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EXHIBIT 10.65
NO. 3402
MASTER AGREEMENT TO LEASE EQUIPMENT
THIS MASTER AGREEMENT TO LEASE EQUIPMENT (this "AGREEMENT") is entered
into as of January 17, 2001 by and between CISCO SYSTEMS CAPITAL CORPORATION
("LESSOR"), having its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Drive,
Mailstop SJC2, 3rd Floor, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and AppliedTheory
Corporation, a Delaware corporation ("LESSEE"), having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
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 personal property described in the lease schedule(s) (each, a
"SCHEDULE") to be entered into from time to time into which this Agreement is
incorporated (each Schedule, together with this Agreement, a "LEASE"), together
with all substitutions, replacements, repairs, parts and attachments,
improvements and accessions thereto (the "EQUIPMENT"). Capitalized terms not
otherwise defined in this Agreement have the meanings specified in the
applicable Schedule. Each Lease shall constitute a separate, distinct, and
independent lease and contractual obligation of Lessee. Except as expressly set
forth in any Lease, Lessor shall at all times retain the full legal title to the
Equipment, it being expressly agreed by both parties that each Lease is an
agreement of lease only.
1.2 EQUIPMENT PROCUREMENT. Lessee has ordered or shall order the
Equipment pursuant to one or more purchase orders or purchase contracts
(together, "PURCHASE ORDER") to or with Cisco Systems, Inc., or a Cisco-approved
reseller (together, "VENDOR"), which Purchase Order shall be promptly delivered
to Lessor. Subject to Lessor's acceptance of such Equipment, as evidenced by its
preparation and delivery to Lessee for signature of a Schedule relating to such
Equipment, Lessee shall be deemed to have assigned to Lessor all Lessee's right,
title and interest in and to the Equipment and the Purchase Order; provided that
Lessor shall have no obligations under the Purchase Order. Lessee shall execute
and return to Lessor (a) each Schedule within five days of Lessee's receipt of
same, and (b) each Certificate of Acceptance within five days of receipt and
acceptance of the applicable Equipment. If for whatever reason the lease
transaction in respect of the Equipment is not consummated, (i) Lessee shall
remain solely liable to pay Vendor in accordance with the Purchase Order, and
(ii) upon receipt of satisfactory evidence of such payment by Lessee, Lessor
shall assign to Lessee, without warranty, its right, title and interest in and
to the Equipment and the Purchase Order.
1.3 TERM OF LEASE. The Original Term of each Lease shall begin on the
Commencement Date as specified in the applicable Schedule and, subject to
Sections 3.5 and
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4.2, shall terminate on the date specified in the applicable Schedule. If so
provided in the applicable Schedule, the Original Term for any Lease may be
succeeded by one or more Extended Terms. Subject to Sections 3.5 and 4.2 and any
express provisions of the Schedule, no Lease may be terminated by Lessor or
Lessee, for any reason whatsoever, prior to the end of the Original Term or any
pending Extended Term.
1.4 RENTAL PAYMENTS. Lessee shall pay Lessor Rent for the Equipment in
the amounts and at the times specified in the applicable Schedule. All Rent and
other amounts payable by Lessee to Lessor hereunder shall be paid to Lessor at
the address specified above, or at such other place as Lessor may designate in
writing to Lessee from time to time.
1.5 RETURN OF EQUIPMENT. Upon expiration of the Lease Term, Lessee
shall immediately return the Equipment to Lessor in the condition and at the
place provided in Section 3.3.
II. DISCLAIMERS AND WARRANTIES; INTELLECTUAL PROPERTY
2.1 DISCLAIMERS; WARRANTIES. Lessee represents and acknowledges that
the Equipment is of a size, design, capacity and manufacture selected by it, and
that it is satisfied that the Equipment is suitable for its purposes. LESSEE
LEASES THE EQUIPMENT AS IS, AND, NOT BEING THE MANUFACTURER OF THE EQUIPMENT,
THE MANUFACTURER'S AGENT OR THE SELLER'S AGENT, LESSOR MAKES NO WARRANTY OR
REPRESENTATION, 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 ANY DIRECT, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS. Lessee shall look solely to the
manufacturer or the supplier of the Equipment for correction of any problems
that may arise with respect thereto, and all transferable manufacturer and
supplier warranty rights are, to the extent such rights have been transferred to
Lessor, hereby assigned without representation or warranty by Lessor to Lessee
for the Lease Term, which warranties Lessee is authorized to enforce if and when
there exists no Event of Default. Any such enforcement shall be at Lessee's sole
cost and expense.
2.2 INTELLECTUAL PROPERTY. Lessee acknowledges that neither this
Agreement nor any Lease conveys any explicit or implicit license for the use of
software or other intellectual property of Cisco Systems, Inc. or its affiliates
relating to the Equipment and that such license rights, to the extent they
exist, are contained in separate documentation entered into between Lessee and
Cisco Systems, Inc. or other persons. LESSOR MAKES NO WARRANTIES OR
REPRESENTATIONS WHATSOEVER WITH RESPECT TO THE INTELLECTUAL PROPERTY RIGHTS,
INCLUDING ANY PATENT, COPYRIGHT AND TRADEMARK RIGHTS, OF ANY THIRD PARTY WITH
RESPECT TO THE EQUIPMENT, WHETHER RELATING TO INFRINGEMENT OR OTHERWISE. Lessor
shall, when reasonably requested in writing by Lessee, provided there exists no
Event of Default and an indemnity satisfactory to Lessor is delivered by Lessee,
and at Lessee's cost and expense, enforce rights of indemnification, if any, for
patent, copyright or other intellectual property
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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. LESSEE OBLIGATIONS
3.1 NET LEASE; PAYMENTS UNCONDITIONAL. EACH LEASE IS A NET LEASE, AND
ALL COSTS, EXPENSES AND LIABILITIES RELATING TO THE EQUIPMENT, INCLUDING IN
RESPECT OF TAXES, INSURANCE AND MAINTENANCE, SHALL BE BORNE SOLELY BY LESSEE.
LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER SUMS THEREUNDER, AND THE RIGHTS OF
LESSOR IN AND TO SUCH PAYMENTS, SHALL BE ABSOLUTE AND UNCONDITIONAL, AND SHALL
NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION, SETOFF, DEFENSE, COUNTERCLAIM,
INTERRUPTION, DEFERMENT OR RECOUPMENT, FOR ANY REASON WHATSOEVER.
3.2 USE OF EQUIPMENT. Lessee shall use the Equipment solely in the
conduct of its business, in a manner and for the use contemplated by the
manufacturer thereof, and in compliance with all laws, rules and regulations of
every governmental authority having jurisdiction over the Equipment or Lessee
and with the provisions of all policies of insurance carried by Lessee pursuant
to Section 3.6.
3.3 DELIVERY; INSTALLATION; RETURN; MAINTENANCE AND REPAIR; INSPECTION.
Lessee shall be solely responsible, at its own expense, for (a) the delivery of
the Equipment to Lessee, (b) the packing, rigging and delivery of the Equipment
back to Lessor, upon expiration or termination of the Lease Term, in good
repair, condition and working order, ordinary wear and tear 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 Lease Term, Lessee shall ensure that the Equipment is covered by a
maintenance agreement, to the extent available, with the manufacturer of the
Equipment or other party reasonably acceptable to Lessor. Lessee shall, at its
expense, keep the Equipment in good repair, condition and working order,
ordinary wear and tear excepted, and at the expiration or termination of the
Lease Term with respect to any of the Equipment, have such Equipment inspected
and certified acceptable for maintenance service by the manufacturer. If any of
the Equipment, upon its return to Lessor, is not in good repair, condition and
working order, ordinary wear and tear excepted, and so inspected and certified,
Lessee shall be obligated to pay Lessor for the out-of-pocket expenses Lessor
incurs in bringing such Equipment up to such status, but not in excess of the
Casualty Value for such Equipment, promptly after its receipt of an invoice for
such expenses. Lessor shall be entitled to inspect the Equipment at reasonable
times.
3.4 TAXES. Lessee shall pay, and hereby indemnifies Lessor on a net,
after-tax basis, against, and shall hold it harmless from, all license fees,
assessments, and sales, use, property, excise and other taxes and charges, other
than those measured by Lessor's net income, now and hereafter imposed by any
governmental body or agency upon or with respect to any of the Equipment, or the
possession, ownership, use or operation thereof, or any Lease, or the
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consummation of the transactions contemplated by any Lease. Notwithstanding the
foregoing, to the extent required of it by applicable law and in reliance upon
Lessee's disclosure of the location of such Equipment, Lessor shall file
personal property tax returns, and shall pay personal property taxes payable
with respect to the Equipment. Lessee shall pay to Lessor the amount of all such
personal property taxes within 15 days of its receipt of an invoice for such
taxes. For any Lease that is specified as an FMV Lease in the applicable
Schedule, Lessee acknowledges that it is the intent of Lessor, and a material
inducement to Lessor to enter into such Lease, to obtain all state and Federal
income tax benefits of ownership with respect to the Equipment under such Lease,
including entitlement to annual accelerated cost recovery deductions.
3.5 LOSS OF EQUIPMENT. Lessee assumes the risk that, and shall promptly
notify Lessor in writing if, any item of Equipment becomes lost, stolen,
damaged, destroyed or otherwise unfit or unavailable for use from any cause
whatsoever (an "EVENT OF LOSS") after it has been delivered to a common carrier
for shipment to Lessee. Unless the item is damaged and is reparable within a
reasonable period of time in the judgment of Lessor (in which event Lessee shall
promptly cause such item to be repaired and restored to the condition and value
it had prior to such Event of Loss, at its own cost and expense), Lessee shall
pay to Lessor on the Rent payment date following Lessor's receipt of such notice
(or, if none, 30 days after such Event of Loss), an amount equal to the Rent
payment or payments due and payable with respect to such Equipment on or prior
to such date, plus a sum equal to the Casualty Value of such Equipment as of
such date. Upon making such payment, the Rent for such Equipment shall cease to
accrue, the term of the Lease as to such Equipment shall terminate and (except
in the case of loss, unrecovered theft or complete destruction) Lessor shall be
entitled to recover possession of such Equipment in accordance with the
provisions of Section 3.3 above. If Lessor has received the foregoing amount,
Lessee shall be entitled to the proceeds of any recovery in respect of such
Equipment from insurance or otherwise, provided that if the Equipment is subject
to an FMV Lease, Lessee shall be entitled to receive such proceeds only up to
the Casualty Value therefor, any excess amount to be paid to Lessor.
3.6 INSURANCE. Lessee shall obtain and maintain for the Lease Term at
its own expense, property damage and liability insurance and insurance against
loss or damage to the Equipment as a result of fire, explosion, theft, vandalism
and such other risks of loss as are normally maintained on equipment of the type
leased hereunder by companies carrying on the business in which Lessee is
engaged, in such amounts, in such form and with such insurers as shall be
satisfactory to Lessor. Each insurance policy shall name Lessee as insured and
Lessor and its assignees as additional insureds and loss payees thereof as their
interest may appear, and shall provide that it may not be cancelled or altered
without at least 30 days' prior written notice thereof being given to Lessor (or
10 days', in the event of non-payment of premium).
3.7 INDEMNITY. Except with respect to the gross negligence or willful
misconduct of Lessor, Lessee hereby indemnifies, protects, defends and holds
harmless Lessor from and against any and all claims, liabilities (including
negligence, tort and strict liability), demands, actions, suits, and
proceedings, losses, costs, expenses and damages, including reasonable
attorneys' fees and costs (collectively, "CLAIMS"), arising out of, connected
with, or resulting from any Lease or any of the Equipment, or any ancillary or
related software or other intangibles, whether arising before, during or after
the Lease Term (but not Claims relating to events occurring after Lessee
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has returned the Equipment to Lessor in accordance with Section 3.3), including
Claims relating to the manufacture, selection, purchase, delivery, possession,
condition, use, operation, return or other disposition of the Equipment. Each of
the parties shall give the other prompt written notice of any Claim of which it
becomes aware.
3.8 PROHIBITIONS RELATED TO LEASE AND EQUIPMENT. Without the prior
written consent of Lessor, which consent as it pertains to clauses (b) and (d)
below shall not be unreasonably withheld, Lessee shall not: (a) assign,
transfer, or otherwise dispose of any Equipment, the Lease or any rights or
obligations thereunder; (b) sublease any of the Equipment or permit the
Equipment to be controlled by any other person; (c) create or incur, or permit
to exist, any security interest, lien or encumbrance with respect to any of the
Equipment; (d) cause or permit any of the Equipment to be moved from the
location specified in the applicable Schedule; or (e) cause or permit any of the
Equipment to be moved outside the United States.
3.9 IDENTIFICATION. Lessee shall place and maintain permanent markings
provided by Lessor on the Equipment evidencing ownership, security and other
interests therein, as specified from time to time by Lessor.
3.10 ALTERATIONS AND MODIFICATIONS. Lessee shall not make any
additions, attachments, alterations or improvements to the Equipment without the
prior written consent of Lessor, not to be unreasonably withheld. Any addition,
attachment, alteration or improvement to any item of Equipment shall belong to
and become the property of Lessor unless, at the request of Lessor, it is
removed prior to the return of such item of Equipment by Lessee. Lessee shall be
responsible for all costs relating to such removal and shall restore such item
of Equipment to the condition and value otherwise required hereunder.
3.11 PERSONAL PROPERTY. Lessee acknowledges and represents that the
Equipment shall be and remain personal property, notwithstanding the manner by
which it may be attached or affixed to realty, and Lessee shall do all acts and
enter into all agreements necessary to ensure that the Equipment remains
personal property. If requested by Lessor with respect to any item of Equipment,
Lessee shall obtain and deliver to Lessor equipment access agreements,
satisfactory to Lessor, from all persons claiming any interest in the real
property on which such item of Equipment is installed or located.
3.12 FINANCIAL STATEMENTS. Lessee shall promptly furnish to Lessor such
financial or other statements regarding the condition and operations of Lessee
and any guarantor of any Lease, and information regarding the Equipment, as
Lessor may from time to time reasonably request.
3.13 LESSEE REPRESENTATIONS. Lessee hereby represents that, with
respect to this Agreement, and each Schedule, certificate evidencing acceptance
of equipment, assignment of purchase order, insurance letter, proposal letter,
UCC financing statement, or other document now or hereafter executed by Lessee
in connection with any Lease (collectively, "LEASE DOCUMENTS"): (a) the
execution, delivery and performance thereof by Lessee or its attorney-in-fact
have been duly authorized by all necessary corporate, partnership or company
action; (b) the person executing such documents is duly authorized to do so; and
(c) such documents constitute legal, valid and binding obligations of Lessee,
enforceable in accordance with their terms.
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IV. DEFAULT AND REMEDIES
4.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "EVENT OF DEFAULT" hereunder and under each Lease: (a) Lessee
fails to pay any Rent or other amount due under any Lease within five days after
it becomes due and payable; (b) any representation or warranty of Lessee made in
any Lease Document proves to have been false or misleading in any material
respect as of the date when it was made; (c) Lessee fails to maintain insurance
as required herein or breaches any of clauses (a), (b) or (e) of Section 3.8;
(d) Lessee fails to perform any other covenant, condition or agreement made by
it under any Lease, and such failure continues for 20 days; (e) bankruptcy,
receivership, insolvency, reorganization, dissolution, liquidation or other
similar proceedings are instituted by or against Lessee, any guarantor of any
Lease or any partner of a partnership Lessee or guarantor, or all or any part of
such person's property, under the Federal Bankruptcy Code or other law of the
United States or of any other competent jurisdiction, and, if such proceeding is
brought against such person, it consents thereto or fails to cause the same to
be discharged within 45 days after it is filed; (f) Lessee materially defaults
under any agreement with respect to the purchase or installation of any of the
Equipment; or (g) Lessee or any guarantor of any Lease, or any of their
respective subsidiaries or other affiliates, defaults under any other instrument
or agreement with Lessor or Cisco Systems, Inc.
4.2 REMEDIES. If an Event of Default exists, and remains uncured for 25
days, Lessor may exercise any one or more of the following remedies, in addition
to those arising under applicable law: (a) proceed, by appropriate court action,
to enforce performance by Lessee of the applicable covenants of any or all of
the Leases; (b) terminate any or all Leases by notice to Lessee and take
possession of any or all of the Equipment and, for such purpose, enter upon any
premises where the Equipment is located with or without notice or process of law
and free from all claims by Lessee or any other person, or require Lessee to
assemble the Equipment and deliver it to Lessor in accordance with Section 3.3;
(c) recover any and all direct, incidental and consequential damages, including
all accrued and unpaid Rent and other amounts owing under any Lease, and (i) for
any Lease that is an FMV Lease, the Equipment for which has not been returned to
Lessor in the condition required hereunder, an amount equal to the Casualty
Value thereof; or (ii) for any Lease that is an FMV Lease, the Equipment for
which has been so returned to Lessor, such amounts as are provided for the
lessee breach of a personal property lease under the Uniform Commercial Code of
the jurisdiction specified in Section 5.11 (the "CODE"), using the Discount Rate
to calculate present values for such purpose; or (iii) for any Lease that is not
an FMV Lease, an amount equal to the present value, discounted at the Discount
Rate, of the sum of all Rent and other payments remaining to be paid under such
Lease through the Lease Term plus the applicable purchase option amount
specified in Paragraph 7 of the Schedule; and (d) sell or re-lease any or all of
the Equipment, through public or private sale or lease transactions, and apply
the proceeds thereof to Lessee's obligations under such Leases or otherwise seek
recovery in accordance with applicable provisions of the Code. Lessee shall
remain liable for any resulting deficiency and Lessor may retain any surplus it
may realize in connection with an FMV Lease. The "DISCOUNT RATE" shall be the
rate for U.S. Treasury obligations having a constant maturity of three months,
as specified in the Federal Reserve Statistical Release H.15 (or replacement
publication) issued most recently prior to the date of termination of the Lease.
Lessee shall pay all costs and expenses (including reasonable attorneys' fees)
incurred by Lessor in retaking possession of, and removing, storing, repairing,
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refurbishing and selling or leasing such Equipment and enforcing any obligations
of Lessee pursuant to any Lease.
V. MISCELLANEOUS
5.1 PERFORMANCE OF LESSEE'S OBLIGATIONS. Upon Lessee's failure to pay
any amount or perform any obligation under any Lease when due, Lessor shall have
the right, but shall not be obligated, to pay such sum or perform such
obligation, whereupon such sum or cost of such performance shall immediately
become due and payable thereunder, with interest thereon at the Default Rate
from the date such payment or performance was made.
5.2 RIGHT TO USE. So long as no Event of Default exists, neither Lessor
nor its assignee shall interfere with Lessee's right to use the Equipment under
any Lease.
5.3 ASSIGNMENT BY LESSOR. Lessor may assign or transfer any or all of
Lessor's interest in this Agreement, any Lease, any Equipment or Rents, without
notice to Lessee. Any assignee of Lessor shall have all of the rights, but none
of the obligations (unless otherwise provided in the applicable assignment), of
a "Lessor" under this Agreement and the applicable Lease, and Lessee agrees that
it will not assert against any assignee any defense, counterclaim or offset that
Lessee may have against Lessor or any preceding assignee, and that upon notice
of such assignment or transfer, it will pay all Rent and other sums due under
this Agreement and the applicable Lease to such assignee or transferee. Lessee
acknowledges that any assignment or transfer by Lessor shall not materially
change Lessee's duties or obligations under this Agreement or any Lease, nor
materially increase the burdens or risks imposed on Lessee.
5.4 FURTHER ASSURANCES. Upon the request of Lessor from time to time,
Lessee shall execute and deliver such further documents and do such further acts
as Lessor may reasonably request in order fully to effect the purposes of this
Agreement or any Lease. Lessee hereby appoints Lessor its attorney in fact,
coupled with an interest, authorized, without any obligation to do so, (a) to
sign on Lessee's behalf and file, record and register financing statements, and
amendments and continuations thereof, and any other documents relating to liens,
security interests or property rights of Lessor, Lessee or any third person with
respect to any Equipment and ancillary property, in accordance with any Uniform
Commercial Code or other code or statute, and (b) to enforce, in its own name or
in the name of Lessee, claims relating to any Equipment against insurers,
manufacturers or other persons, and to make, adjust, settle, compromise and
receive payments as to such claims.
5.5 RIGHTS AND REMEDIES. Each right and remedy granted to Lessor under
any Lease shall be cumulative and in addition to any other right or remedy
existing in equity, at law, by virtue of statute or otherwise, and may be
exercised by Lessor from time to time concurrently or independently and as often
and in such order as Lessor may elect. Any failure or delay on the part of
Lessor in exercising any such right or remedy shall not operate as a waiver
thereof.
5.6 NOTICES. Any notice, request, demand, consent, approval or other
communication provided for or permitted in relation to any Lease shall be in
writing and shall be conclusively deemed to have been received by a party hereto
on the day it is delivered to such party at its address, or received by the
party at such facsimile number, as is set forth in such Lease (or at
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such other addresses or fax numbers such party shall specify to the other party
in writing), or if sent by registered or certified mail, return receipt
requested, on the fifth day after the day on which it is mailed, postage
prepaid, addressed to such party.
5.7 SECTION HEADINGS; INTERPRETATION. Section headings are inserted for
convenience of reference only and shall not affect any construction or
interpretation of any Lease Document. In interpreting the provisions of any
Lease Document, (a) the term "including" is not limiting; (b) references to
"person" include individuals, corporations and other legal persons and entities;
(c) the singular of defined terms includes the plural and vice-versa; and (d)
section and paragraph references are to the document in which such reference
appears, unless the context otherwise requires.
5.8 ENTIRE LEASE. This Agreement, together with the other Lease
Documents, constitute the entire agreement between Lessor and Lessee with
respect to the lease of the Equipment. No waiver or amendment of, or any consent
with respect to, any provision of any Lease Document shall bind either party
unless set forth in a writing, specifying such waiver, consent, or amendment,
signed by both parties. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND NOT
OTHERWISE SPECIFICALLY GRANTED TO LESSEE IN ANY LEASE DOCUMENT, LESSEE HEREBY
WAIVES ANY AND ALL RIGHTS OR REMEDIES CONFERRED UPON A LESSEE UNDER THE CODE OR
ANY OTHER APPLICABLE LAW OR STATUTE, WITH RESPECT TO A DEFAULT BY LESSOR UNDER
THIS AGREEMENT OR ANY LEASE. Each FMV Lease is intended by the parties as a
"finance lease" under the Code.
5.9 SEVERABILITY. Should any provision of any Lease Document be or
become invalid, illegal, or unenforceable under applicable law, the other
provisions of such Lease Document shall not be affected and shall remain in full
force and effect.
5.10 ATTORNEYS' FEES; DEFAULT INTEREST; MAXIMUM RATES. Lessee shall
reimburse Lessor for all charges, costs, expenses and attorney's fees incurred
by Lessor (a) in defending or protecting its interests in the Equipment, (b) in
the enforcement of this Agreement or any Lease, and (c) in any lawsuit or other
legal proceeding to which this Agreement or any Lease gives rise. Any nonpayment
of Rent or other amount payable under any Lease shall result in Lessee's
obligation to promptly pay Lessor on such overdue payment, for the period of
time during which it is overdue (including during any grace period), interest at
a rate ("DEFAULT RATE") equal to fourteen percent (14%) per annum. To the extent
that any payment of interest (including any amount deemed imputed interest for
purposes of applicable law) under any Lease Document would otherwise exceed
provisions of any law limiting the highest rate of interest that may be lawfully
contracted for, charged or received by Lessor, such payment amount shall be
deemed reduced to such amount as is equal to or consistent with the highest rate
permitted by applicable law.
5.11 GOVERNING LAW AND JURISDICTION. THIS AGREEMENT AND THE OTHER LEASE
DOCUMENTS SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF NEW
YORK. LESSOR AND LESSEE WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION
ARISING FROM ANY LEASE DOCUMENT. LESSEE CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF THE STATE
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COURTS OF NEW YORK, AND THE FEDERAL COURTS SITTING IN THE STATE OF NEW YORK, FOR
THE RESOLUTION OF ANY DISPUTES UNDER ANY LEASE DOCUMENT.
5.12 SURVIVAL. All obligations of Lessee to make payments to Lessor
under any Lease or to indemnify Lessor, including pursuant to Section 3.4 or 3.7
above, with respect to a Lease, and all rights of Lessor hereunder with respect
to a Lease, shall survive the termination of such Lease and the return of the
Equipment.
5.13 SECURITY. To secure the payment and performance by Lessee of all
obligations under each Lease, Lessee hereby grants Lessor a security interest in
Lessee's right, title and interest, now existing and hereafter arising, in and
to, (a) all Equipment subject to such Lease, (b) all insurance, warranty, rental
and other claims and rights to payment and chattel paper arising out of such
Equipment, and (c) all books, records and proceeds relating to the foregoing.
5.14 COUNTERPARTS; CHATTEL PAPER. Each Lease Document may be executed
in counterparts, and when so executed each counterpart shall be deemed to be an
original, and such counterparts together shall constitute one and the same
instrument. The original of each Schedule shall constitute chattel paper for
purposes of the Code. If there exist multiple originals of a Schedule, the one
marked "Lessor's Copy" or words of similar import, shall be the only chattel
paper.
5.15 APPENDIX. Any lease Appendix executed by Lessor and Lessee making
reference to this Agreement is a part of and incorporated into this Agreement by
this reference.
LESSEE, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, ACKNOWLEDGES
THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS
TERMS AND CONDITIONS. EACH PERSON SIGNING BELOW ON BEHALF OF LESSEE REPRESENTS
THAT HE OR SHE IS AUTHORIZED TO EXECUTE AND DELIVER THIS AGREEMENT ON BEHALF OF
LESSEE.
LESSOR: LESSEE:
CISCO SYSTEMS CAPITAL CORPORATION AppliedTheory Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
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(Authorized Signature) (Authorized Signature)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ / Accounting Manager ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III, Sr V.P.
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(Name/Title) (Name/Title)
By:
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(Authorized Signature)
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(Name/Title)
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SCHEDULE ▇▇. ▇▇▇-▇▇-▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇
THIS SCHEDULE NO. 001-00-0 (this "SCHEDULE") dated as of February 26, 2001, by
and between CISCO SYSTEMS CAPITAL CORPORATION ("LESSOR"), having its principal
place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
APPLIEDTHEORY CORPORATION ("LESSEE") having its principal place of business at
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, fax number ▇▇▇-▇▇▇-▇▇▇▇, supplements that
certain Master Agreement to Lease Equipment No. 3402 dated as of (the
"AGREEMENT," and together with this Schedule, the "LEASE") between Lessor and
Lessee, incorporated herein by this reference. Capitalized terms not otherwise
defined herein have the meanings specified in the Agreement.
1. EQUIPMENT DESCRIPTION. Quantity, manufacturer, and model of the
Equipment subject to this Schedule are as specified at Annex A hereto, and the
serial number is as specified at Annex A or in the applicable Certificate of
Acceptance. Unless otherwise specified at Annex A, the Equipment is new.
2. EQUIPMENT LOCATION. The Equipment shall at all times be installed or
located at the location specified in Annex A or in the applicable Certificate of
Acceptance, or such other location as is permitted under the Agreement.
3. EQUIPMENT COST. The "EQUIPMENT COST" for any item of Equipment is the
sum of (a) the equipment purchase price specified in the invoice now or
hereafter issued by the Vendor in relation to the Equipment, plus (b) all taxes,
shipping, insurance, installation, cabling, maintenance, software and related
expenses to the extent paid or financed by Lessor in its discretion
(collectively, "SOFT COSTS") and as may be reflected in Annex A hereto. The
aggregate Equipment Cost for all Equipment under this Schedule is $881,674.25.
4. RENTAL PAYMENT AMOUNT. Based on the aggregate Equipment Cost above and
the lease payment factor(s) set forth below, the monthly rental payment in
respect of the Equipment is $25,049.41 ("RENT"):
Equipment Rental Factor: 0.02847
Software Finance Factor: 0.02847
Maintenance Finance Factor: 0.027778
5. LEASE TERM. The "LEASE TERM" of this Lease shall begin on the
Commencement Date and shall consist of an "ORIGINAL TERM" equal to (36) months
and, if this is an FMV Lease (as defined in Paragraph 8), the Original Term
shall automatically be extended on a month-to-month basis (each, an "EXTENDED
TERM") unless either party notifies the other not later than 30 days prior to
the end of the Lease Term or any extension thereof of its election not to extend
such lease term or extended term. If this is not an FMV Lease, the Lease Term
shall end at the end of the Original Term. The "COMMENCEMENT DATE" of this Lease
shall be the earlier to occur of (a) the execution date specified in the
certificate of acceptance, if any, delivered by Lessee ("CERTIFICATE OF
ACCEPTANCE") relating to the Equipment, or if the Equipment is delivered in
multiple shipments, relating to the last item of Equipment delivered to Lessee,
or (b) 11/1/2000. Notwithstanding any provision to the contrary contained in any
Lease Document, Lessee shall be deemed to have irrevocably accepted, for
purposes of the Lease, the Equipment on the Commencement Date. Lessee agrees to
complete, sign and return to Lessor any Certificate of Acceptance sent to
Lessee, within five days of Lessee's receipt and acceptance, or deemed
acceptance, of the relevant Equipment, and, if Lessee fails to do so, Lessee
shall (i) be deemed to have accepted and ratified such Certificate of Acceptance
and (ii) be deemed to have authorized Lessor as attorney-in-fact, coupled with
an interest, to complete and sign the Certificate of Acceptance on behalf and in
the name of Lessee.
6. RENT PAYMENTS. Rent for the Original Term shall be payable in (36)
consecutive, equal monthly payments in advance, on the first day of each such
period, commencing with the first day of the calendar month immediately
following the Commencement Date (unless the Commencement Date is the first day
of the month and rent is payable in advance, in which case the first Rent
payment shall be due on such date). Lessor agrees that no Rent shall be payable
for any period prior to the Commencement Date or for the period from the
Commencement Date (provided such date is not the first day of the month) until,
but not including, the first day of the calendar month immediately following the
Commencement Date. Unless otherwise agreed in writing by the Lessor at such
time, the Rent for any Extended Term shall be payable monthly, in advance, and
shall be in a daily-equivalent amount equal to that of the original Rent,
adjusted, as applicable, for Soft Costs.
1.
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7. END OF TERM PURCHASE OPTION PRICE. Lessee may or shall, as the case may
be, purchase the Equipment in accordance with the terms of Paragraph 8 for the
following amount (as checked and completed by Lessor):
/ / (a) $____________.
/X/ (b) Fair Market Value (as defined in Paragraph 8). See
Addendum A for detail of End of Term Option.
8. END OF TERM PURCHASE OPTION.
(a) If option (b) is selected at Paragraph 7, this Lease shall be
deemed an "FMV LEASE" and Lessee shall have an end of term purchase
option as follows. (If no option is selected at Paragraph 7, option (b)
shall be deemed to apply.) Provided this Lease has not been terminated
earlier and there exists no Event of Default or event which with
notice, lapse of time or both, would be an Event of Default, not
earlier than 90 days and not later than 30 days before the end of the
Original Term, Lessee may deliver to Lessor an irrevocable notice
electing to purchase all (but not less than all) of the Equipment at
the end of the Original Term for an amount equal to the amount
specified in the provision selected (or deemed selected) in Paragraph
7, which amount Lessee shall pay to Lessor on the last day of the
Original Term. If no such notice is delivered by Lessee to Lessor
within such period, Lessee shall be deemed to have waived any right to
purchase such Equipment.
(b) If option (a) of Paragraph 7 is selected, Lessee shall pay Lessor
the amount specified in such option on the last day of the Original
Term.
(c) Upon full payment to it of the amount specified in clause (a) or
(b) of this Paragraph 8, Lessor shall transfer its right, title and
interest in and to such Equipment to Lessee without recourse or
warranty, except that Lessor shall warrant that such Equipment is free
and clear of any lien or encumbrance arising by or through Lessor.
(d) "FAIR MARKET VALUE" shall mean the value which would obtain in an
arm's-length transaction between an informed and willing buyer-user
(other than a lessee currently in possession or a used equipment
dealer) under no compulsion to buy, and an informed and willing seller
under no compulsion to sell and, in such determination, costs of
removal from the location of current use shall not be a deduction from
such value. Fair Market Value shall be determined by the mutual
agreement of Lessor and Lessee in accordance with the preceding
sentence or, if Lessee and Lessor cannot agree within 20 days after
Lessee's notice of election to purchase under clause (a) of this
Paragraph 8, by a qualified independent equipment appraiser selected by
Lessor, at Lessee's cost.
9. CASUALTY VALUE. The Casualty Value of the Equipment shall at any time
be the greater of (a) Fair Market Value at such time; or (b) as of the date of
shipment from the manufacturer, 110% of Equipment Cost, such amount to decrease
from month to month thereafter by 1.69% of Equipment Cost.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Schedule to be duly
executed by their authorized representatives as of the date first above written.
Each signatory of the Lessee represents that he or she is authorized to execute
and deliver this Schedule on behalf of Lessee.
CISCO SYSTEMS CAPITAL CORPORATION, LESSOR APPLIEDTHEORY CORPORATION , LESSEE
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
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Title: Controller
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Title: SVP
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
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Title:
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2.
