1
EXHIBIT 10.31
CISCO SYSTEMS
CAPITAL
[LOGO]
Master Lease No. 1226
MASTER AGREEMENT TO LEASE EQUIPMENT
THIS MASTER AGREEMENT TO LEASE EQUIPMENT (THIS "AGREEMENT") is
entered into as of August 21, 1998 by and between CISCO SYSTEMS CAPITAL
CORPORATION ("LESSOR"), having its principal place of business at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and PARK 'N VIEW, INC., a Florida
Corporation ("Lessee"), having a 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, including all substitutions, replacements,
repairs, parts and attachments, improvements and accessions thereto and therein
(the "EQUIPMENT"), described in the lease schedule(s) (each, a "Lease") to be
entered into from time to time into which this Agreement is incorporated. Each
Lease shall constitute a separate, distinct, and independent lease and
contractual obligation of Lessee. Lessor or its assignee shall at all times
retain the full legal title to the Equipment, it being expressly agreed by both
parties that each Lease is an agreement of lease only.
1.2 TERM OF LEASE. The original term (the "ORIGINAL TERM") of the
Equipment shall commence on the Commencement Date and, subject to Sections 3.3
and 3.5 below, shall terminate on the date specified in the Lease.
Notwithstanding the foregoing, the Original Term for the Equipment shall
automatically extend for successive 30-day periods after its expiration (each,
an "EXTENDED TERM") unless either party gives the other party written notice,
at least thirty (30) days prior to the expiration of the Original Term or any
Extended Term, as the case may be, of its intent not to so extend the
applicable Lease. Except as specifically provided in this Section 1.2, no Lease
may be terminated by Lessor or Lessee, for any reason whatsoever, prior to the
end of the Original Term or any Extended Term (collectively, the "Lease Term").
Notwithstanding any provision to the contrary contained in this Agreement
Lessee shall be deemed to accept the Equipment on the Commencement Date (as
specified in each Lease).
1.3 RENTAL PAYMENTS. Lessee shall pay Lessor rent ("Rent") for the
Equipment in the amounts and at the times specified in the Lease. 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.
2
1.4 RETURN OF EQUIPMENT. Upon expiration of the Lease Term of the
Equipment, Lessee shall immediately return the Equipment to Lessor as provided
in Section 3.3 below. If Lessee fails to return any of the Equipment upon
demand therefor by Lessor, Lessee shall pay Lessor, as the measure of Lessor's
damages, the Casualty Value (as defined in the applicable Lease) of such
Equipment.
II. DISCLAIMERS AND WARRANTIES; INTELLECTUAL PROPERTY
2.1 DISCLAIMERS; WARRANTIES. Lessee represents and acknowledges that
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.
LESSOR LEASES THE EQUIPMENT AS IS, AND, NOT BEING THE MANUFACTURER OF THE
EQUIPMENT, THE MANUFACTURER'S AGENT OR THE SELLER'S AGENT, MAKES NO WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS
FOR ANY PARTICULAR PURPOSE, DESIGN OR CONDITION OF THE EQUIPMENT. LESSOR SHALL
NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE INSTALLATION,
OPERATION OR OTHER USE, OR REINSTALLATION OF THE EQUIPMENT, INCLUDING WITHOUT
LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS.
Lessee shall look solely to the manufacturer or the supplier of the Equipment
for correction of any problems that may arise with respect thereto, and,
provided no Event of Default (as defined in Section 4.1) has occurred and is
continuing, all warranties made by the manufacturer or such supplier are, to
the degree possible, hereby assigned to Lessee for the Lease Term. To the
extent any such warranty requires performance of any kind by the beneficiary of
the warranty, Lessee shall perform in accordance therewith.
2.2 INTELLECTUAL PROPERTY. Except as otherwise expressly provided in
each Lease, LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH
RESPECT TO THE INTELLECTUAL PROPERTY RIGHTS, INCLUDING, WITHOUT LIMITATION, ANY
PATENT, COPYRIGHT AND TRADEMARK RIGHTS, OF ANY THIRD PARTY WITH RESPECT TO THE
EQUIPMENT, WHETHER RELATING TO INFRINGEMENT OR OTHERWISE. Lessor shall, when
requested in writing by Lessee and at Lessee's cost and expense, exercise,
rights of indemnification, if any, for patent, copyright or other intellectual
property infringement obtained from the manufacturer under any agreement for
purchase of the Equipment. If notified promptly in writing of any action
brought against Lessee based on a claim that the Equipment infringes a United
States patent, copyright or other intellectual property right, Lessor shall
promptly notify the manufacturer thereof for purposes of exercising, for the
benefit of Lessee, Lessor's rights with respect to such claim under any such
agreement.
2.
3
III. COVENANTS OF LESSEE
3.1 PAYMENTS UNCONDITIONAL; TAX BENEFITS; ACCEPTANCE. EACH LEASE SHALL
BE A NET LEASE, AND LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER SUMS
THEREUNDER, AND THE RIGHTS OF LESSOR IN AND TO SUCH PAYMENTS, SHALL BE ABSOLUTE
AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION,
SETOFF, DEFENSE, COUNTERCLAIM, INTERRUPTION, DEFERMENT OR RECOUPMENT, FOR ANY
REASON WHATSOEVER. It is the intent of Lessor, and an inducement to Lessor, to
enter into each Lease, to claim all available tax benefits of ownership with
respect to the Equipment subject thereto. Lessee's acceptance of the Equipment
subject to a Lease shall be conclusively and irrevocably evidenced by Lessee
executing an Acceptance Certificate with respect to such Equipment, and upon
acceptance, such Lease shall be noncancellable for the Lease Term unless
otherwise agreed to in writing by Lessor. Any nonpayment of Rent or other
amounts payable under any Lease shall result in Lessee's obligation to promptly
pay Lessor as additional Rent on such overdue payment, for the period of time
during which it is overdue (without regard to any grace period), interest at a
rate equal to the lesser of (a) fourteen percent (14%) per annum, or (b) the
maximum rate of interest permitted by law.
3.2 USE OF EQUIPMENT. Lessee shall use the Equipment solely in the
conduct of its business, in a manner and for the use contemplated by the
manufacturer thereof, and in compliance with all laws, rules and regulations of
every governmental authority having jurisdiction over the Equipment or Lessee
and with the provisions of all policies of insurance carried by Lessee pursuant
to Section 3.6 below. Lessee shall pay all costs, expenses, fees and charges
incurred in connection with the use and operation of the Equipment.
3.3 DELIVERY; INSTALLATION; RETURN; MAINTENANCE AND REPAIR;
INSPECTION. Lessee shall be solely responsible, at its own expense, for (a) the
delivery of the Equipment to Lessee, (b) the packing, rigging and delivery of
the Equipment back to Lessor, upon expiration 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 such other party, reasonably acceptable to
Lessor. Lessee shall, at its expense, keep the Equipment in good repair,
condition and working order, ordinary wear and tear excepted, and, at the
expiration or termination of the Lease Term, or any renewal term, with respect
to any of the Equipment, have such Equipment inspected and certified acceptable
for maintenance service by the manufacturer. In the event any of the Equipment,
upon its return to Lessor, is not in good repair, condition and working order,
ordinary wear and tear excepted, Lessee shall be obligated to pay Lessor for
the out-of-pocket expenses Lessor incurs in bringing such Equipment up to such
status, but not in excess of the Casualty Value (as defined in the applicable
Lease) for such Equipment, promptly after its receipt of an invoice for such
expenses. Lessor shall be entitled to inspect the Equipment at Lessee's
location of reasonable times.
3.
4
3.4 TAXES. Lessee shall be obligated to pay, and hereby indemnifies
Lessor and its successor and assigns against, and holds each of them harmless
from, all license fees, assessments, and sales, use, property, excise and other
taxes and charges, other than those measured by Lessor's net income, now 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 consummation of the transactions contemplated in any Lease or this
Agreement. Notwithstanding the foregoing, Lessor shall file all required
personal property tax returns, and shall pay all personal property taxes
payable, with respect to the Equipment, Lessee shall pay to Lessor, as
additional Rent, the amount of all such personal property taxes within fifteen
(15) days of its receipt of an invoice for such taxes.
3.5 LOSS OF EQUIPMENT. Lessee shall bear the entire risk of the
Equipment being lost, destroyed or otherwise permanently unfit or unavailable
for use from any cause whatsoever (an "EVENT OF LOSS") after it has been
delivered to common carrier for shipment to Lessee. If an Event of Loss shall
occur with respect to any item of Equipment, Lessee shall promptly notify Lessor
thereof in writing. On the rental payment date following Lessor's receipt of
such notice, Lessee shall pay to Lessor an amount equal to the rental payment or
payments due and payable with respect to such item of Equipment on or prior to
such date, plus a sum equal to the Casualty Value of such item of Equipment as
of the date of such payment as set forth in such Lease. Upon the making of such
payment by Lessee regarding any item of Equipment, the Rent for such item of
Equipment shall cease to accrue, the term of this Lease as to such item of
Equipment shall terminate and (except in the case of loss, theft or complete
destruction) Lessor shall be entitled to recover possession of such item of
Equipment in accordance with the provisions of Section 3.3 above. Provided that
Lessor has received the Casualty Value of any item of Equipment, Lessee shall be
entitled to the proceeds of any recovery in respect of such item of Equipment
from insurance or otherwise.
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 (including so-called extended coverage), as a
result of theft and such other risks of loss as are normally maintained on
equipment of the type leased hereunder by company's carrying on the business in
which Lessee is engaged, in such amounts, in such form and with such insurers as
shall be satisfactory to Lessor. Each insurance policy will name Lessee as
insured and Lessor as an additional insured and loss payee thereof as Lessor's
interests may appear, and shall provide that it may not be canceled or altered
without at least thirty (30) days prior written notice thereof being given to
Lessor or its successor and assigns.
4.
5
3.7 INDEMNITY. Except with respect to the gross negligence or willful
misconduct of Lessor, Lessee hereby Indemnities, protects, defends and holds
harmless Lessor and its successors and assigns, from and against any and all
claims, liabilities (including negligence, tort and strict liabilities),
demands, actions, suits, and proceedings, losses, costs, expenses and damages,
including without limitation, reasonable attorneys' fees and costs
(collectively, "Claims"), arising out of, connected with, or resulting from
this Agreement, any Lease or any of the Equipment, including, without
limitation, the manufacture, selection, purchase, delivery, possession,
condition, use, operation, or return of the Equipment. Each of the parties
shall give the other prompt written notice of any Claim of which it becomes
aware. The provisions of this Section 3.7 shall survive the expiration or
termination of this Agreement or any Lease.
3.8 PROHIBITIONS RELATED TO LEASE AND EQUIPMENT. Without the prior
written consent of Lessor, which consent as it pertains to subsections (b) and
(d) below shall not be unreasonably withheld, Lessee shall not: (a) assign,
transfer, pledge, encumber, hypothecate or otherwise dispose of this Lease or
any rights or obligations thereunder; (b) sublease any of the Equipment; (c)
create or incur, or permit to exist, any lien or encumbrance with respect to
any of the Equipment, or any part thereof; (d) move any of the Equipment from
the location at which it is first installed; or (e) permit any of the Equipment
to be moved outside the continental limits of 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. 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 its
operating condition that existed at the time it became subject to the
applicable Lease.
3.11 EQUIPMENT TO BE PERSONAL PROPERTY. Lessee acknowledges and
represents that the Equipment shall be and remain personal property,
notwithstanding the manner in which it may be attached or affixed to realty,
and Lessee shall do all acts and enter into all agreements necessary to ensure
that the Equipment remains personal property.
3.12 FINANCIAL STATEMENTS. Lessee shall promptly furnish to Lessor
such financial or other statements respecting the condition and operations of
Lessee, and information respecting the Equipment, as Lessor may from time to
time reasonably request.
5.
6
3.13 LESSEE REPRESENTATIONS. Lessee hereby represents that, with
respect to this Agreement and each Lease: (a) the execution, delivery and
performance thereof by Lessee have been duly authorized by all necessary
corporate action; and (b) the individual executing such document is duly
authorized to do so; (c) such document constitutes a legal, valid and binding
obligations of Lessee, enforceable in accordance with its terms.
IV. DEFAULT AND REMEDIES
4.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" hereunder: (a) Lessee shall fail to pay any
Rent or other payment due hereunder with five (5) days after it becomes due and
payable; (b) any representation or warranty of Lessee made in this Agreement,
any Lease, or in any document furnished pursuant to the provisions of this
Agreement or otherwise, shall prove to have been false or misleading in any
material respect as of the date when it was made; (c) Lessee shall fail to
perform any covenant, condition or agreement made by it under any Lease, and
such failure shall continue for twenty (20) days after its receipt of notice
thereof; (d) bankruptcy, receivership, insolvency, reorganization, dissolution,
liquidation or other similar proceedings shall be instituted by or against
Lessee or all or any part of its property under the Federal Bankruptcy Code or
other law of the United States or of any other competent jurisdiction, and, if
such proceeding is brought against Lessee, it shall consent thereto or shall
fail to cause the same to be discharged within thirty (30) days after it is
filed; (e) Lessee shall default under any agreement with respect to the
purchase or installation of any of the Equipment; or (f) Lessee or any
guarantor of Lessee's obligations under any Lease shall default under any other
agreement with Lessor or Cisco Systems, Inc.
4.2 REMEDIES. If an Event of Default hereunder shall occur and be
continuing, Lessor may exercise any one or more of the following remedies: (a)
terminate any or all of the Leases and Lessee's rights thereunder; (b) proceed,
by appropriate court action or actions, to enforce performance by Lessee of the
applicable covenants of any or all of the Leases or to recover damages for the
breach thereof; (c) recover from Lessee an amount equal to the sum of (i) all
accrued and unpaid Rent and other amounts due under any or all of the Leases
(ii) as liquidated damages for loss of a bargain and not as a penalty, the
present value of (A) the balance of all Rent and other amounts under any or all
of the Leases discounted at a rate of five percent (5%) per annum, and (B)
Lessor's estimated fair market value of the Equipment at the expiration of the
Original Term (d) personally, or by its agents, take immediate possession of
any or all of the Equipment from Lessee and, for such purpose, enter upon
Lessee's premises where any of the Equipment is located with or without notice
or process of law and free from all claims by Lessee; and (e) require the
Lessee to assemble the Equipment and deliver the Equipment to Lessor at a
location which is reasonably convenient to Lessor and Lessee. The exercise of
any of the foregoing remedies by Lessor shall not constitute a termination of
any Lease or this Agreement unless Lessor so notifies Lessee in writing.
6.
7
4.3 DISPOSITION OF EQUIPMENT. In the event, upon the occurrence of an
Event of Default, Lessor repossesses any of the Equipment, Lessor may sell or
lease any or all of such Equipment, at one or more public or private sales. The
proceeds of (i) any rental of the Equipment for the balance of the Original
Term (discounted to present value at the rate of five percent (5%) per annum or
(ii) any sale of the Equipment shall be applied to the payment of (A) all costs
and expenses (including, without limitation, reasonable attorneys' fees)
incurred by Lessor in retaking possession of, and removing, storing, repairing,
refurbishing and selling or leasing such Equipment and (B) the obligations of
Lessee to Lessor pursuant to this Agreement. Lessee shall remain liable to
Lessor for any deficiency.
V. MISCELLANEOUS
5.1 PERFORMANCE OF LESSEE'S OBLIGATIONS. Upon Lessee's failure to pay
Rent (or any other sum due hereunder) or perform any obligation hereunder when
due, Lessor shall have the right, but shall not be obligated, to pay such sum
or perform such obligation, whereupon such sum or cost of such performance
shall immediately become due and payable hereunder as additional Rent, with
interest thereon at the highest legal rate from the date such payment or
performance was made.
5.2 QUIET ENJOYMENT. So long as no Event of Default shall have
occurred and be continuing, neither Lessor nor its assignee shall interfere
with Lessee's right of quiet enjoyment and use of the Equipment.
5.3 FURTHER ASSURANCES. Lessee shall, upon the request of Lessor, from
time to time, execute and deliver such further documents and do such further
acts as Lessor may reasonably request in order fully to effect the purpose of
any Lease and Lessor's rights thereunder. Lessor is authorized to file a
financing statement, signed only by Lessor in accordance with the Uniform
Commercial Code or signed by Lessor as Lessee's attorney in fact, with respect
to any of the Equipment.
5.4 RIGHT AND REMEDIES. Each and every right and remedy granted to
Lessor under any Lease shall be cumulative and in addition to any other right
or remedy therein specifically granted or now or hereafter existing in equity,
at law, by virtue of statute or otherwise, and may be exercised by Lessor from
time to time concurrently or independently and as often and in such order as
Lessor may deem expedient. Any failure or delay on the part of Lessor in
exercising any such right or remedy, or abandonment or discontinuance of steps
to enforce the same, shall not operate as a waiver thereof or affect Lessor's
right thereafter to exercising the same. Waiver of any right or remedy on one
occasion shall not be deemed to be a waiver of any other right or remedy or of
the same right or remedy on any other occasion.
7.
8
5.5 NOTICES. Any notice, request, demand, consent, approval or other
communication provided for or permitted hereunder shall be in writing and shall
be conclusively deemed to have been received by a party hereto on the day it is
delivered to such party at its address set forth above (or at such other
addresses 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.
5.6 SECTION HEADINGS; COUNTERPARTS. Section headings are inserted for
convenience of reference only and shall not affect any construction or
interpretation of this Agreement. This Agreement and each Lease may be executed
in counterparts, and when so executed each counterpart shall be deemed to be an
original, and such counterparts together shall constitute one and the same
instrument.
5.7 ENTIRE LEASE. This Agreement and each Lease constitute the entire
agreement between Lessor and Lessee with respect to the lease of the Equipment.
No amendment of, or any consent with respect to, any provision of this Agreement
or any Lease 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 PROVIDED TO LESSEE IN
THIS AGREEMENT, LESSEE HEREBY WAIVES ANY AND ALL RIGHTS OR REMEDIES CONFERRED
UPON A LESSEE UNDER THE CALIFORNIA COMMERCIAL CODE, AND ANY OTHER APPLICABLE
SIMILAR CODE OR STATUTES OF ANOTHER JURISDICTION, WITH RESPECT TO A DEFAULT BY
LESSOR UNDER THIS AGREEMENT OR ANY LEASE.
5.8 SEVERABILITY. Should any provision of this Agreement or any Lease
be or become invalid, illegal, or unenforceable under applicable law, the other
provisions of this Agreement and such Lease shall not be affected and shall
remain in full force and effect.
5.9 ATTORNEYS' FEES. Should either party institute any action or
proceeding to enforce this Agreement or any Lease prevailing party shall be
entitled to receive from the other party all reasonable out-of-pocket costs and
expenses, including, without limitation, attorneys' fees.
5.10 GOVERNING LAW AND JURISDICTION. THIS LEASE SHALL BE GOVERNED IN
ALL RESPECTS BY THE LAWS OF THE STATE OF CALIFORNIA WITH RESPECT TO AGREEMENTS
ENTERED INTO, AND TO BE PERFORMED, ENTIRELY IN CALIFORNIA. LESSOR AND LESSEE
WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION ARISING FROM THIS AGREEMENT
OR ANY LEASE. LESSEE CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE
COURTS OF CALIFORNIA, AND THE FEDERAL COURTS SITTING IN THE STATE OF
CALIFORNIA, FOR THE RESOLUTION OF ANY DISPUTES HEREUNDER.
8.
9
5.11 SURVIVAL. All obligations of Lessee to make payments to Lessor
under any Lease or to indemnify Lessor, pursuant to Section 3.4 or 3.7 above,
with respect to a Lease, and all rights of Lessor hereunder with respect to a
Lease, shall survive the termination of such Lease.
LESSEE, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, ACKNOWLEDGES
THAT IT HAS READ THIS LEASE, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS
TERMS AND CONDITIONS.
LESSOR: LESSEE:
CISCO SYSTEMS CAPITAL PARK 'N VIEW, INC
CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇ By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ---------------------------
(Authorized Signature) (Authorized Signature)
▇▇▇ ▇▇▇▇▇▇▇
MANAGER, CUSTOMER SERVICE & OPERATIONS
CISCO SYSTEMS CAPITAL R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CFO
----------------------------------- ------------------------------
(Name/Title) (Legal Name/Title)
9/3/98 8/25/98
----------------------------------- ------------------------------
(Date) (Date)
9.
10
SCHEDULE ▇▇. ▇▇▇-▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇
THIS SCHEDULE NO. 001-000 (this "Lease") dated as of November 19, 1998, between
CISCO SYSTEMS CAPITAL CORPORATION ("Lessor"), having a principal place of
business at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and PARK 'N
VIEW, ("Lessee"), having a principal place of business at ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, supplements that certain Master Agreement to Lease
Equipment dated as of August 21, 1998, between Lessor and Lessee.
1. EQUIPMENT DESCRIPTION:
Equipment Cost
Manufacturer Unit ------------------
Qty. or Vendor Description Model New/Used Per Unit Total
---- --------- ----------- ----- -------- -------- -----
(SEE EXHIBIT A ATTACHED HERETO)
2. EQUIPMENT LOCATION:
Unit Description Street Address City County State Zip
---------------- -------------- ---- ------ ----- ---
{THE APPLICABLE EQUIPMENT LOCATIONS SHALL BE DESIGNATED "SHIP TO"
ADDRESS ON EACH INVOICE INCLUDED WITHIN EXHIBIT A ATTACHED HERETO.)
3. EQUIPMENT COST: The Cisco Hardware Cost leased equals $1,871,364.10.
The Maintenance Cost leased equals $566,463.12.
4. PAYMENT: Based on the Cisco Hardware Cost above and the Lease payment
factor of .02743, the monthly payment is $51,331.52. Based on the
Maintenance cost above and the Lease payment factor of .02778, the
monthly payment is $15,736.35.
5. LEASE TERM: The "Lease Term" of each Unit shall commence on the
Commencement Date (hereinafter defined) and shall consist of an
"Original Term" equal to Thirty-six (36) months. The "Commencement
Date" of this Lease shall be the earlier to occur of (i) the
Acceptance Certificate Execution Date specified in the Certificate of
Acceptance, or (ii) thirty (30) days after the date of shipment of the
Equipment. Notwithstanding any provision to the contrary contained in
the Master Agreement to Lease Equipment, Lessee shall be deemed to
accept the Equipment on the Commencement Date.
5A. Commencement Date for this Lease shall be: November 30, 1998.
6. RENT: The Rent for each Unit during the Original Term shall be payable
in Thirty-six (36) consecutive, equal monthly payments, in advance, on
the first day of each month, commencing on the first day of the month
immediately following the Commencement Date (unless the Commencement
Date is the first day of the month, in which case the first Rent
payment shall be due on such date). Lessor acknowledges and agrees
that no Rent shall be payable for the period commencing on the
Commencement Date (provided such date is not the first day of the
month) until, but not including, the first day of the month
immediately following the Commencement Date. The aggregate Rent
payment shall be in an amount equal to $67,067.86 plus any and all
applicable taxes.
The Rent for each Unit for any Automatic Extension shall be payable
monthly, in advance, and shall be in an amount equal to the Unit Rent
specified above, or its monthly equivalent if the Rent for such Unit
is specified for a period greater than one month.
6. FAIR MARKET PURCHASE OPTION: Provided that this Lease has not been
terminated earlier and no Incipient Default or Event of Default has
occurred and is continuing, not earlier than 90 days and not later
than 30 days before the end of the Lease Term, or in the event such
Lease Term has been extended before the end of any period for which
this Lease has been extended ("Renewal Term"), Lessee may as to all,
but not less than all, the Units deliver to Lessor a notice
tentatively electing to purchase such Units at the end of the Lease
Term, or Renewal Term, as the case may be, for an amount equal to the
Fair Market Value (as defined below) of each such Unit at the end of
such period. 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 Units. 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. If Lessee and Lessor cannot agree within
C-1
11
SCHEDULE NO. 001-000
30 days after Lessee's notice of tentative election, Fair Market Value
shall be determined by a qualified independent equipment appraiser
mutually satisfactory to Lessee and Lessor. If Lessee and Lessor fail
to agree upon a satisfactory independent equipment appraiser within 10
days following the end of the 30-day period referred to above, Lessee
and Lessor shall each within 5 days appoint a qualified independent
equipment appraiser and such appraisers shall jointly determine the
Fair Market Value of such Units. If, within 15 days after the
appointment of the last of these two appraisers, the appraisers cannot
agree upon the Fair Market Value of such Units, the two appraisers
shall, within 10 days, appoint a third appraiser and the Fair Market
Value of such Units shall be determined by the three appraisers, who
shall make their appraisals within 15 days following the appointment
of the third appraiser and the average of their three determinations
so made shall be deemed to be the Fair Market Value of such Units and
shall be conclusive and binding upon Lessor and Lessee. If either
party shall have failed to appoint an appraiser, the determination of
the Fair Market Value of such Units of the single appraiser appointed
by the other party shall be final.
At any time within the 15-day period following the determination of
the Fair Market Value of such Units, Lessee may deliver to Lessor a
further notice finally electing to purchase such Units. If no such
further notice is delivered by Lessee to Lessor within such period,
Lessee shall be deemed to have waived any right to purchase such
Units. At the end of the Lease Term or Renewal Terms, as appropriate,
if Lessee has finally elected to purchase such Units, Lessee shall
purchase from Lessor, and Lessor shall sell to Lessee, each such Unit
for a cash consideration equal to the Fair Market Value of such Unit,
and Lessor shall transfer title to each such Unit to Lessee without
recourse or warranty, except that Lessor shall represent and warrant
that it owns such Unit free and clear of any Lessor's Lien. All
appraisal fees and expenses shall be borne by Lessee.
8. TECHNOLOGY MIGRATION: After the 12th payment has been made (and
provided all payments are current), Lessee may, with 90-day notice to
Lessor, replace all or part of the leased Cisco-manufactured
equipment. In addition, a new Fair Market Value Lease must be executed
by Lessee at a value of at least 100% of the replaced equipment's
original cost. To effect this migration, Lessee will pay a "Technology
Migration Fee," which is reflected as a percentage of the replaced
equipment's original cost. The Technology Migration Fee may be
refinanced in the new lease or paid to the Lessor in one lump sum upon
signing a new lease. The Technology Migration Fee is as follows:
AFTER TECHNOLOGY AFTER TECHNOLOGY MIGRATION
PAYMENT MIGRATION FEE PAYMENT FEE
------- ------------- ------- --------------------
12 46.00 25 12.00
13 43.00 26 9.00
14 41.00 27 8.00
15 38.00 28 3.00
16 35.00 29 NONE
17 33.00 30 NONE
18 30.00 31 NONE
19 28.00 32 NONE
20 25.00 33 NONE
21 22.00 34 NONE
22 20.00 35 NONE
23 17.00 36 NONE
24 14.00
9. TERMS OF SCHEDULE: Lessor and Lessee agree that this Lease shall
constitute a lease of each Unit described in Section 1 of this Lease,
upon the Commencement Date with respect to such Unit in the form of
Annex B to this Lease. Each such Unit shall be subject to the terms and
conditions of is Lease, the Master Agreement to Lease Equipment, the
Casualty Value Table attached hereto as Annex A, and the standard Cisco
Terms and Conditions of Sale and Software License, the terms and
conditions of each of which are hereby incorporated by reference in
full in this Lease and made a part of this Lease to the same extent as
if such terms and conditions were set forth herein. Capitalized terms
used in this Lease which are not otherwise defined herein shall have
the meanings set forth in the Master Agreement to Lease Equipment
identified above.
C-2
12
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease to be duly
executed by their authorized representatives as of the date first above
written.
CISCO SYSTEMS CAPITAL CORPORATION, Lessor PARK 'N VIEW, Lessee
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇ By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------ --------------------------
Title: MANAGER, CUSTOMER SERVICE & OPERATIONS
CISCO SYSTEMS CAPITAL Title: CFO
---------------------------------- -----------------------
Date: 11/25/98 Date: 11/24/98
---------------------------------- -----------------------
C-3
13
ANNEX A
TO SCHEDULE NO. 001-000
CASUALTY VALUE TABLE
The Casualty Value of any Unit shall be an amount equal to the product of the
Equipment Cost of such Unit times the percentage below corresponding to the
number of the last Rent payment received by Lessor, plus any unpaid Rent with
respect to the Rent payment period during which the applicable Event of Loss
occurred.
After Rent Percentage After Rent Percentage
Payment No. Payment No.
1 108.55% 19 64.94%
2 106.23% 20 62.40%
3 103.90% 21 59.85%
4 101.55% 22 57.29%
5 99.20% 23 64.71%
6 96.83% 24 52.12%
7 94.45% 25 49.51%
8 92.06% 26 46.90%
9 89.65% 27 44.27%
10 87.24% 28 41.62%
11 84.81% 29 38.97%
12 82.37% 30 36.30%
13 79.92% 31 33.62%
14 77.45% 32 30.92%
15 74.98% 33 28.21%
16 72.49% 34 25.49%
17 69.98% 35 22.75%
18 67.47% 36 20.00%
14
ANNEX B
CERTIFICATE OF ACCEPTANCE
TO
SCHEDULE NO. 001-000
CERTIFICATE OF ACCEPTANCE NO. 1 (this "Acceptance Certificate") UNDER SCHEDULE
NO. 001-000 DATED AS OF November 19, 1998, TO MASTER AGREEMENT TO LEASE
EQUIPMENT DATED AS OF August 21, 1998 BETWEEN CISCO SYSTEMS CAPITAL CORPORATION,
Lessor, and PARK 'N VIEW, Lessee.
This Acceptance Certificate is issued pursuant to the Master Agreement to Lease
Equipment and Schedule designated above. Lessee acknowledges that each Unit
specified on Exhibit A(i) has been delivered to, inspected by, and accepted as
of this date for lease by Lessee, (ii) is of a size, design, capacity and
manufacture acceptable to Lessee and suitable for Lessee's purposes, (iii) is
in good working order, repair and condition, and (iv) has been installed to
Lessee's satisfaction or located, as the case may be, at the location specified
on Exhibit A.
Lessee confirms and agrees that (i) no Event of Default under any Lease entered
into pursuant to the Master Agreement to Lease Equipment has occurred and is
continuing and (ii) the representations and warranties in the Schedule
designated above are correct and complete as though made on and as of the date
hereof and shall continue to be correct and complete throughout the Lease Term
of each Unit accepted hereby.
The person signing this Acceptance Certificate on behalf of Lessee hereby
certifies that such person has read and acknowledges all terms and conditions
of the Lease, and is duly authorized to execute this Acceptance Certificate on
behalf of Lessee.
The terms used in this Acceptance Certificate shall have the same meanings
defined in the Master Agreement to Lease Equipment and the Schedule designated
above.
PARK 'N VIEW (Lessee)
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
(Authorized Signature)
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: CFO
-------------------------------
Acceptance Certificate Execution Date: 11/24/98
-------------------------------
BILLING INFORMATION:
ADDRESS: ▇▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------
ATTENTION: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
PHONE: ▇▇▇-▇▇▇-▇▇▇▇ EXT. 7943
--------------------------------
15
EXHIBIT A
TO
CERTIFICATE OF ACCEPTANCE NO. 1, to Schedule No. 001-000 dated November 19,
1998, to Master Agreement to Lease Equipment, dated August 21, 1998 between
CISCO SYSTEMS CAPITAL CORPORATION, Lessor and PARK 'N VIEW, Lessee.
Periodic
Primary Cost
Equipment Unit Rent (in I.D. or per
Qty. Mfg. or Vendor Description Model Term Dollars) New/Used Location Ser. No. Unit
---- -------------- ----------- ----- ---- -------- -------- -------- -------- ----
{SEE ATTACHED INVOICES)
Cisco Hardware Cost leased equals ...................$1,871,364.10.
Maintenance Cost leased equals ......................$566,463.12.
A-1
16
ANNEX C
TO
SCHEDULE NO. 001-000
CISCO SYSTEMS, INC. TERMS AND CONDITIONS OF SALE AND SOFTWARE LICENSE
The Terms and Conditions of Sale and Software License Agreement ("Agreement")
contained herein constitute the entire agreement between Cisco Systems, Inc.
("Cisco") and you ("Customer"). Cisco will not be bound by any terms of
Customer's order. No form of acceptance except Cisco's written acknowledgment
mailed to Customer, or Cisco's commencement of performance shall constitute
valid acceptance of Customer's order. Any such acceptance is expressly
conditioned on assent to the terms hereof and the exclusion of all other terms.
Customer shall be deemed to have assented to the terms hereof, whether or not
previously received, upon accepting delivery of anything shipped by Cisco. If
tender of these terms is deemed an offer, acceptance is expressly limited to
the terms hereof.
1. PRODUCTS
1.1 "Products" shall mean any hardware or software products identified on:
(a) Cisco's then current applicable price list; (b) any of Cisco's
proposals or quotations; or (c) any of Cisco's invoices.
1.2 Alterations to any Product which Cisco deems necessary to comply with
specifications, changed safety standards or governmental regulations,
to make a Product noninfringing with respect to any patent, copyright
or other proprietary interest, or to otherwise improve a Product may
be made at any time by Cisco without prior notice to or consent of
Customer and such altered Product shall be deemed fully conforming.
2. ORDERS
Customer shall purchase Products by issuing a written purchase order
signed by an authorized representative, indicating specific Products,
quantity, price, total purchase price, shipping instructions,
requested delivery dates, ▇▇▇▇-to and ship-to addresses, tax exempt
certifications, if applicable, and any other special instructions. Any
contingencies contained on such order are not binding upon Cisco.
Cisco will accept or reject orders according to its then-current
process. All orders are subject to acceptance by Cisco at its
corporate headquarters.
3. SHIPPING AND DELIVERY
3.1 Shipping dates will be established by Cisco upon receipt of orders
from Customer.
3.2 Customer has the right to defer Product shipment for no more than (30)
days from the scheduled shipping date, provided written notice is
received by Cisco at least fifteen (15) days before the originally
scheduled shipping date.
3.3 Canceled orders, rescheduled deliveries or Product configuration
changes made by Customer within ten (10) days of the original shipping
date will be subject to (a) acceptance by Cisco, and (b) a charge of
fifteen percent (15%) of the total Invoice amount. Cisco reserves the
right to reschedule delivery in cases of configuration changes made
within ten (10) days of scheduled shipment.
3.4 Shipping terms are FOB Origin (or, for international shipments, FCS
Origin (INCOTERMS 1990)) San Jose, California, or such other Cisco
designated shipping location. Risk of loss and title shall pass from
Cisco to Customer upon delivery to the carrier or Customer's
representative at the FOB (or FCA) point. Delivery shall be deemed
made upon transfer of possession to the carrier. Customer shall be
responsible for all freight, handling and insurance charges. Unless
given written instruction, Cisco shall select the carrier. In no event
shall Cisco have any liability in connection with shipment, nor shall
the carrier be deemed to be an agent of Cisco. Cisco shall not be
liable for damage or penalty for delay in delivery or for failure to
give notice of any delay.
3.5 Customer grants Cisco a security interest in Products purchased under
this Agreement to secure payment for those Products purchased. If
requested by Cisco, Customer agrees to execute financing statements to
perfect this security interest.
4. PRICES AND PAYMENT
4.1 Prices for Products shall be those specified in Cisco's then-current
applicable price list, as updated periodically by Cisco, less any
applicable discounts agreed upon by Cisco in writing. All prices are
FOB Origin (or, for international shipments, FCA Origin (INCOTERMS
19901) San Jose, California, or such other Cisco designated shipping
location.
4.2 All stated prices are exclusive of any taxes, fees and duties or other
amounts, however designated, and including without limitation, value
added and withholding taxes which are levied or based upon such
charges, or upon this Agreement. Any taxes related to Products
purchased or licensed pursuant to this Agreement shall be paid by
Customer or Customer shall present an exemption certificate acceptable
to the taxing authorities. Applicable taxes shall be billed as a
separate item on the invoice, to the extent possible.
4.3 Upon credit approval by Cisco, payment terms shall be net thirty (30)
days from date of shipment. All payments shall be made in U.S.
currency. If at any time Customer is delinquent in the payment of any
invoice or is otherwise in breach of this Agreement, Cisco may, at its
discretion, withhold shipment (including partial shipments) of any
order or may, at its option, require Customer to pre-pay for further
shipments. Any sum not paid by Customer when due shall bear interest
until paid at a rate of 1.5% per month (18% per annum), or the maximum
rate permitted by law, whichever is less.
C-1
17
5. SOFTWARE LICENSE
5.1 (a) If you are an end user customer, Cisco grants to Customer a
nonexclusive and nontransferable license to use the Cisco software
("Software") in object code form, and the supporting documentation,
solely on a single central processing unit owned or leased by Customer
or otherwise embedded In equipment provided by Cisco.
(b) If you are an authorized Cisco distributor, Cisco grants to
Customer a nonexclusive and nontransferable license to distribute,
only in the territory approved in writing by Cisco, directly to end
users, the Software features licensed, in object code form, and the
supporting documentation, solely for use on a single central
processing unit owned or leased by the end user or otherwise embedded
in equipment provided by Cisco.
(c) Customer may make one (1) archival copy of the Software provided
Customer affixes to such copy all copyright, confidentiality and
proprietary notices that appear on the original. Customer may not
sublicense, lease, rent or lend to any person its rights to use or
distribute, as applicable, the Software.
5.2 Cisco and its suppliers retain all title to, and, except as expressly
licensed herein, all rights to the Software, all copies thereof and
all related documentation and materials, and all of Cisco's service
marks, trademarks, trade names or any other designations. Any invoices
of Cisco purporting to cover such items do not convey title to, or
patent rights, copyrights or any other proprietary interest in, such
items to Customer.
5.3 Customer agrees, except as otherwise expressly authorized herein, not
to: (a) copy, in whole or in part, any Software or documentation; (b)
reverse compile or engineer the Products; or (c) remove any product
identification or notices of any proprietary or copyright restrictions
from the Products.
5.4 Customer agrees that aspects of the licensed materials, including the
specific design and structure of individual programs, constitute trade
secrets and/or copyrighted material of Cisco. Customer agrees not to
disclose, provide, or otherwise make available such trade secrets or
copyrighted material in any form to any third party without the prior
written consent of Cisco. Customer agrees to implement reasonable
security measures to protect such trade secrets and copyrighted
material.
5.5 Restricted Rights. Cisco's software is provided to non-DOD agencies
with RESTRICTED RIGHTS, and its supporting documentation is provided
with LIMITED RIGHTS. Use, duplication, or disclosure by the U.S.
Government is subject to the restrictions as set forth in subparagraph
(c) of the Commercial Computer Software - Restricted Rights clause at
FAR 52.227-19. In the event the sale is to a DOD agency, the U.S.
Government's rights in software, supporting documentation, and
technical data are governed by the restrictions in the Technical Data
Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202.
6. LIMITED WARRANTY
6.1 Notwithstanding any other provision hereof, Cisco's sole and exclusive
warranty obligations for the Products sold hereunder are set forth in
Cisco's Limited Warranty Statement delivered with the Product. If
Customer is an authorized Cisco distributor, Customer shall not make
any warranty commitment, whether written or oral, on Cisco's behalf.
6.2 CISCO DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING
THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR
ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
6.3 In no event shall Cisco's or its suppliers' liability to Customer,
whether in contract, tort (including negligence), or otherwise, exceed
the price paid by Customer under this Agreement. The foregoing
limitations shall apply even if the above-stated warranty fails of its
essential purpose.
6.4 IN NO EVENT WILL CISCO OR ITS SUPPLIERS BE LIABLE FOR ANY LOST
REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE
THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE
PRODUCT EVEN IF CISCO OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6.5 In all cases of Cisco direct U.S. purchase of Product, where a Product
is returned to Cisco, Customer shall call and obtain a Return Material
Authorization ("RMA") number from Cisco's customer service department.
For all nondirect international or multinational purchases, Customer
must contact the place from which the Product was purchased to obtain
its remedy.
6.6 For Product returned to Cisco, Customer is responsible for: (a) proper
packing of parts being shipped to Cisco, including description of the
failure and written specification of any other changes or alteration
of the Product, such as hardware or firmware updates; (b) insurance of
all packages for replacement cost; (c) shipment FOB Cisco's Repair
Center; (d) return of defective hardware to Cisco within ten (10) days
after issuance of the RMA number, or the list price of advanced
replacement hardware will be charged to Customer; and (e) compliance
with Cisco's RMA procedure for all shipments to Cisco, as follows: (i)
each request to Cisco for an RMA number must specify the number, type,
and serial number for each part to be replaced; Cisco will provide the
local RMA shipment address upon request; and (ii) Product sent back to
Cisco must agree exactly in the number, type, and serial numbers
associated with the RMA transaction.
7. PATENT AND COPYRIGHT INDEMNITY
7.1 Cisco will defend any claim, suit or proceeding brought against
Customer so far as it is based on a claim that any Product supplied
hereunder infringes a United States copyright or an existing United
States patent (as of the effective date of this Agreement), if
notified promptly in writing of the claim and given full authority,
information, and assistance for the defense. If such claim has
occurred, or in Cisco's opinion is likely to occur, Customer agrees to
permit Cisco, at its option and expense, either to procure for
Customer the right to continue using the Product or to replace or
modify the same so that it becomes noninfringing, or, if neither of
the foregoing alternatives is reasonably available, remove the Product
and refund Customer the price thereof as depreciated or amortized by
an equal annual amount over the lifetime of the Product as established
by Cisco.
7.2 Cisco has no liability for any claim based upon the combination,
operation, or use of any Product supplied hereunder with equipment,
devices, or software not supplied by Cisco, or for any claim based
upon alteration or modification of any Product supplied hereunder.
7.3 Customer shall defend and hold Cisco harmless against any expense,
judgment or loss for alleged infringement of any patents, copyrights
or other proprietary rights which result from Cisco's compliance with
Customer's designs, specifications or instructions.
C-2
18
7.4 Notwithstanding any other provisions hereof, Cisco shall not be
liable for any claim based on Customer use of the Products as shipped
after Cisco has informed the Customer of modifications or changes in
the Products required to avoid such claims and offered to implement
those modifications or changes, if such claim would have been avoided
by implementation of Cisco's suggestions.
7.5 THE FOREGOING STATES THE ENTIRE OBLIGATION OF CISCO WITH RESPECT TO
INFRINGEMENT OF PROPRIETARY RIGHTS. THE FOREGOING IS GIVEN TO
CUSTOMER SOLELY FOR ITS BENEFIT AND IN LIEU OF, AND CISCO DISCLAIMS,
ALL WARRANTIES OF NONINFRINGEMENT WITH RESPECT TO THE PRODUCTS.
8. EXPORT RESTRICTIONS
Customer shall obtain all licenses, permits and approvals required by
any government and shall comply with all applicable laws, rules,
policies and procedures of the U.S. Government. Customer will
indemnify and hold harmless Cisco for any violation or alleged
violation by Customer of such laws, rules, policies or procedures.
Customer shall not transmit, directly or indirectly, the Products or
any technical data (including processes and services) received from
Cisco, nor the direct product thereof, outside of the United States
without prior authorization of the U.S. Government if such
authorization is required.
9. CONFIDENTIAL INFORMATION
Customer shall hold confidential and shall not use or permit others
to use any confidential information identified as, such in writing
or orally by Cisco or information which Customer knows or has reason
to know is confidential, proprietary or trade secret information of
Cisco.
10. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING ELSE HEREIN, EXCEPT FOR CLAIMS OF PERSONAL
INJURY OR DEATH, ALL LIABILITY OF CISCO AND ITS SUPPLIERS UNDER THIS
AGREEMENT OR OTHERWISE SHALL BE LIMITED TO MONEY PAID TO CISCO UNDER
THIS AGREEMENT AND IN THE CASE OF DAMAGES RELATING TO ANY ALLEGEDLY
DEFECTIVE OR INFRINGING PRODUCT, SHALL, UNDER ANY LEGAL OR EQUITABLE
THEORY, BE FURTHER LIMITED TO THE PURCHASE PRICE PAID BY CUSTOMER FOR
SUCH PRODUCT.
11. CONSEQUENTIAL DAMAGES WAIVER
IN NO EVENT SHALL CISCO OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF
USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA, OR
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF CISCO
OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
12. GENERAL TERMS
12.1 The validity, interpretation, and performance of this Agreement shall
be controlled by and construed under the laws of the State of
California, United States of America, as if performed wholly within
the state and without giving effect to the principles of conflict of
law. The parties specifically disclaim the UN Convention on
Contracts for the International Sale of Goods.
12.2 Cisco shall not be liable for any delay or failure in performance
whatsoever due to acts of God, earthquakes, shortage of supplies,
transportation difficulties, labor disputes, riots, war, fire,
epidemics, and similar occurrences beyond Cisco's reasonable control.
12.3 No waiver of rights under this Agreement by either party shall
constitute a subsequent waiver of this or any other right under this
Agreement.
12.4 Neither this Agreement nor any rights under this Agreement, other
than monies due or to become due, shall be assigned or otherwise
transferred by Customer (by operation of law or otherwise) without
the prior written consent of Cisco. This Agreement shall bind and
inure to the benefit of the successors and permitted assigns of the
parties.
12.5 In the event that any of the terms of this Agreement become or are
declared to be illegal by any court of competent jurisdiction, such
terms shall be null and void and shall be deemed deleted from this
Agreement. All remaining terms of this Agreement shall remain in full
force and effect.
12.6 In the event of a breach of this Agreement, the breaching party shall
pay to the other party any reasonable attorneys' fees and other costs
and expenses incurred by the nonbreaching party in connection with
the enforcement of any provisions of this Agreement.
12.7 Neither party has the right or authority to, and shall not, assume or
create any obligation of any nature whatsoever on behalf of the other
party or bind the other party in any respect whatsoever.
12.8 This Agreement, including the Product warranty referenced herein,
constitutes the entire agreement between the parties hereto
concerning the subject matter of this Agreement, and there are no
conditions, understandings, agreements, representations or
warranties, expressed or implied, which are not specified herein.
This Agreement may only be modified by a written document executed by
authorized representatives of Cisco and Customer.
C-3
19
Schedule 001-000 Final
[LOGO] Cisco Systems Capital Corporation
PARK 'N VIEW
MLA# 1226
11/19/98
--------
Cust S.O. Invoice Equipment Shipping/ Invoice City-State
PO# P.O. Amount # Invoice # Date Description Qty Subtotal Taxes Handling Amount Location
----------------------------------------------------------------------------------------------------------------------------------
821981 $3,791,807.00 n/a 8093D00319 9/30/98 Cisco 3620 150 $1,209,471.00 $0.00 $0.00 $1,209,471.00 ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ 167
IGX32 1
n/a 8D92400439 9/24/98 Cisco 3620 50 $481,526.00 $0.00 $0.00 $461,526.00 Coral Springs, FL
Cisco 7204 1
Cisco MC3810 50
PIX Firewall 2
n/a 8D92901426 9/29/98 Invoice for $160,509.60 $0.00 $0.00 $160,509.60 Coral Springs, FL
New Installation
821981A $19,857.50 n/a 8102900843 10/29/98 Cisco 3640 1 $19,857.50 $0.00 $0.00 $19,857.50 Coral Springs, FL
--------------------------------------------
TOTAL $1,871,364.10 $0.00 $0.00 $1,871,364.10
============================================
INVOICE 3283187:
Ship-
ping/
Cust Maintenance Hand- Invoice City-State
PO# P.O. Amount Description Qty Subtotal Taxes ling Amount Location
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ $568,630.62 CON-SNT-2620 Contract: 1130588, 600 $260,100.00 $0.00 $0.00 $260,100.00 Coral
START DATE: 29-DEC-1998 END DATE: ▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
CON-SNT-MC3810 Contract: 1130588, 651 $282,208.50 $0.00 $0.00 $282,208.50
START DATE: 29-DEC-1998 END DATE: 28-DEC-2001
CON-SNT-IGX32 Contract: 1130588, 3 $10,065.87 $0.00 $0.00 $10.065.87
START DATE: 29-DEC-1998 END DATE: 28-DEC-2001
CON-SNT-7204 Contract: 1130588, 3 $5,418.75 $0.00 $0.00 $5,418.75
START DATE: 29-DEC-1998 END DATE: 28-DEC-2001
CON-SNT-PIX Contract: 1130588, 6 $6,502.50 $0.00 $0.00 $6,502.50
START DATE: 29-DEC-1998 END DATE: 28-DEC-2001
CON-SNT-3640 Contract: 1130588, 3 $2,167.50 $0.00 $0.00 $2,167.50
START DATE: 29-DEC-1998 END DATE: 28-DEC-2001
----------------------------------------
Maintenance Total $566,463.12 $0.00 $0.00 $566.463.12
========================================
Lease Payments:
-------------
Equipment $1,871,364.10 X LRF .02743*= $51,331.52/MO $2,437,827.22
=============
Maintenance $566,463.12 X LRF .02778 = $15,736.35/MO
TOTAL $67,067.86
*After H.15 adjustment
Commencement date: 11/30/98
Page 1
20
SCHEDULE ▇▇. ▇▇▇-▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇
THIS SCHEDULE NO. 002-000 (this "Lease") dated as of January 5,1999, between
CISCO SYSTEMS CAPITAL CORPORATION ("Lessor"), having a principal place of
business at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and PARK 'N
VIEW , ("Lessee"), having a principal place of business at ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, supplements that certain Master Agreement to Lease
Equipment dated as OF August 21, 1998, between Lessor and Lessee.
EQUIPMENT DESCRIPTION:
Equipment Cost
Manufacturer Unit ---------------------
Qty. or Vendor Description Model New/Used Per Unit Total
---- --------- ----------- ----- -------- -------- -----
{SEE EXHIBIT A ATTACHED HERETO}
2. EQUIPMENT LOCATION:
Unit Description Street Address City County State Zip
---------------- -------------- ---- ------ ----- ---
(THE APPLICABLE EQUIPMENT LOCATIONS SHALL BE DESIGNATED "SHIP TO"
ADDRESS ON EACH INVOICE INCLUDED WITHIN EXHIBIT A ATTACHED HERETO.)
3. EQUIPMENT COST: The Cisco Hardware Cost leased equals $896,577.00.
4. PAYMENT: Based on the Cisco Hardware Cost above and the Lease payment
factor of .02763, the monthly payment is $24,772.42
5. LEASE TERM: The "Lease Term" of each Unit shall commence on the
Commencement Date (hereinafter defined) and shall consist of an
"Original Term" equal to Thirty-six (36) months (which Original Lease
Term shall automatically be extended ("Automatic Extension") on a
month to month basis unless Lessee shall notify Lessor not later than
30 days prior to the end of the Lease Term or any extension thereof
of its election to terminate such lease term or extended term). The
"Commencement Date" of this Lease shall be the earlier to occur of
(i) the Acceptance Certificate Execution Date specified in the
Certificate of Acceptance, or (ii) thirty (30) days after the date of
shipment of the Equipment. Notwithstanding any provision to the
contrary contained in the Master Agreement to Lease Equipment, Lessee
shall be deemed to accept the Equipment on the Commencement Date.
5A. Commencement Date for this Lease shall be: 1/1/99.
6. RENT: The Rent for each Unit during the Original Term shall be
payable in Thirty-six (36) consecutive, equal monthly payments, in
advance, on the first day of each month, commencing on the first day
of the month immediately following the Commencement Date (unless the
Commencement Date is the first day of the month, in which case the
first Rent payment shall be due on such date). Lessor acknowledges
and agrees that no Rent shall be payable for the period commencing on
the Commencement Date (provided such date is not the first day of the
month) until, but not including, the first day of the month
immediately following the Commencement Date. The aggregate Rent
payment shall be in an amount equal to $24,772.42 plus any and all
applicable taxes.
The Rent for each Unit for any Automatic Extension shall be payable
monthly, in advance, and shall be in an amount equal to the Unit Rent
specified above, or its monthly equivalent if the Rent for such Unit
is specified for a period greater than one month.
C-1
21
SCHEDULE NO. 002-000
7. FAIR MARKET PURCHASE OPTION: Provided that this Lease has not been
terminated earlier and no Incipient Default or Event of Default has
occurred and is continuing, not earlier than 90 days and not later
than 30 days before the end of the Lease Term, or in the event such
Lease Term has been extended before the end of any period for which
this Lease has been extended ("Renewal Term"), Lessee may as to all,
but not less than all, the Units deliver to Lessor a notice
tentatively electing to purchase such Units at the end of the Lease
Term, or Renewal Term, as the case may be, for an amount equal to the
Fair Market Value (as defined below) of each such Unit at the end of
such period. 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 Units. 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. If Lessee and Lessor cannot agree within
30 days after Lessee's notice of tentative election, Fair Market Value
shall be determined by a qualified independent equipment appraiser
mutually satisfactory to Lessee and Lessor. If Lessee and Lessor fail
to agree upon a satisfactory independent equipment appraiser within 10
days following the end of the 30-day period referred to above, Lessee
and Lessor shall each within 5 days appoint a qualified independent
equipment appraiser and such appraisers shall jointly determine the
Fair Market Value of such Units. If, within 15 days after the
appointment of the last of these two appraisers, the appraisers cannot
agree upon the Fair Market Value of such Units, the two appraisers
shall, within 10 days, appoint a third appraiser and the Fair Market
Value of such Units shall be determined by the three appraisers, who
shall make their appraisals within 15 days following the appointment
of the third appraiser and the average of their three determinations
so made shall be deemed to be the Fair Market Value of such Units and
shall be conclusive and binding upon Lessor and Lessee. If either
party shall have failed to appoint an appraiser, the determination of
the Fair Market Value of such Units of the single appraiser appointed
by the other party shall be final.
At any time within the 15-day period following the determination of
the Fair Market Value of such Units, Lessee may deliver to Lessor a
further notice finally electing to purchase such Units. If no such
further notice is delivered by Lessee to Lessor within such period,
Lessee shall be deemed to have waived any right to purchase such
Units. At the end of the Lease Term or Renewal Terms, as appropriate,
if Lessee has finally elected to purchase such Units, Lessee shall
purchase from Lessor, and Lessor shall sell to Lessee, each such Unit
for a cash consideration equal to the Fair Market Value of such Unit,
and Lessor shall transfer title to each such Unit to Lessee without
recourse or warranty, except that Lessor shall represent and warrant
that it owns such Unit free and clear of any Lessor's Lien. All
appraisal fees and expenses shall be borne by Lessee.
8. TECHNOLOGY MIGRATION: After the 12th payment has been made (and
provided all payments are current), Lessee may, with 90-day notice to
Lessor, replace all or part of the leased Cisco-manufactured
equipment. In addition, a new Fair Market Value Lease must be executed
by Lessee at a value of at least 100% of the replaced equipment's
original cost. To effect this migration, Lessee will pay a "Technology
Migration Fee," which is reflected as a percentage of the replaced
equipment's original cost. The Technology Migration Fee may be
refinanced in the new lease or paid to the Lessor in one lump sum upon
signing a new lease. The Technology Migration Fee is as follows:
AFTER TECHNOLOGY AFTER TECHNOLOGY MIGRATION
PAYMENT MIGRATION FEE PAYMENT FEE
------- ------------- ------- ---
12 46.00 25 12.00
13 43.00 26 9.00
14 41.00 27 8.00
15 38.00 28 3.00
16 35.00 29 NONE
17 33.00 30 NONE
18 30.00 31 NONE
19 28.00 32 NONE
20 25.00 33 NONE
21 22.00 34 NONE
22 20.00 35 NONE
23 17.00 36 NONE
24 14.00
9. TERMS OF SCHEDULE: Lessor and Lessee agree that this Lease shall
constitute a lease of each Unit described in Section 1 of this Lease,
upon the Commencement Date with respect to such Unit in the form of
Annex B to this Lease. Each such Unit shall be subject to the terms and
conditions of this Lease, the Master Agreement to Lease Equipment, the
Casualty Value Table attached hereto as Annex A, and the standard Cisco
Terms and Conditions of Sale and Software License, the terms and
conditions of each of which are hereby incorporated by reference in
full in this Lease and made a part of this Lease to the same extent as
if such terms and conditions were set forth herein. Capitalized terms
used in this Lease which are not otherwise defined herein shall have
the meanings set forth in the Master Agreement to Lease Equipment
identified above.
C-2
22
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease to be duly
executed by their authorized representatives as of the date first above
written.
CISCO, SYSTEMS CAPITAL CORPORATION, Lessor PARK 'N VIEW, Lessee
By: /s/ By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------ --------------------------
Title:
Title: CEO
---------------------------------- -----------------------
Date: Date: 11/13/99
---------------------------------- -----------------------
C-3
23
ANNEX A
TO SCHEDULE NO. 002-000
CASUALTY VALUE TABLE
The Casualty Value of any Unit shall be an amount equal to the product of the
Equipment Cost of such Unit times the percentage below corresponding to the
number of the last Rent payment received by Lessor, plus any unpaid Rent with
respect to the Rent payment period during which the applicable Event of Loss
occurred.
After Rent After Rent
Payment No. Percentage Payment No. Percentage
----------- ---------- ----------- ----------
1 108.55% 19 64.94%
2 106.23% 20 62.40%
3 103.90% 21 59.85%
4 101.55% 22 57.29%
5 99.20% 23 54.71%
6 96.83% 24 52.12%
7 94.45% 25 49.51%
8 92.06% 26 46.90%
9 89.65% 27 44.27%
10 87.24% 28 41.62%
11 84.81% 29 38.97%
12 82.37% 30 36.30%
13 79.92% 31 33.62%
14 77.45% 32 30.92%
15 74.98% 33 28.21%
16 72.49% 34 25.49%
17 69.98% 35 22.75%
18 67.47% 36 20.00%
24
ANNEX B
CERTIFICATE OF ACCEPTANCE
TO
SCHEDULE NO. 002-000
CERTIFICATE OF ACCEPTANCE NO. 1 (this "Acceptance Certificate") UNDER SCHEDULE
NO. 002-000 DATED AS OF January 5, 1999, TO MASTER AGREEMENT TO LEASE
EQUIPMENT DATED AS OF August 21,1998 BETWEEN CISCO SYSTEMS CAPITAL CORPORATION,
Lessor, and PARK 'N VIEW, Lessee.
This Acceptance Certificate is issued pursuant to the Master Agreement to Lease
Equipment and Schedule designated above. Lessee acknowledges that each Unit
specified on Exhibit A (i) has been delivered to, inspected by, and accepted as
of this date for lease by Lessee, (ii) is of a size, design, capacity and
manufacture acceptable to Lessee and suitable for Lessee's purposes, (iii) is
in good working order, repair and condition, and (iv) has been installed to
Lessee's satisfaction or located, as the case may be, at the location specified
on Exhibit A.
Lessee confirms and agrees that (i) no Event of Default under any Lease entered
into pursuant to the Master Agreement to Lease Equipment has occurred and is
continuing and (ii) the representations and warranties in the Schedule
designated above are correct and complete as though made on and as of the date
hereof and shall continue to be correct and complete throughout the Lease Term
of each Unit accepted hereby.
The person signing this Acceptance Certificate on behalf of Lessee hereby
certifies that such person has read and acknowledges all terms and conditions
of the Lease, and is duly authorized to execute this Acceptance Certificate on
behalf of Lessee.
The terms used in this Acceptance Certificate shall have the same meanings
defined in the Master Agreement to Lease Equipment and the Schedule designated
above.
PARK 'N VIEW (Lessee)
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
(Authorized Signature)
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: CFO
-------------------------------
Acceptance Certificate Execution Date: 1/13/99
-------------------------------
BILLING INFORMATION:
ADDRESS: ▇▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------
ATTENTION: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
PHONE: ▇▇▇-▇▇▇-▇▇▇▇ EXT. 7943
--------------------------------
25
EXHIBIT A
TO
CERTIFICATE OF ACCEPTANCE NO. 1, to Schedule No. 002-000 dated
January 5, 1999, to Master Agreement to Lease Equipment, dated August 21,
1998 between CISCO SYSTEMS CAPITAL CORPORATION, Lessor and PARK 'N VIEW,
Lessee.
Periodic
Primary Cost
Equipment Unit Rent (in I.D. or per
Qty. Mfg. or Vendor Description Model Term Dollars) New/Used Location Ser. No. Unit
---- -------------- ----------- ----- ---- -------- -------- -------- -------- ----
{SEE ATTACHED SIEMENS INVOCIE NUMBER ▇▇▇▇▇▇▇▇▇▇)
Cisco Hardware Cost leased equals ...................$896,577.00.
A-1
26
ANNEX C
TO
SCHEDULE NO. 002-000
CISCO SYSTEMS, INC. TERMS AND CONDITIONS OF SALE AND SOFTWARE LICENSE
The Terms and Conditions of Sale and Software License Agreement ("Agreement")
contained herein constitute the entire agreement between Cisco Systems, Inc.
("Cisco") and you ("Customer"). Cisco will not be bound by any terms of
Customer's order. No form of acceptance except Cisco's written acknowledgment
mailed to Customer, or Cisco's commencement of performance shall constitute
valid acceptance of Customer's order. Any such acceptance is expressly
conditioned on assent to the terms hereof and the exclusion of all other terms.
Customer shall be deemed to have assented to the terms hereof, whether or not
previously received, upon accepting delivery of anything shipped by Cisco. If
tender of these terms is deemed an offer, acceptance is expressly limited to
the terms hereof.
1. PRODUCTS
1.1 "Products" shall mean any hardware or software products identified on:
(a) Cisco's then current applicable price list; (b) any of Cisco's
proposals or quotations; or (c) any of Cisco's invoices.
1.2 Alterations to any Product which Cisco deems necessary to comply with
specifications, changed safety standards or governmental regulations,
to make a Product noninfringing with respect to any patent, copyright
or other proprietary interest, or to otherwise improve a Product may
be made at any time by Cisco without prior notice to or consent of
Customer and such altered Product shall be deemed fully conforming.
2. ORDERS
Customer shall purchase Products by issuing a written purchase order
signed by an authorized representative, indicating specific Products,
quantity, price, total purchase price, shipping instructions,
requested delivery dates, ▇▇▇▇-to and ship-to addresses, tax exempt
certifications, if applicable, and any other special instructions. Any
contingencies contained on such order are not binding upon Cisco.
Cisco will accept or reject orders according to its then-current
process. All orders are subject to acceptance by Cisco at its
corporate headquarters.
3. SHIPPING AND DELIVERY
3.1 Shipping dates will be established by Cisco upon receipt of orders
from Customer.
3.2 Customer has the right to defer Product shipment for no more than (30)
days from the scheduled shipping date, provided written notice is
received by Cisco at least fifteen (15) days before the originally
scheduled shipping date.
3.3 Canceled orders, rescheduled deliveries or Product configuration
changes made by Customer within ten (10) days of the original shipping
date will be subject to (a) acceptance by Cisco, and (b) a charge of
fifteen percent (15%) of the total invoice amount. Cisco reserves the
right to reschedule delivery in cases of configuration changes made
within ten (10) days of scheduled shipment.
3.4 Shipping terms are FOB Origin (or, for international shipments, FCA
Origin (INCOTERMS 1990)) San Jose, California, or such other Cisco
designated shipping location. Risk of loss and title shall pass from
Cisco to Customer upon delivery to the carrier or Customer's
representative at the FOB (or FCA) point. Delivery shall be deemed
made upon transfer of possession to the carrier. Customer shall be
responsible for all freight, handling and insurance charges. Unless
given written instruction, Cisco shall select the carrier. In no event
shall Cisco have any liability in connection with shipment, nor shall
the carrier be deemed to be an agent of Cisco. Cisco shall not be
liable for damage or penalty for delay in delivery or for failure to
give notice of any delay.
3.5 Customer grants Cisco a security interest in Products purchased under
this Agreement to secure payment for those Products purchased. If
requested by Cisco, Customer agrees to execute financing statements to
perfect this security interest.
4. PRICES AND PAYMENT
4.1 Prices for Products shall be those specified in Cisco's then-current
applicable price list, as updated periodically by Cisco, less any
applicable discounts agreed upon by Cisco in writing. All prices are
FOB Origin (or, for international shipments, FCA Origin (INCOTERMS
1990)) San Jose, California, or such other Cisco designated shipping
location.
4.2 All stated prices are exclusive of any taxes, fees and duties or other
amounts, however designated, and including without limitation, value
added and withholding taxes which are levied or based upon such
charges, or upon this Agreement. Any taxes related to Products
purchased or licensed pursuant to this Agreement shall be paid by
Customer or Customer shall present an exemption certificate acceptable
to the taxing authorities. Applicable taxes shall be billed as a
separate item on the invoice, to the extent possible.
4.3 Upon credit approval by Cisco, payment terms shall be net thirty (30)
days from date of shipment. All payments shall be made in U.S.
currency. If at any time Customer is delinquent in the payment of any
invoice or is otherwise in breach of this Agreement, Cisco may, at its
discretion, withhold shipment (including partial shipments) of any
order or may, at its option, require Customer to pre-pay for further
shipments. Any sum not paid by Customer when due shall bear interest
until paid at a rate of 1.5% per month (18% per annum), or the maximum
rate permitted by law, whichever is less.
C-1
27
5. SOFTWARE LICENSE
5.1 (a) If you are an end user customer, Cisco grants to Customer a
nonexclusive and nontransferable license to use the Cisco software
("Software") in object code form, and the supporting documentation,
solely on a single central processing unit owned or leased by Customer
or otherwise embedded in equipment provided by Cisco.
(b) If you are an authorized Cisco distributor, Cisco grants to
Customer a nonexclusive and nontransferable license to distribute,
only in the territory approved in writing by Cisco, directly to end
users, the Software features licensed, in object code form, and the
supporting documentation, solely for use on a single central
processing unit owned or leased by the end user or otherwise embedded
in equipment provided by Cisco.
(c) Customer may make one (1) archival copy of the Software provided
Customer affixes to such copy all copyright, confidentiality and
proprietary notices that appear on the original. Customer may not
sublicense, lease, rent or lend to any person its rights to use or
distribute, as applicable, the Software.
5.2 Cisco and its suppliers retain all title to, and, except as expressly
licensed herein, all rights to the Software, all copies thereof and
all related documentation and materials, and all of Cisco's service
marks, trademarks, trade names or any other designations. Any invoices
of Cisco purporting to cover such Items do not convey title to, or
patent rights, copyrights or any other proprietary interest in, such
items to Customer.
5.3 Customer agrees, except as otherwise expressly authorized herein, not
to: (a) copy, in whole or in part, any Software or documentation; (b)
reverse compile or engineer the Products; or (c) remove any product
identification or notices of any proprietary or copyright restrictions
from the Products.
5.4 Customer agrees that aspects of the licensed materials, including the
specific design and structure of individual programs, constitute trade
secrets and/or copyrighted material of Cisco. Customer agrees not to
disclose, provide, or otherwise make available such trade secrets or
copyrighted material in any form to any third party without the prior
written consent of Cisco. Customer agrees to implement reasonable
security measures to protect such trade secrets and copyrighted
material.
5.5 Restricted Rights. Cisco's software is provided to non-DOD agencies
with RESTRICTED RIGHTS, and its supporting documentation is provided
with LIMITED RIGHTS. Use, duplication, or disclosure by the U.S.
Government is subject to the restrictions as set forth in subparagraph
(c) of the Commercial Computer Software - Restricted Rights clause at
FAR 52.227-19. In the event the sale is to a DOD agency, the U.S.
Government's rights in software, supporting documentation, and
technical data are governed by the restrictions in the Technical Data
Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202.
6. LIMITED WARRANTY
6.1 Notwithstanding any other provision hereof, Cisco's sole and exclusive
warranty obligations for the Products sold hereunder are set forth in
Cisco's Limited Warranty Statement delivered with the Product. If
Customer is an authorized Cisco distributor, Customer shall not make
any warranty commitment, whether written or oral, on Cisco's behalf.
6.2 CISCO DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING
THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR
ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
6.3 In no event shall Cisco's or its suppliers' liability to Customer,
whether in contract, tort (including negligence), or otherwise, exceed
the price paid by Customer under this Agreement. The foregoing
limitations shall apply even if the above-stated warranty fails of its
essential purpose.
6.4 IN NO EVENT WILL CISCO OR ITS SUPPLIERS BE LIABLE FOR ANY LOST
REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE
THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE
PRODUCT EVEN IF CISCO OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6.5 In all cases of Cisco direct U.S. purchase of Product, where a Product
is returned to Cisco, Customer shall call and obtain a Return Material
Authorization ("RMA") number from Cisco's customer service department.
For all nondirect international or multinational purchases, Customer
must contact the place from which the Product was purchased to obtain
its remedy.
6.6 For Product returned to Cisco, Customer is responsible for: (a) proper
packing of parts being shipped to Cisco, including description of the
failure and written specification of any other changes or alteration
of the Product, such as hardware or firmware updates; (b) insurance of
all packages for replacement cost; (c) shipment FOB Cisco's Repair
Center; (d) return of defective hardware to Cisco within ten (10) days
after issuance of the RMA number, or the list price of advanced
replacement hardware will be charged to Customer; and (e) compliance
with Cisco's RMA procedure for all shipments to Cisco, as follows: (i)
each request to Cisco for an RMA number must specify the number, type,
and serial number for each part to be replaced; Cisco will provide the
local RMA shipment address upon request; and (ii) Product sent back to
Cisco must agree exactly in the number, type, and serial numbers
associated with the RMA transaction.
7. PATENT AND COPYRIGHT INDEMNITY
7.1 Cisco will defend any claim, suit or proceeding brought against
Customer so far as it is based on a claim that any Product supplied
hereunder infringes a United States copyright or an existing United
States patent (as of the effective date of this Agreement), if
notified promptly in writing of the claim and given full authority,
information, and assistance for the defense. If such claim has
occurred, or in Cisco's opinion is likely to occur, Customer agrees to
permit Cisco, at its option and expense, either to procure for
Customer the right to continue using the Product or to replace or
modify the same so that it becomes noninfringing, or, if neither of
the foregoing alternatives is reasonably available, remove the Product
and refund Customer the price thereof as depreciated or amortized by
an equal annual amount over the lifetime of the Product as established
by Cisco.
7.2 Cisco has no liability for any claim based upon the combination,
operation, or use of any Product supplied hereunder with equipment,
devices, or software not supplied by Cisco, or for any claim based
upon alteration or modification of any Product supplied hereunder.
7.3 Customer shall defend and hold Cisco harmless against any expense,
judgment or loss for alleged infringement of any patents, copyrights
or other proprietary rights which result from Cisco's compliance with
Customer's designs, specifications or instructions.
C-2
28
7.4 Notwithstanding any other provisions hereof, Cisco shall not be
liable for any claim based on Customer use of the Products as shipped
after Cisco has informed the Customer of modifications or changes in
the Products required to avoid such claims and offered to implement
those modifications or changes, if such claim would have been avoided
by implementation of Cisco's suggestions.
7.5 THE FOREGOING STATES THE ENTIRE OBLIGATION OF CISCO WITH RESPECT TO
INFRINGEMENT OF PROPRIETARY RIGHTS. THE FOREGOING IS GIVEN TO
CUSTOMER SOLELY FOR ITS BENEFIT AND IN LIEU OF, AND CISCO DISCLAIMS,
ALL WARRANTIES OF NONINFRINGEMENT WITH RESPECT TO THE PRODUCTS.
8. EXPORT RESTRICTIONS
Customer shall obtain all licenses, permits and approvals required by
any government and shall comply with all applicable laws, rules,
policies and procedures of the U.S. Government. Customer will
indemnify and hold harmless Cisco for any violation or alleged
violation by Customer of such laws, rules, policies or procedures.
Customer shall not transmit, directly or indirectly, the Products or
any technical data (including processes and services) received from
Cisco, nor the direct product thereof, outside of the United States
without prior authorization of the U.S. Government if such
authorization is required.
9. CONFIDENTIAL INFORMATION
Customer shall hold confidential and shall not use or permit others
to use any confidential information identified as such in writing
or orally by Cisco or information which Customer knows or has reason
to know is confidential, proprietary or trade secret information of
Cisco.
10. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING ELSE HEREIN, EXCEPT FOR CLAIMS OF PERSONAL
INJURY OR DEATH, ALL LIABILITY OF CISCO AND ITS SUPPLIERS UNDER THIS
AGREEMENT OR OTHERWISE SHALL BE LIMITED TO MONEY PAID TO CISCO UNDER
THIS AGREEMENT AND IN THE CASE OF DAMAGES RELATING TO ANY ALLEGEDLY
DEFECTIVE OR INFRINGING PRODUCT, SHALL, UNDER ANY LEGAL OR EQUITABLE
THEORY, BE FURTHER LIMITED TO THE PURCHASE PRICE PAID BY CUSTOMER FOR
SUCH PRODUCT.
11. CONSEQUENTIAL DAMAGES WAIVER
IN NO EVENT SHALL CISCO OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF
USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA, OR
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF CISCO
OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
12. GENERAL TERMS
12.1 The validity, interpretation, and performance of this Agreement shall
be controlled by and construed under the laws of the State of
California, United States of America, as if performed wholly within
the state and without giving effect to the principles of conflict of
law. The parties specifically disclaim the UN Convention on
Contracts for the International Sale of Goods.
12.2 Cisco shall not be liable for any delay or failure in performance
whatsoever due to acts of God, earthquakes, shortage of supplies,
transportation difficulties, labor disputes, riots, war, fire,
epidemics, and similar occurrences beyond Cisco's reasonable control.
12.3 No waiver of rights under this Agreement by either party shall
constitute a subsequent waiver of this or any other right under this
Agreement.
12.4 Neither this Agreement nor any rights under this Agreement, other
than monies due or to become due, shall be assigned or otherwise
transferred by Customer (by operation of law or otherwise) without
the prior written consent of Cisco. This Agreement shall bind and
inure to the benefit of the successors and permitted assigns of the
parties.
12.5 In the event that any of the terms of this Agreement become or are
declared to be illegal by any court of competent jurisdiction, such
terms shall be null and void and shall be deemed deleted from this
Agreement. All remaining terms of this Agreement shall remain in full
force and effect.
12.6 In the event of a breach of this Agreement, the breaching party shall
pay to the other party any reasonable attorneys' fees and other costs
and expenses incurred by the nonbreaching party in connection with
the enforcement of any provisions of this Agreement.
12.7 Neither party has the right or authority to, and shall not, assume or
create any obligation of any nature whatsoever on behalf of the other
party or bind the other party in any respect whatsoever.
12.8 This Agreement, including the Product warranty referenced herein,
constitutes the entire agreement between the parties hereto
concerning the subject matter of this Agreement, and there are no
conditions, understandings, agreements, representations or
warranties, expressed or implied, which are not specified herein.
This Agreement may only be modified by a written document executed by
authorized representatives of Cisco and Customer.
C-3
29
Schedule 002-000 Final
[LOGO] Cisco Systems Capital Corporation
PARK 'N VIEW
MLA# 1226
1/6/99
------
Cust S.O. Invoice Equipment Shipping/ Invoice City-State
PO# P.O. Amount # Invoice # Date Description Qty Subtotal Taxes Handling Amount Location
----------------------------------------------------------------------------------------------------------------------------------
821981 $896,577.00 n/a ▇▇▇▇▇▇▇▇▇▇ 11/30/98 Cisco-3620 30 $896,577.00 $0.00 $0.00 $896,577.00 Coral Springs, FL
--------------------------------------------
TOTAL $896,577.00 $0.00 $0.00 $896,577.00
============================================
Lease Payments:
Equipment $896.577.00 X LRF .02763*= $24,772.42/MO
TOTAL $24,772.42
*After H.15 adjustment
Commencement date: 1/1/99