Exhibit 10.2
Confidential treatment has been requested for portions of this exhibit. The
confidential portions have been redacted and are denoted by [*]. The
confidential portions have been filed separately with the Securities and
Exchange Commission.
Lessor NFTC Capital Corporation Master Lease Agreement
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Lessee ZIPLINK, INC.
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Contact XX. XXXX X. XXXXXXXXXX
Title CFO
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Address
000 XXXXXXXXXX XXXXXX, XXXXX XXX, 0XX FLOOR
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Telephone Number Facsimile Number
978/551-8915
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Master Lease Agreement No.
6862229
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City County/Province State/Country Zip Code
XXXXXX XXXXXXXXX XX 00000
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Corporation Proprietorship Partnership Other
X
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TERMS AND CONDITIONS (The Reverse side contains Terms and Conditions
which are also a part of this Agreement)
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1. LEASE: Lessor shall purchase and lease to Lessee the equipment and associated
items ("Equipment") described in any Equipment Schedule ("Schedule") executed
from time to time by Lessor and Lessee that makes reference to this Master Lease
Agreement ("Agreement"). This Agreement shall be incorporated into each
Schedule. When computer programs and related documentation are furnished with
the Equipment, and a non-exclusive license and/or sublicense (collectively,
"Software") is granted to Lessee in an agreement ("Supplier Agreement") with the
suppliers (collectively, "Supplier") identified on the Schedule, Lessor, to the
extent permitted, grants Lessee a similar non-exclusive sublicense to use the
Software only in conjunction with the Equipment for so long as the Equipment is
leased hereunder. The Equipment and Software include, but are not limited to,
all additions, attachments and accessions thereto and replacements therefore
(collectively, "System"). Any reference to "Lease" shall mean with respect to
each System, this Agreement, a Schedule, a Consent of Supplier, an Acceptance
Certificate, any riders, amendments and addenda thereto, and any other documents
as may from time to time be made a part thereof.
As conditions precedent to Lessor's obligation to purchase any Equipment and
obtain any Software, not later than the Commitment Date set forth on the
applicable Schedule (a) Lessee and Lessor shall execute this Agreement, a
Schedule, an Acceptance Certificate and other documentation contemplated herein,
and (b) there shall have been no material adverse change in Lessee's financial
condition. Upon Lessor's execution of a Schedule, Lessee assigns to Lessor its
rights to receive title to the Equipment and any non-exclusive sublicense to use
the Software described in the Supplier Agreement as of the day the System is
delivered to the Installation Site set forth in the applicable Schedule but no
other right or any warranty thereunder. In consideration of such an assignment
and subject to the terms and conditions herein, Lessor agrees to pay to the
Supplier the Price (as defined in Section 3 below) for the System pursuant to
the Supplier Agreement, but not to perform any other obligation thereunder.
Unless Lessee exercises its Purchase Option as set forth in the applicable
Schedule, Lessee hereby assigns to Lessor all of Lessee's then-remaining rights
pursuant to the applicable Supplier Agreement effective upon the termination or
expiration of the Term (as set forth in the applicable Schedule) for any reason.
2. TERM, RENEWAL AND EXTENSIONS: If all other conditions precedent to a Lease
have been met, the Lease Term for the System described on each Schedule shall
commence on the date of Lessee's execution of an Acceptance Certificate
("Commencement Date"), and continue for the number of whole months or other
periods set forth in such Schedule ("Initial Term"), the first such full month
commencing on the first day of the month following the Commencement Date (or
commencing on the Commencement Date if such date is the first day of the month).
If Lessee selects Purchase Option B or C in the applicable Schedule, on the
expiration date of the initial Term, the Lease shall be automatically renewed
for a six-month period ("Renewal Term") unless, by giving written notice to
Lessor six (6) months prior to the expiration date, the Lessee elects to
terminate the Lease. After the Renewal Term, at Lessors option, the Lease shall
be automatically extended on a month-to-month basis until either party gives the
other not less than thirty (30) days prior written notice of its intention to
terminate the Lease. Any renewals and extensions shall be on the same terms and
conditions as during the Initial Term. "Term" shall mean the applicable Initial
Term, the Renewal Term, if any, and any extension thereof as provided herein.
3. RENT AND PAYMENT: Lessee shall pay to Lessor all the rental payments as shown
in the applicable Schedule ("Rent") during the Term of the Lease, except as such
Rent may be adjusted pursuant to this Section and Sections 2 and 8 of a
Schedule, plus such additional amounts as are due Lessor under the Lease. Rent
shall be paid as designated in the applicable Schedule in advance on the first
day of each Payment Period ("Rent Payment Date"). If the Commencement Date is
not the first day of a calendar month (or other Payment Period), Lessee shall
pay to Lessor, on demand, interim Rent prorated daily based one 360-day year for
each day from and including the Commencement Date to and including the last day
of such month or other Payment Period.
The Rent is based upon the Price of the System and the acceptance of the System
by Lessee on or before the Commitment Date set forth in the applicable Schedule.
The "Price" of the System shall be as set forth in the Schedule, and shall
exclude all other costs, including sales or other taxes included in the Supplier
Agreement as part of the purchase price. If the Price is increased or decreased
as a result of a job change order ("JCO"), the Lessee authorizes Lessor to
adjust the Rent. If the Commencement Date occurs after the Commitment Date, and
Lessor waives the condition precedent that the Commencement Date occur on or
before the Commitment Date. Lessor's then-current Lease Rate Factor for similar
transactions shall apply and the Lessee authorizes Lessor to adjust the Rent,
accordingly.
Whenever any payment of Rent or other amount is not made within ten (10) days
after the date when due, Lessee agrees to pay on demand (as a fee to offset
Lessor's collection and administrative expenses), the greater of twenty-five
dollars ($25.00) or ten percent (10%) of each such overdue amount, but not
exceeding the lawful maximum, if any. All payments shall be payable to Lessor in
U.S. dollars at Lessor's address set forth in Section 18 or such other place as
Lessor directs in writing. If Lessee requests changes or amendments to any
Lease, Lessor may charge Lessee Lessor's reasonable costs and expenses of
negotiation and documentation, including fees of legal staff or outside counsel.
4. DELIVERY: All transportation, delivery and installation costs (unless
included in the Price) are the sole responsibility of Lessee. Lessee assumes all
risk of loss and damage if the Supplier fails to deliver or delays in the
delivery of any System, or if any System is unsatisfactory for any reason
5. NET LEASE: Lessee's obligations under each Lease are absolute, unconditional
and non-cancellable and shall not be subject to any delay, reduction, setoff,
defense, counterclaim or recoupment for any reason including any failure of any
System, or any misrepresentations of any supplier, manufacturer, installer,
vendor or distributor. Lessor is not responsible for the delivery, installation,
maintenance or operation of any System.
6. WARRANTIES: Lessor agrees that third-party warranties, if any, inure to the
benefit of Lessee during the Term and on exercise of the Purchase Option. Lessee
agrees to pursue any warranty claim directly against such third party and shall
not pursue any such claim against Lessor. Lessee shall continue to pay Lessor
all amounts payable under any Lease under any and all circumstances.
7. QUIET ENJOYMENT: Lessor shall not interfere with Lessee's quiet enjoyment and
use of the System during the Term if no Event of Default has occurred and is
continuing.
8. TAXES AND FEES: Lessee shall promptly reimburse Lessor, upon demand, as
additional Rent, or shall pay directly, if so requested by Lessor, all license
and registration fees, sales, use, personal property taxes and all other taxes
and charges imposed by any federal, state, or local governmental or taxing
authority, relating to the purchase, ownership, leasing, or use of the System or
the Rent excluding, however, all taxes computed upon the net income of Lessor.
9. DISCLAIMER OF WARRANTIES AND DAMAGES: LESSEE ACKNOWLEDGES THAT (a) THE SIZE,
DESIGN, CAPACITY OF EACH SYSTEM AND THE MANUFACTURER AND SUPPLER HAVE BEEN
SELECTED BY LESSEE; (b) LESSOR IS NOT A MANUFACTURER, SUPPLIER, DEALER,
DISTRIBUTOR OR INSTALLER OF ANY SYSTEM; (c) NO MANUFACTURER OR SUPPLIER OR ANY
OF THEIR REPRESENTATIVES IS AN AGENT OF LESSOR OR AUTHORIZED TO WAIVE OR ALTER
ANY TERM OR CONDITION OF ANY LEASE; AND (d) EXCEPT FOR LESSOR'S WARRANTY OF
QUIET ENJOYMENT SET FORTH IN SECTION 7, LESSOR HAS NOT MADE, AND DOES NOT HEREBY
MAKE, ANY REPRESENTATION, WARRANTY OR COVENANT, WRITTEN OR ORAL, STATUTORY,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION,
THE DESIGN, QUALITY, CAPACITY, MATERIAL, WORKMANSHIP, OPERATION, CONDITION,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, HIDDEN OR LATENT DEFECTS,
OR AS TO ANY PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT, LESSEE LEASES EACH
SYSTEM "AS IS, WHERE IS."
LESSOR SHALL HAVE NO LIABILITY TO LESSEE OR ANY THIRD PARTY FOR ANY SPECIAL,
DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY SORT INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOSS OF PROFITS OR SAVINGS,
LOSS OF USE, OR ANY OTHER DAMAGES, WHETHER BASED ON STRICT LIABILITY OR
NEGLIGENCE, WHETHER RESULTING FROM USE OF A SYSTEM OR BREACH OF A LEASE OR
OTHERWISE, EXCEPT FOR DIRECT, SPECIFIC DAMAGES FOR PERSONAL INJURY OR PROPERTY
DAMAGE TO THE EXTENT CAUSED BY LESSOR'S ACTIVE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
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Except as otherwise provided in Section 3 of this Agreement and Sections 2, 3,
and 8 of a Schedule, any modifications, amendments or waivers to a Lease shall
be effective only if mutually agreed upon in a writing, duly executed by
authorized representatives of the parties.
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NTFC Capital Corporation ZIPLINK, INC.
BY /s/ Xxx Xxxxxxx Xxxxxxxx BY /s/ Xxxx X. Xxxxxxxxxx
------------------------------ ------------------------------
Authorized Representative Authorized Representative
PRINT NAME Xxx Xxxxxxx Xxxxxxxx PRINT NAME Xxxx X. Xxxxxxxxxx
---------------------- ----------------------
TITLE Operations Manager DATE 3/31/00 TITLE CFO DATE 3/31/00
------------------ ------- --- -------
--------------------------------------------------------------------------------
MLA 11/1/99 Telecom Financial Services Legal Staff
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IF LESSEE HAS ELECTED PURCHASE OPTION [ILLEGIBLE] C, ARTICLE 2A OF THE UCC MAY
APPLY TO THE LEASE AND LESSEE MAY HAVE CERTAIN RIGHTS THEREUNDER. IF SO, LESSEE
ACKNOWLEDGES THAT SUCH A LEASE IS A FINANCE LEASE AS DEFINED IN UCC ss.2A-103.
TO THE EXTENT PERMITTED BY LAW, LESSEE HEREBY WAIVES ANY RIGHTS OR REMEDIES
LESSEE MAY HAVE UNDER UCC xx.xx. 2A-508-522 INCLUDING, WITHOUT LIMITATION,
RIGHTS OF REJECTION, REVOCATION, CANCELLATION, GRANTING OF SECURITY INTERESTS,
AND RECOVERY FOR BREACH OF WARRANTY.
10. INSURANCE: At its expense, Lessee shall keep each System insured against all
risks of loss and damage for an amount equal to the installed replacement cost
of such System with Lessor named as a loss payee. Lessee shall also maintain
comprehensive general liability insurance, with Lessor named as an additional
insured. All insurance policies shall be with an insurer having a rating of "B+"
or better by A.M. Best Company, Inc., and be in such form, amount and
deductibles as are satisfactory to Lessor. Each such policy must state by
endorsement that the insurer shall give Lessor not less than thirty (30) days
prior written notice of any amendment, renewal or cancellation. Lessee shall,
upon request, furnish to Lessor satisfactory evidence that such insurance
coverage is in effect. Lessee may self insure for such coverages only with
Lessor's prior written consent.
11. CASUALTY: If any System, in whole or in part, is lost, stolen, damaged or
destroyed, or is taken in any condemnation or similar proceeding (an "Event of
Loss"), Lessee shall immediately notify Lessor. Lessee shall, at its option (a)
immediately place the affected Equipment and Software in good condition and
working order, (b) replace the affected item with like equipment or software in
good condition and transfer clear title and any sublicense to Lessor, or (c) pay
to Lessor, within thirty (30) days of the Event of Loss an amount equal to the
Stipulated Loss Value ("SLV") as defined below, for such affected Equipment or
Software plus any other unpaid amounts then due under the Lease. If an Event of
Loss occurs as to part of a System for which the SLV is paid, a prorata amount
of Rent shall xxxxx from the date the SLV payment is received by Lessor. Upon
payment of the SLV, title to the applicable Equipment and the sublicense to the
applicable Software shall pass to Lessee with no warranties, subject to the
rights, if any, of the insurer.
The SLV shall be an amount equal to all future Rent from the last Rent Payment
Date for which Rent has been paid to the end of the Term with each such payment
discounted to present value at a simple interest rate of five percent (5%) per
annum or the Lease Rate, as applicable, or, if such rate is not permitted by
law, then at the lowest permitted rate, plus (a) if Lessee selects Purchase
Option B, twenty percent of the product obtained by multiplying the total number
of Rent payments shown on the Schedule for the applicable Term by the then
periodic Rent, or (b) if Lessee selects Purchase Option C, the percent set forth
in the Purchase Option C election in the Schedule times the Price as it may have
been adjusted ("Percent Option Amount"). If Lessor received any insurance
proceeds, Lessor shall apply such proceeds to Lessee's outstanding obligations
with any remaining sums to be delivered to Lessee.
12. INDEMNITY: Lessee shell indemnity Lessor against, and hold Lessor harmless
from, and covenants to defend Lessor against, any and all losses, claims, liens,
encumbrances, suits, damages, and liabilities (and all costs and expenses
including, without limitation, reasonable attorneys' fees) related to the Lease
including, without limitation, the selection, purchase, delivery, ownership,
condition, use, operation of a System, or violation of a Software sublicense, or
arising by operation of law (excluding any of the foregoing to the extent caused
by the active gross negligence or willful misconduct of Lessor). Lessee shall
assume full responsibility for or, at Lessor's sole option, reimburse Lessor for
the defense thereof. This Section shall survive the termination of the Lease but
not longer than the applicable statute of limitations.
13. TAX INDEMNITY: If Lessee selects Purchase Option B, the Lease is entered
into based upon the assumptions ("Assumptions") that for federal, state, and
local income tax purposes, Lessor shall be entitled to deduct, at the highest
marginal rate of tax imposed on corporations, the maximum depreciation or cost
recovery allowances provided in the Internal Revenue Code of 1986, as amended,
and under state and local law in effect on the date Lessee executes the
applicable Schedule. If, in its reasonable Opinion, Lessor determines that its
net after-tax economic yield or after-tax cash flow ("Net Economic Return") has
been adversely affected as a result of a change in the Assumptions (a "Loss"),
Lessee agrees to pay to Lessor, on demand, an amount which will cause Lessor's
then Net Economic Return to equal the Net Economic Return that Lessor would have
received had such Loss not occurred. Lessee shall have no right to inspect the
tax returns of Lessor.
14. DEFAULT: Any of the following shall constitute an Event of Default: (a)
Lessee fails to pay when due any Rent or other amount payable under a Lease that
is not paid within ten (10) days of Lessee's receipt of written notice of
nonpayment; (b) Lessee fails to perform any other material term in any Lease or
other agreement given in connection with any Lease that continues uncured for
twenty (20) days after Lessee's receipt of written notice thereof; (c) the
inaccuracy of any material representation or warranty made by Lessee or any
guarantor in connection with any Lease and the continuation thereof for thirty
(30) days or more; (d) Lessee attempts to make a Transfer (as defined in Section
16) without Lessor's prior written consent; (e) Leases dissolves or ceases to do
business as a going concern; (f) Lessee sells all or substantially all of its
assets, merges or consolidates with or into, or reorganizes with any entity; (g)
Lessee becomes insolvent, makes an assignment for the benefit of creditors,
files a voluntary petition or has an involuntary petition filed or action
commenced against it under the United States Bankruptcy Code or any similar
federal or state law; (h) Lessee fails to perform its obligations under any
other Lease or agreement with Lessor; or (i) Any partner of Lessee or any
guarantor takes any actions described in subsections (e), (f), or (g) above.
15. REMEDIES: If an Event of Default has occurred, Lessor shall have the right
to exercise one or more of the following remedies set forth below. Lessor may
(a) terminate and/or declare an Event of Default under any Lease or other
agreement with Lessee (b) recover from Lessee all Rent and any and all amounts
then due and unpaid and (c) recover from Lessee all Rent and other amounts to
become due, by acceleration or otherwise (plus, if the System is not returned in
accordance with Section 9 of the applicable Schedule, an amount equal to (i)
Lessor's reasonable estimate of the fair market value of the System at the end
of the applicable Term if Lessee selects Purchase Option B in the Schedule, or
(ii) if Lessee selects Purchase Option C in the Schedule, the Percent Option
Amount). The amounts described in subsection (c) shall be present valued using a
five percent (5%) simple interest rate per annum or the Lease Rate, as
applicable, or, if such [ILLEGIBLE] not permitted by law, then at the lowest
permitted rate. The amounts set forth in subsections (b) and (c) above shall be
the agreed upon damages ("Lessor's Loss"). Lessor may also charge Lessee
interest on the Lessors Loss from the date of the Event of Default until paid at
the rate of one and one-half percent (1-1/2%) per month, but in no event more
than the maximum rate permitted by law; demand the Lessee return any System to
Lessor in the manner provided in Section 9 of the Schedule; and take possession
of, render unusable, or disable any System wherever located, with or without
demand or notice or any court order or any process by law.
Upon repossession or return of a System, Lessor shall have the right to sell,
lease or otherwise dispose of the System, with or without notice and by public
or private bid, and shall apply the net proceeds thereof, if any, toward
Lessor's Loss but only after deducting from such proceeds (a) in the case of any
reletting of the System, the rent due for any period beyond the scheduled
expiration of the Lease; (b) in the case of sale, (i) if Lessee has elected
Purchase Option B, the estimated fair market value of the System as of the
scheduled expiration of the Term of the Lease, or (ii) if Lessee has elected
Purchase Option C, an amount equal to the Percent Option Amount; and (c) all
expenses including, without limitation, reasonable attorneys' fees incurred in
enforcement of any remedy. Lessee shall be liable for any deficiency if the net
proceeds available after the permitted deductions are less than Lessor's Loss.
No right or remedy is exclusive of any other provided herein or permitted by law
or equity. All rights and remedies shall be cumulative and may be enforced
concurrently or individually from time to time.
16. ASSIGNMENT: Lessor may, without notice to or the consent of Lessee, sell,
assign, grant a security interest in, or pledge its interest in all or a portion
of a System and/or a Lease and any amounts payable hereunder to any third party
("Assignee"). Lessee shall, if directed, pay all Rent and other amounts due to
Assignee free from any claim, counterclaim, defense or other right which Lessee
may have against Lessor, Lessor shall be relieved of its future obligations
under the Lease as a result of such assignment if Lessor assigns to Assignee its
interest in the System and Assignee assumes Lessor's future obligations. WITHOUT
LESSOR'S PRIOR WRITTEN CONSENT, LESSEE SHALL NOT ASSIGN, SUBLEASE, TRANSFER,
PLEDGE, MORTGAGE OR OTHERWISE ENCUMBER ("TRANSFER") ANY SYSTEM OR ANY LEASE OR
ANY OF ITS RIGHTS THEREIN OR PERMIT ANY XXXX, XXXX OR ENCUMBRANCE THEREON. Any
attempted non-consensual Transfer by Lessee shall be void ab initio. No Transfer
shall relieve Lessee of any of its obligations under a Lease.
17. ORGANIZATION AND AUTHORITY: Lessee is duly organized, validly existing and
in good standing under the laws of its State of formation and in any
jurisdiction where a System is located. Lessee has the power and authority to
execute, deliver and perform each Lease. The person executing this Agreement and
any Schedules on behalf of Lessee has been given authority to bind the Lessee
and each Lease constitutes or will constitute a legally binding and enforceable
obligation of the Lessee. The execution, delivery and performance of each Lease
is not and will not be in contravention of, or will not result in a breach of,
any of the terms of Lessee's organizational documents, and any agreements,
contracts or instruments to which Lessee is a party or under which it is bound.
18. NOTICES: Notices, demands and other communications shall be in writing and
shall be sent by hand delivery, certified mail (return receipt requested), or
overnight courier service, or facsimile transmission (effective upon
transmission) with a copy sent by one of the foregoing methods, to Lessee at the
address or facsimile number stated above and to Lessor at [ILLEGIBLE] Drive,
Suite [ILLEGIBLE], Franklin, Tennessee [ILLEGIBLE], Attention: V.P. Finance, or
facsimile no. (000) 000-0000. Notices shall be effective upon the earlier of
actual receipt or four days after the mailing date. Either party may substitute
another address by written notice.
19. JURISDICTION AND GOVERNING LAW: EACH LEASE SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF TENNESSEE AND THE LESSEE CONSENTS AND AGREES THAT, AT LESSOR'S
OPTION, PERSONAL JURISDICTION, SUBJECT MATTER JURISDICTION AND VENUE SHALL BE
WITH THE COURTS OF THE STATE OF TENNESSEE, OR THE FEDERAL COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE.
20. MISCELLANEOUS: (a) Any failure of Lessor to require strict performance by
Lessee, or any waiver by Lessor of any provision of a Lease, shall not be
construed as a consent to or waiver of any other breach of the same or of any
other provision, (b) If there is more than one Lessee, the obligations of each
Lessee are joint and several. (c) Lessee agrees to execute and deliver, upon
demand, any documents necessary, in Lessor's reasonable opinion, to evidence the
intent of a Lease, and/or to protect Lessor's interest in a System. Lessee
appoints Lessor as its attorney-in-fact for the sole purpose of executing and
delivering any UCC financing statements. Lessee agrees to pay Lessor's
out-of-pocket costs of filing and recording such documentation. (d) Lessee shall
deliver to Lessor such additional financial information as Lessor may reasonably
request. (e) If any provision shall be held to be invalid or unenforceable, the
validity and enforceability of the remaining provisions shall not in any way be
affected or impaired. (f) In the event Lessee fails to pay or perform any
obligations under a Lease, Lessor may, at its option, pay or perform such
obligation, and any payment made or expense incurred by Lessor in connection
therewith shall be due and payable by Lessee upon Lessor's demand with interest
thereon accruing at the maximum rate permitted by law until paid. (g) Time is of
the essence in each Lease. (h) Lessee shall pay Lessor, on demand, all costs and
expenses, including reasonable attorneys' and collection fees, incurred by
Lessor in enforcing the terms and conditions of a Lease or in protecting Lessors
rights and interests in a Lease or a System. (i) LESSOR INTENDS TO COMPLY WITH
ALL APPLICABLE LAWS, INCLUDING THOSE CONCERNING THE REGULATION OF INTEREST.
Therefore, no lease charge, late charge, fee or interest, if applicable is
intended to exceed the maximum amount permitted to be charged or collected by
applicable law. If one or more of such charges exceed such maximum, then such
charges will be reduced to the legally permitted maximum charge and any excess
charge will be used to reduce the future Rent and/or the Price of the System or
refunded. (j) Each Lease may be executed by one or more of the parties on any
number of separate counterparts (which may be originals or copies sent by
facsimile transmission), each of which counterparts shall be an original. (k)
Each Lease constitutes the entire agreement between Lessor and Lessee with
respect to the subject matter thereof and supersedes all previous writings and
understandings of any nature whatsoever. (l) No agent, employee, or
representative of Lessor has any authority to bind Lessor to any representation
or warranty concerning any System and, unless such representation or warranty is
specifically included in a Lease, it shall not be enforceable by Lessee against
Lessor.
MT
--------------------------------------------------------------------------------
MLA 3/98 (C) Telecom Financial Services Legal Staff
Lessor NTFC Capital Corporation Equipment Schedule
--------------------------------------------------------------------------------
Lessee ZIPLINK, INC.
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Billing Address Attention
000 XXXXXXXXXX XXXXXX, XXXXX XXX, 0XX FLOOR XX. XXXX X. XXXXXXXXXX
--------------------------------------------------------------------------------
City County/Province State/Country Zip Code
XXXXXX XXXXXXXXX XX 00000
--------------------------------------------------------------------------------
Installation Site City County/Province State/Country Zip Code
COMPLETE EQUIPMENT LISTING BY INSTALLATION
SITE TO BE FURNISHED BY VENDOR.
--------------------------------------------------------------------------------
Supplier Name
NORTEL NETWORKS
--------------------------------------------------------------------------------
Purchase Option
|X| (A) $1.00
|_| (B) FMV
|_| (C)
--------------------------------------------------------------------------------
Advance Payment
*
The Advance Payment shall be applied to the first 1 and last 1 Rent payment(s).
--------------------------------------------------------------------------------
Agreement No./Schedule No.
6862229-001
--------------------------------------------------------------------------------
Price
*
--------------------------------------------------------------------------------
Payment Nos.
1 - 36
--------------------------------------------------------------------------------
Lease Rate Factor
*
--------------------------------------------------------------------------------
Rent
*
--------------------------------------------------------------------------------
Date of Schedule
1/26/2000
--------------------------------------------------------------------------------
Initial Term (months)
36
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Commitment Date
3/31/2000
--------------------------------------------------------------------------------
Payment Period
|X| Monthly |_| Other
--------------------------------------------------------------------------------
TERMS AND CONDITIONS (The Reverse side contains Terms and
Conditions which are also a part of this Schedule)
--------------------------------------------------------------------------------
The terms and conditions of the Master Lease Agreement between Lessor and Lessee
referenced above are made a part of this Schedule. Lessor and Lessee hereby
agree to the terms defined above and further agree as set forth herein.
1. ADVANCE PAYMENT: Lessee shall pay to Lessor, upon the execution and delivery
of this Schedule, the advance payment set forth above ("Advance Payment") in
consideration of the Lessor holding funds available to purchase the Equipment
and obtain the Software and as compensation for Lessor's review of Lessee's
credit and document preparation. Upon Lessor's acceptance of the Lease, the
Advance Payment shall be applied to the payment of Rent as set forth above. Any
Advance Payment shall be non-refundable if Lessee fails to timely provide all
documentation or satisfy all conditions required by this Lease.
2. PURCHASE PRICE PAYMENTS: Lessee acknowledges that it has signed and received
a copy of the Supplier Agreement. If Lessee is required to make payments to
Supplier under the Supplier Agreement prior to the Commencement Date ("Purchase
Price Payments"), Lessee requests Lessor to pay such payments subject to the
following terms and conditions. The Price will be increased by adding a price
adjustment for each Purchase Price Payment. Each such price adjustment shall be
computed by-multiplying the Purchase Price Payment paid by Lessor to Supplier by
a rate equal to the "Base Lending Rate" from time to time designated by Citibank
N.A., NY, NY in effect on the date Lessor makes the first Purchase Price Payment
plus two and one-half percent, divided by 360, and multiplied by the actual
number of days elapsed from the date of the Purchase Price Payment to the
Commencement Date or, if the Lease does not commence, to the date Lessee refunds
the Purchase Pride Payments to Lessor in accordance with Section 3. In no event
will all or any price adjustment(s) exceed any limits imposed by applicable law.
The periodic Rent shell be increased as a result of adding to the Price of the
System an amount equal to the total price adjustment(s).
3. ACCEPTANCE: Lessee agrees to accept the System for purposes of this Lease by
signing the Acceptance Certificate within ten (10) days after the System has met
the acceptance criteria specified in the Supplier Agreement. If Lessee fails or
refuses to sign the Acceptance Certificate within such (10) ten day period,
Lessor may declare lessee's assignments and Lessor's agreement to pay the Price
set forth in Section 1 of the Agreement and Section 2 of this Schedule to be
null and void ab initio and thereupon the Lease shall terminate. Lessor shall
then have no obligations under the Lease and Lessee shall, within ten (10) days
of a demand therefore, immediately pay to Lessor all Purchase Price Payments and
all price adjustment(s) under Section 2 herein as well as Lessor's out-of-pocket
expenses.
4. MAINTENANCE, USE. AND OPERATION: At all times during the Term, at its sole
cost and expense, Lessee shall maintain the System in good repair, condition and
working order, ordinary wear and tear excepted. Lessee shall use the System and
all parts thereof for its designated purpose and in compliance with all
applicable laws, shall keep the System in its possession and control and shall
not permit the System to be moved from the Installation Site set forth above
without Lessor's prior written consent.
5. PERSONAL PROPERTY: The System is, and shall at all times remain, personal
property even if the Equipment is affixed or attached to real property or any
improvements thereon. At Lessor's request, Lessee shall, at no charge, promptly
affix to the System any tags, decals, or plates furnished by Lessor indicating
Lessor's interest in the System and Lessee shall not permit their removal or
concealment. At Lessee's expense, Lessee shall (a) at all times keep the System
free and clear of all liens and encumbrances, except those described in Section
6 and those arising through the motions of Lessor, and (b) otherwise cooperate
to defend Lessor's interest in the System and to maintain the status of the
System and at parts thereof as personal property. If requested by Lessor, Lessee
will, at Lessee's expense, furnish a waiver of any interest in the System from
any party having an interest in the real estate or building in which the System
is located. Lessor may inspect the System and any related maintenance records at
any time during Lessee's normal business hours.
6. TRUE LEASE AND SECURITY INTEREST: If Lessee has selected Purchase Option B,
(a) Lessor holds title to the Equipment and the right to use the Software and
Lessor shall be entitled to all tax benefits resulting therefrom, (b) Lessee
shall have no right, title or interest therein, other than possession and use as
a lessee and non-exclusive sublicensee, and (c) Lessee and Lessor intend
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A complete description of the System is set forth on the Equipment
and Software Listing attached hereto and made a part hereof.
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NTFC Capital Corporation ZIPLINK, INC.
BY /s/ Xxx Xxxxxxx Xxxxxxxx BY /s/ Xxxx X. Xxxxxxxxxx
------------------------------ ------------------------------
Authorized Representative Authorized Representative
PRINT NAME Xxx Xxxxxxx Xxxxxxxx PRINT NAME Xxxx X. Xxxxxxxxxx
---------------------- ----------------------
TITLE Operations Manager DATE 3/31/00 TITLE CFO DATE 3/31/00
------------------ ------- --- -------
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this Lease to create a true lease and not a security interest, and the
provisions of this Section or the filing of any financing statements with
respect to this Lease shall not be deemed evidence of any contrary intent out of
an attempt to protect Lessor's rights and title. Regardless of the purchase
option selected, and without limiting or negating the foregoing sentence, to
secure the performance of Lessee's obligations under this Lease including,
without limitation, the repayment of any Purchase Price Payments, price
adjustments and out-of-pocket expenses under Section 3 above, Lessee hereby
grants to Lessor a first priority security interest in Lessee's existing and
future right, title and interest in, to and under (i) the System Including all
additions, attachments, accessions, and leased Modifications and Additions (as
defined in Section 7 below) thereto, and replacements therefor, (ii) the
applicable Supplier Agreement, and (iii) all products and proceeds of the
foregoing including, without limitation, insurance proceeds, rents and all sums
due or to become due to Lessee with respect to any of the foregoing, and all
monies received in respect thereof.
7. MODIFICATIONS, ADDITIONS AND ALTERATIONS: After the Commencement Date of this
Lease and without notice to Lessor, Lessee may, at Lessee's expense, alter or
modify any item of Equipment with an upgrade, accessory or any other equipment
that meets the specifications of the System's manufacturer for use on or in
connection with the System ("Modification") or with Software or other associated
items or materials that meet the specifications of such manufacturer and are to
be used on or in connection with such System ("Addition"). Any other
modification or addition ("Alteration") shall be permitted only upon written
notice to Lessor and at Lessee's expense and risk, and any such Alteration shall
be removed and the System restored to its normal, unaltered condition at
Lessee's expense prior to its return to Lessor. If not removed upon return of
the System, any Modification or Addition shall become, without charge, the
property of [ILLEGIBLE] any parts removed in connection with the installation of
an Alteration, Modification or Addition. Any Equipment or Software installed in
connection with warranty or maintenance service or manufacturer's upgrades
provided at no charge to Lessee shall be the property of Lessor.
8. LEASES FOR MODIFICATIONS AND ADDITIONS: During the Term of this Lease, at
Lessee's request, Lessor may elect to lease to Lessee Modifications and
Additions ("CSO Equipment") subject to the terms of this Lease. While the CSO
Equipment shall be added to and become a part of this Lease as of the CSO
Commencement Date (as defined below), the CSO Lease Addendum shall be assigned a
separate Schedule number. The lease for CSO Equipment shall expire at the same
time as this Lease. The applicable Lease Rate Factor shall be Lessor's
then-current Lease Rate Factor for similar transactions based upon the remaining
length of the Term. The rent for CSO Equipment shall be determined by Lessor who
shall adjust the then-current Rent and notify Lessee in writing of such
adjustment(s), which shall be effective as of the first day of the month
following the date of the notice (or the date of the notice if it is the first
day of the month) ("CSO Commencement Date"). Any adjustment notice shall be
added to and become a part of this Lease.
CSO Equipment must be ordered by Lessee from the Suppler. On the date any CSO
Equipment is delivered to Lessee, Supplier shall pass title to such CSO
Equipment (other than any Software which shall be licensed and/or sublicensed)
directly to Lessor. Such title shall be good and marketable and free and clear
of any and all liens and encumbrances of any nature whatsoever. Lessor shall
promptly pay to Supplier the appropriate price of the CSO Equipment after the
later of (a) the date the CSO Equipment is installed and functioning, or (b)
Lessor's receipt of a full and complete listing of the CSO Equipment and the
Supplier's invoice. No interest shall be payable by Lessor to Supplier with
respect to such payment. Lessor's agreement to lease any CSO Equipment is
subject to the condition that the Price payable to Supplier with respect thereto
shall not exceed $100,000.00 or be less than $1,000.00, and is subject to
satisfactory credit review by Lessor of Lessee's credit at the time of the CSO.
9. RETURN OF SYSTEM: (a) Upon any termination of this Lease pursuant to the term
hereof prior to the end of the Term, (b) at Lessor's request upon the occurrence
of an Event of Default, or (c) if Lessee has not exercised its Purchase Option
set forth herein at the end of the applicable Term, Lessee shall, at its own
risk and sole expense, immediately return the System to Lessor by properly
removing, disassembling and packing it for shipment, loading it on board a
carrier acceptable to Lessor, and shipping the same to a destination in the
continental United States specified by Lessor, freight and insurance prepaid.
The returned System shall be in the same condition and operating order as
existed when received, ordinary wear and tear excepted. If Lessee does not
immediately return the System to Lessor as required, Lessee shall pay to Lessor,
on demand, an amount equal to the then-current Rent prorated on a duly basis for
each day from and including the termination or expiration date of the Lease
through and including the day Lessee ships the System to Lessor in accordance
with this Section. Lessee shall pay to Lessor, upon written demand, any amount
necessary to place the System in good repair, condition and working order.
ordinary wear and tear excepted.
10. PURCHASE OPTION: At the expiration of the initial Term, or any Term, if
Lessee has performed all terms and conditions of the Lease, except the return of
the System pursuant to Section 9 herein, Lessee shall have the right to purchase
all, but not less than all, of the Equipment and all leased Modifications and to
receive an assignment of all, but not less than all, non-exclusive sublicenses
to use the Software and Additions, if any, for the purchase price described
below subject to the following terms and conditions:
If Lessee has elected Purchase Option B or C above, Lessee shall provide written
notice to Lessor at least six (6) months prior to such purchase that Lessee has
elected to exercise its Purchase Option. In any event, upon exercise of its
purchase option, Lessee shall purchase the Equipment and all leased
Modifications and obtain a non-exclusive sublicense to use the associated
Software and Additions AS-IS, WHERE-IS, WITH ALL FAULTS AND SUBJECT TO THE SAME
DISCLAIMERS OF WARRANTIES AND DAMAGES AS SET FORTH IN SECTION 9 OF THE
AGREEMENT. Lessee also shall be responsible for the payment of any sales tax or
other fees in connection with Lessee's exercise of this Purchase Option. The
purchase price shall be due and payable to Lessor by Lessee at the expiration of
the applicable Term.
Upon satisfaction by Lessee of the purchase conditions, Lessor's sole and
exclusive obligations under this Purchase Option shall be to deliver to Lessee
good title to such Equipment and leased Modifications such as Lessor received
from the Supplier, to assign to Lessee a non-exclusive sublicense, as described
in the Supplier Agreement, to use the associated Software and Additions, free
and clear of all liens, encumbrances and rights of others arising solely out of
or created by Lessor's actions. Lessor's assignment of the sublicense is limited
to such sublicense as Lessor can assign without incurring further cost and is
subject to all applicable terms and conditions of the license and/or sublicense
set forth in the [ILLEGIBLE].
The purchase price shall be as follows:
(a) Purchase Option A. If Lessee has selected Purchase Option A above, the
purchase price shall be $1.00.
(b) Purchase Option B. If Lessee has selected Purchase Option B above, the
purchase price shall be the installed fair market value thereof assuming the
System is in good repair, condition and working order, ordinary wear and tear
excepted ("FMV"). The FMV shall be determined by Lessor and Lessee. If Lessor
and Lessee are unable to agree, the FMV shall be determined by an independent
appraiser selected by Lessor and approved by Lessee which approval shall not be
unreasonably withheld or delayed. Lessee shall bear the fees of the appraiser.
(c) Purchase Option C. If Lessee has selected Purchase Option C, the purchase
price shall be the product obtained by multiplying the Price, as it may have
been adjusted, by the percent set forth in Option C above.
11. LEASE RATE: By signing a Lease with a Purchase Option A or Purchase Option
C, Lessee agrees to pay Rent (consisting of a principal payment for Equipment
and, if applicable, Software, maintenance, and/or other costs) based on the
Price of such items and a Lease charge derived from an implied interest rate
("Lease Rate"). The Lease Rate, as used to calculate the portion of each monthly
Rent payment that constitutes a lease charge, may be determined by applying to
the Price, the rate that will amortize such Price (adjusting for any Advance
Rent) down to the amount of the Purchase Option at a constant rate over the
initial Term by payment of the monthly Rent. The Lease Rate is the constant rate
referred to in the preceding sentence. The Lease Rate can also be calculated
using the Price as the present value, the Purchase Option as the future value,
the Rent as the payment and the stated Term.
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SCHED 3/98 (C) Telecom Financial Services Legal Staff
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Lease Rate Factor Addendum
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Lessee ZIPLINK, INC. Agreement No./Schedule No.
6862229-001
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Contemporaneously with entering into the Schedule to the Master Lease
Agreement referenced above, Lessor and Lessee hereby agree that the fourth
sentence of the second paragraph of Section 3 of the Agreement, only with
respect to the Schedule, is deleted and the following substituted in lieu
thereof:
The Lease Rate Factor of ******** quoted by Lessor on 12/22/1999
("Quote Date") shall be increased or decreased based upon changes
from the Quote Date until the Commencement Date in three year
Treasury Constant Maturities' yield ("Yield") as reported by the
Federal Reserve Statistical Release (H.15 Report). For each 25
basis points of increase or decrease (rounded downward to the
nearest whole 25 basis point increment or decrement) in the
Yield, the Lease Rate Factor shall be increased or decreased,
respectively by 0.00011200. This adjusted Lease Rate Factor
shall be the Lease Rate Factor used to determine the Rent
relative to the Schedule, unless the Commencement Date occurs
after 3/11/2000, in which event Lessor's then-current Lease
Rate Factor for similar transactions shall be used to determine
the Rent. Lessee authorizes Lessor to adjust the Rent, if
required.
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NTFC Capital Corporation ZIPLINK, INC.
BY /s/ Xxx Xxxxxxx Xxxxxxxx BY /s/ Xxxx X. Xxxxxxxxxx
------------------------------ ----------------------------
PRINT NAME Xxx Xxxxxxx Xxxxxxxx PRINT NAME Xxxx X. Xxxxxxxxxx
--------------------- --------------------
TITLE Operations Manager DATE 3/31/00 TITLE CFO DATE 3/31/00
------------------ ------- ------ ---------
------------------------------------------------------------------------------
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Equipment and Software Listing
------------------------------------------------------------------------------
Lessee ZIPLINK, INC. Agreement No./Schedule No.
6862229-001
------------------------------------------------------------------------------
Lessor and Lessee agree that the following described Equipment and Software
are subject to the Master Lease Agreement and Schedule referenced above.
QUANTITY DESCRIPTION
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COMPLETE EQUIPMENT LISTING BY INSTALLATION SITE TO BE FURNISHED BY VENDOR.
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