after that payment and
the payment of all other amounts due and owing, Customer's obligation to
pay further Rent for the damaged Product will cease.
12.2 Comdisco's Risk of Loss. If the Schedule indicates that Comdisco
has responsibility for the risk of loss of the Products, then the
following terms will apply:
Effective upon delivery and throughout the Initial Term of a Schedule and
any extension, Comdisco agrees to insure the Products against physical
damage to or loss or destruction due to external cause as specified by the
terms of Comdisco's then current insurance policy. Comdisco relieves
Customer of responsibility for physical damage to or loss or destruction
of Products reimbursed by that insurance. Customer will give Comdisco
prompt notice of any damage, loss or destruction to any Product and
Comdisco will determine within fifteen (15) days of its receipt of that
notice whether the item has suffered a Casualty Loss. If any Product
suffers damage or a Casualty Loss which is reimbursable under Comdisco's
insurance, upon payment by Customer of Comdisco's deductible, Comdisco
will: (i) (for damaged Products) arrange and pay for the repair of any
damaged Product; or (ii) (for any Casualty Loss) at Comdisco's option
either replace the damaged Product with Like Products, or upon payment of
all other amounts due by Customer terminate the relevant Schedule as it
relates to the damaged Product.
If any Product suffers damage or a Casualty Loss which is not reimbursable
under Comdisco's insurance, then Customer will comply with the provisions
of the last paragraph of Section 12.1 regarding repair, replacement or
payment of Casualty Value.
If Comdisco fails to maintain insurance coverage as required by this
subsection 12.2, Customer will assume such risk of loss and, at the
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request of any Assignee or Secured Party, will promptly provide insurance
coverage. This paragraph does not relieve Comdisco of its obligations to
maintain coverage of the Products.
SECTION 13. DEFAULT, REMEDIES AND MITIGATION
13.1 Default. The occurrence of any one or more of the following Events
of Default constitutes a default under a Schedule:
(a) Customer's failure to pay Rent or other amounts payable by Customer
when due if that failure continues for ten (10) days after written notice;
or
(b) Customer's failure to perform any other term or condition of the
Schedule or the material inaccuracy of any representation or warranty made
by the Customer in the Schedule or in any document or certificate
furnished to the Comdisco hereunder if that failure or inaccuracy
continues for fifteen (15) days after written notice; or
(c) An assignment by Customer for the benefit of its creditors, the
failure by Customer to pay its debts when due, the insolvency of Customer,
the filing by Customer or the filing against Customer of any petition
under any bankruptcy or insolvency law or for the appointment of a trustee
or other officer with similar powers, the adjudication of Customer as
insolvent, the liquidation of Customer, or the following of any action for
the purpose of the foregoing; or
(d) The occurrence of an Event of Default under any Schedule or other
agreement between Customer and Comdisco or its Assignee or Secured Party.
13.2 Remedies. Upon the occurrence of any of the above Events of
Default, Comdisco, at its option, may:
(a) enforce Customer's performance of the provisions of the applicable
Schedule by appropriate court action in law or in equity;
(b) recover from Customer any damages and or expenses, including Default
Costs;
(c) with notice and demand, recover all sums due and accelerate and
recover the present value of the remaining payment stream of all Rent due
under the defaulted Schedule (discounted at the same rate of interest at
which such defaulted Schedule was discounted with a Secured Party plus any
prepayment fees charged to Comdisco by the Secured Party or, if there is
no Secured Party, then discounted at 6%) together with all Rent and other
amounts currently due as liquidated damages and not as a penalty;
(d) with notice and process of law and in compliance with Customer's
security requirements, Comdisco may enter Customer's premises to remove
and repossess the Products without being liable to Customer for damages
due to the repossession, except these resulting from Comdisco's, its
assignees', agents' or representatives' negligence; and
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(e) pursue any other remedy permitted by law or equity.
The above remedies, in Comdisco's discretion and to the extent permitted
by law, are cumulative and may be exercised successively or concurrently.
13.3 Mitigation. Upon return of the Products pursuant to the terms of
Section 13.2, Comdisco will use its best efforts in accordance with its
normal business procedures (and without obligation to give any priority to
such Products) to mitigate Comdisco's damages as described below. EXCEPT
AS SET FORTH IN THIS SECTION, CUSTOMER HEREBY WAIVES ANY RIGHTS NOW OR
HEREAFTER CONFERRED BY STATUTE OR OTHERWISE WHICH MAY REQUIRE COMDISCO TO
MITIGATE ITS DAMAGES OR MODIFY ANY OF COMDISCO'S RIGHTS OR REMEDIES STATED
HEREIN. Comdisco may sell, lease or otherwise dispose of all or any part
of the Products at a public or private sale for cash or credit with the
privilege of purchasing the Products. The proceeds from any sale, lease
or other disposition of the Products are defined as either:
(a) if sold or otherwise disposed of, the cash proceeds less the Fair
Market Value of the Products at the expiration of the Initial Term less
the Default Costs; or
(b) if leased, the present value (discounted at three points over the
prime rate as referenced in the Wall Street Journal at the time of the
mitigation) of the rentals for a term not to exceed the Initial Term, less
the Default Cost.
Any proceeds will be applied against liquidated damages and any other sums
due to Comdisco from Customer. However, Customer is liable to Comdisco
for, and Comdisco may recover, the amount by which the proceeds are less
than the liquidated damages and other sums due to Comdisco from Customer.
SECTION 14. ADDITIONAL PROVISIONS
14.1 Binding Nature. Each Schedule is binding upon, and inures to the
benefit of Comdisco and its assigns. CUSTOMER MAY NOT ASSIGN ITS RIGHTS
OR OBLIGATIONS.
14.2 Counterparts. Any Schedule may be executed in any number of
counterparts, each of which will be deemed an original but all such
counterparts together constitute one and the same instrument. If Comdisco
grants a security interest in all or any part of a Schedule, the Products
or sums payable thereunder, only that counterpart Schedule marked "Secured
Party's Original" can transfer Comdisco's rights and all other
counterparts will be marked "Duplicate".
14.3 Nonspecific Features and Licensed Products. If the Products are
supplied from Comdisco's inventory and contains any features not specified
in the Schedule, Customer grants Comdisco the right to remove any such
features. Any removal will be performed by the manufacturer or another
party acceptable to Customer, upon the request of Comdisco, at a time
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convenient to Customer, provided that Customer will not unreasonably delay
the removal of such features.
Customer acknowledges that the Products may contain or include software or
other licensed products of a third party. Customer will obtain no title
to the software or licensed products which at all times remains the
property of the owner of the software or licensed products. A license
from the owner may be required and it is Customer's responsibility to
obtain any required license before the use of the software or licensed
product.
14.4 Additional Documents. Customer will, upon execution of this
Supplement and as may be requested thereafter, provide Comdisco with a
secretary's certificate of incumbency and authority and any other
documents reasonably requested by Comdisco. Upon the execution of each
Schedule with an aggregate Rent in excess of $2,000,000, Customer will
provide Comdisco with an opinion from Customer's counsel regarding the
representations and warranties in Section 8. Customer will furnish, upon
request, audited financial statements for the most recent period.
14.5 Comdisco's Right to Match. Customer's rights under Section 5.2 and
7.2 are subject to Comdisco's right to match any sublease or upgrade
proposed by a third party. Customer will provide Comdisco with the terms
of the third party offer and Comdisco will have three (3) business days to
match the offer. Customer shall obtain such upgrade from or sublease the
Products to Comdisco if Comdisco has timely matched the third party offer.
SECTION 15. DEFINITIONS
Assignee - means an entity to whom Comdisco has sold or assigned its
rights as owner and lessor of the Products.
Attachment - means any accessory, equipment or device and the installation
thereof that does not impair the original function or use of the Products
and is capable of being removed without causing material damage to the
Products and is not an accession to the Products.
Casualty Loss - means the irreparable loss or destruction of Products.
Casualty Value - means the greater of the aggregate Rent remaining to be
paid for the balance of the lease term or the Fair Market Value of the
Products immediately prior to the Casualty Loss. However, if a Casualty
Value Table is attached to the relevant Schedule its terms will control.
Commencement Certificate - means the Comdisco provided certificate which
must be signed by Customer within ten (10) days of the Commencement Date
as requested by Comdisco.
Commencement Date - is defined in each Schedule.
15
Default Costs - means reasonable attorney's fees and remarking costs
resulting from a Customer default or Comdisco's enforcement of its
remedies.
Event of Default - means the events described in Subsection 13.1.
Fair Market Value - means the aggregate amount which would be obtainable
in an arm's-length transaction between an informed and willing buyer/user
and an informed and willing seller under no compulsion to sell.
Initial Term - means the period of time beginning on the first day of the
first full Rent Interval following the Commencement Date for all Products
and continuing for the number of Rent Intervals indicated on a Schedule.
Installation Date - means the day on which Products are installed and
qualified for a commercially available manufacturer's standard maintenance
contract or warranty coverage, if available.
Interim Rent - means the pro-rata portion of Rent due for the period from
the Commencement Date through but not including the first day of the first
full Rent Interval included in the Initial Term.
Licensed Products - means any software or other licensed products attached
to the Products.
Like Part - means a substituted part which is lien free and of the same
manufacturer and part number as the removed part, and which when installed
on the Products will be eligible for maintenance coverage with the
manufacturer of the Products.
Like Products - means replacement Products which are lien free and of the
same modal, type, configuration and manufacture as Products.
Notice Period - means the time period described in a Schedule during which
Customer may give Comdisco notice of the termination of the term of that
Schedule.
Overdue Rate - means the lesser of 18% per year or the maximum rate
permitted by the law of the state where the Products are located.
Owner - means the owner of the Products.
Products - means the property described on a Schedule and any replacement
for that property required or permitted by this Product Supplement or a
Schedule but not including any Attachment.
Reconfiguration - means any change to Products that would upgrade or
downgrade the performance capabilities of the Products in any way.
Rent - means the rent, including Interim Rent, Customer will pay for the
Products expressed in a Schedule either as a specific amount or an amount
equal to the amount which Comdisco pays for the Products multiplied by a
16
lease rate factor plus all other amounts due to Comdisco under this
Product Supplement or a Schedule.
Rent Interval - means a full calendar month or quarter as indicated on a
Schedule.
Schedule - means a Schedule which incorporates all of the terms and
conditions of this Product Supplement and the Master Agreement and, for
purposes of Section 14.2, its associated Commencement Certificate(s).
Secured Party - means an entity to whom Comdisco has granted a security
interest in a Schedule and related Products for the purpose of securing a
loan.
The Product Supplement is issued pursuant to the Master Agreement
identified above. All of the terms and conditions of the Master Agreement
are incorporated herein and made a part hereof.
Network Plus, Inc. COMDISCO, INC.,
---------------------------
Customer
By: Xxxxxx Xxxxxxx By: Xxxxxxxx X. Xxxxxxx
Title: Vice President, CFO Title: Senior Vice President
and Treasurer
17
Addendum dated December 30, 1998
to the Master Agreement dated as of December 30, 1998
and the Product Supplement dated as of December 30, 1998
between Network Plus, Inc. ("Customer")
and Comdisco, Inc. ("Comdisco")
I. The terms and conditions of the above-referenced Master Agreement
are amended and modified as follows:
1. Section 1.3, "Changes"
At the end of the first sentence, insert the words "and signed by
Comdisco and Customer".
2. Section 2.3, "Expenses"
At the end of this Section, insert the words "only with respect to a
Schedule for Services".
3. Section 4.4, "Liability"
Add the following after the first sentence: "The foregoing provision
will not apply in connection with any Schedules under a Product
Supplement"
4. Section 6.2, "Confidentiality"
Add the following at the end of the Section: "Notwithstanding the
foregoing, either party may disclose such confidential information
to the extent it is required to do so by applicable law (including
SEC rules and regulations) or by court order."
5. Section 7, "Proprietary Rights Protection"
Add the following at the beginning of the Section: "Notwithstanding
the limitations in Section 4.4 hereof,".
6. Section 8, "Termination"
In line 4, before the word "written" insert the words "receipt by
addressee of". In line 5, after the number "(10)", insert the word
"business". In line 10, after the word "will" insert the words
"upon demand".
18
7. Section 9, "Miscellaneous"
a. In paragraph 9.2, add the following at the end: ", which shall
not be unreasonably withheld".
b. In paragraph 9.5, in line 3, after the number "(3)", insert
the word "business".
c. In paragraph 9.8, in line 7, after the word "after" insert the
words "the affected party knew or had reason to know of".
Delete the word "arose" in the last line.
d. In paragraph 9.10, in line 2 after the word "form" insert the
words" or on any invoice or other form provided by Comdisco
(other than the Master Agreement, Supplements, or Schedules)
which purport to modify, delete or add to any agreement
executed by both parties". Add the following at the end: ",
unless such pre-printed terms have been agreed to in writing
by the parties with the parties intending to be bound by such
pre-printed terms."
e. Delete paragraph 9.11 in its entirety and replace with the
following: "Comdisco will not be considered in default under
this Agreement due to any failure in its performance as a
consequence of any fire, flood, natural disaster, labor
dispute, public disturbance, declared or undeclared war, or
similar occurrence, or as a consequence of any other similar
occurrence entirely beyond the reasonable control of
Comdisco."
II. The terms and conditions of the above-referenced Product Supplement
are amended and modified as follows:
1. Section 4.1, "Selection"
Add the following at the end of the Section: "with respect to the
selection thereof."
2. Section 4.2, "Warranty and Disclaimer of Warranties"
Add the following after the second sentence: "Comdisco appoints
Customer as Comdisco's agent to assert, during the term of the
applicable Schedule, any right Comdisco may have to enforce the
manufacturer's warranties, if any, provided, however, that Customer
will indemnify and hold Comdisco or its assignee harmless from and
against any and all claims, costs, expenses, damages, losses and
liabilities incurred or suffered by Comdisco as a result of or
incident to any action by Customer in connection therewith, except
any claims, costs, expenses damages, losses and liabilities
resulting from the gross negligence of Comdisco."
19
3. Section 5.2, "Relocation or Sublease"
In line 4 of the first paragraph, after the word "costs" insert the
words "to Comdisco caused solely by such relocations".
4. Section 5.3, "Assignment by Comdisco"
a. In the last line of the first paragraph, after the words
"written notice given to Customer" insert the words "provided
that the assignee is a financial institution with a net worth
of at least $250,000,000.00."
b. Add the following at the end of paragraph (c): ", and will not
result in any additional obligations on the part of Customer".
5. Section 6.1, "Net Lease"
Add the following at the end of the Section: "Notwithstanding the
foregoing, nothing herein shall be deemed to limit Customer's rights
and remedies as against Comdisco or Assignee in any independent
action or proceeding, such rights and remedies being expressly
reserved by Customer."
6. Section 6.2, "Taxes"
In line 3 before the word "within" insert the words "for the
Products".
7. Section 7.2, "Attachments and Reconfigurations"
In the second paragraph, line 2 after the word "Products" insert the
words "in any material respect".
8. Section 8, "Representations and Warranties of Customer"
Paragraph (d) is deleted in its entirety.
9. Section 9, "Delivery and Return of Products"
a. Add the following at the beginning of the Section: "Unless
otherwise specified in the purchase agreement between Customer
and the Product supplier,".
b. In line 4, after the word "transportation" insert the words
"by a reputable carrier".
c. In line 9, after the word "Comdisco" insert the words "to the
Chicago metropolitan area".
d. The last sentence is deleted in its entirety.
20
10. Section 12.2, "Comdisco's Risk of Loss"
In the second paragraph, line 10 after the word "will" insert the
words "as soon as practicable".
11. Section 13.1, "Default"
a. In paragraph (a) after the number "(10)" insert the word
"business" and after the word "notice" insert the words "is
received".
b. In paragraph (b), line 1, after the word "other" insert the
word "material"; in line 4 after the number "(15)" insert the
word "business".
c. In paragraph (c), line 2, after the word "to" insert the word
"generally"; in line 4 after the word "law" and in line 5
after the word "powers", insert the words "(with respect to
any filing against Customer which continues for sixty (60)
days)"; in line 6 after the word "action" insert the words "by
the Customer".
12. Section 13.2, "Remedies"
a. In the first sentence after the word "occurrence" insert the
words "and the continuance".
b. In paragraph (a), add the following at the end: "to preserve
and protect Comdisco's rights in the Products".
c. In paragraph (b), line 1, delete the words "accelerate and
recover"; in line 6 delete from the word "together" through
the end of the paragraph.
13. Section 13.3, "Mitigation"
In paragraph (b), line 1, delete the word "three" and insert the
words "one and one-half".
14. Section 14.1, "Binding Nature"
Add the following at the end of the Section: "(except to its
successor pursuant to a merger, consolidation or sale of all or
substantially all of its assets with equal or better
creditworthiness of Customer at the time of the assignment) without
obtaining the prior written consent of Comdisco, which shall not be
unreasonably withheld."
15. Section 14.3, "Nonspecific Features and Licensed Products"
In the first paragraph, line 2, delete the word "contains" and
replace with the word "contain"; in line 3 after the word "features"
insert the words "at Comdisco's cost".
21
16. Section 15, "Definitions"
a. In the definition of "Default Costs" delete the words "a
Customer default or".
b. Delete the definition of "Installation Date" in its entirety.
Network Plus, Inc. Comdisco, Inc.
By: Xxxxxx Xxxxxxx By: Xxxxxxxx X. Xxxxxxx
Title: Vice President, CFO Title: Senior Vice President
and Treasurer
Date: 1/6/99 Date: 1/26/99
22
GUARANTY
In consideration for COMDISCO, INC. ("COMDISCO") entering into the
Master Agreement and Product Supplement dated
December 30, 1998 and all of its related Equipment Schedules (the "Lease")
with Network Plus, Inc. (as "LESSEE"), a wholly-owned subsidiary of the
undersigned, the undersigned hereby guarantees the prompt and complete
performance by LESSEE of all the terms and conditions of the Lease to be
performed by it, including but not limited to, the prompt payment of all
rentals and other sums payable.
This is a continuing, absolute and unconditional guaranty of
performance and payment and not of collection. The undersigned
specifically waives any right to setoff or counterclaim, and any defense
for changes in applicable law or any other circumstances which might
constitute a legal or equitable defense or discharge of a guarantor or
surety. Notwithstanding the foregoing, the undersigned retains the right
to maintain an independent cause of action against COMDISCO. The
undersigned waives any right to require a proceeding first against LESSEE
or to exhaust any security for the performance of the obligations of
LESSEE, and waives notice of acceptance and of defaults. The undersigned
agrees that the liability of the undersigned shall not be affected or
decreased by any amendment, termination, extension, renewal, waiver or
modification of the Lease or the rejection or disaffirmance of the Lease
in bankruptcy or like proceedings and that certain obligations under the
Lease may be accelerated upon any nonpayment by LESSEE. This Guaranty
shall be specifically assignable to and inure to the benefit of Lessor's
Assignee and Secured Party as set forth in the Lease and is irrevocable so
long as there are any obligations of LESSEE remaining under the Lease
unless otherwise agreed in writing by the parties.
This guaranty shall be governed by and construed in accordance with
the laws of the State of Illinois.
Dated: December 30, 1998
Network Plus Corp.
(Guarantor)
By: Xxxxxx Xxxxxxx
Title: Vice President, CFO
and Treasurer
