EXHIBIT 10.20
MASTER LEASE AND FINANCING AGREEMENT
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This Master Lease and Financing Agreement (together with Exhibits A through E
attached hereto and hereby made a part hereof, this "Master Agreement"), dated
as of November 24, 1999, is entered into by and between Compaq Financial
Services Corporation, a Delaware corporation ("Lessor"), and AltaVista Company,
a Delaware corporation ("Lessee"). Capitalized terms used in this Master
Agreement without definition have the meanings ascribed to them in Section 31.
1. PURPOSE OF MASTER AGREEMENT. The purpose of this Master Agreement is to set
forth the general terms and conditions upon which (a) Lessor shall lease to
Lessee and Lessee shall lease from Lessor items of Hardware, Software or both
(such Hardware and Software being collectively referred to as "Equipment", and
each such lease of Equipment being referred to as a "Lease"), and (b) Lessor
shall provide financing to Lessee (each such financing transaction being
referred to as a "Financing") for software program license fees, maintenance
fees, fees for other services and other one-time charges ("Financed Items")
Lessee desires to finance hereunder. In connection with its execution of this
Master Agreement, Lessee shall deliver to Lessor an Officer's Certificate in
form and substance acceptable to Lessor, executed by a duly authorized officer
of Lessee and certifying as to, among other things, Lessee's authority to enter
into this Master Agreement and Leases and Financings hereunder and the authority
of Lessee's officers or representatives specified therein to execute this Master
Agreement and all other Fundamental Agreements.
2. ALTERNATIVE COMMENCEMENT PROCEDURES. Subject to the other terms and
conditions contained in this Master Agreement and the applicable Schedule or
Advance Pricing Agreement, Lessee may, at its option, enter into individual
Leases and Financings with Lessor under either or both of the following
procedures:
A. TRADITIONAL PROCEDURE. (a) Execution of Schedule. Lessor and Lessee
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mutually agree to enter into a Lease, a Financing or both by executing a
Schedule in the form of Exhibit A with such changes as Lessor and Lessee shall
have mutually agreed upon in writing as conclusively evidenced by their
execution thereof. Each such Schedule shall specifically identify (by serial
number or other identifying characteristics) the items of Equipment to be leased
under such Schedule (other than items of System Software, which shall be deemed
to be items of Software leased under the Schedule pursuant to which the related
items of Hardware are leased), and the Financed Items to be financed under such
Schedule. Each Schedule, when executed by both Lessee and Lessor, together with
this Master Agreement, shall constitute a separate and distinct Lease, a
separate and distinct Financing, or a separate and distinct Lease and a separate
and distinct Financing, as the case may be, enforceable according to its terms.
In the event of any conflict between the terms of this Master Agreement and such
Schedule, the provisions of the Schedule shall govern.
(b) Acceptance; Initial Term of Leases and Term of Financings. Lessee shall
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accept the Equipment subject to a Lease and the Financed Items subject to a
Financing in accordance with Section 3. The Initial Term of each Lease and, if
applicable, the Term of any related Financing evidenced by a Schedule executed
pursuant to this Section 2.A shall begin on the Acceptance Date of the Equipment
subject to such Lease and shall continue for the period described in the
applicable Schedule. The Term of each Financing evidenced by a Schedule
executed pursuant to this Section 2.A that is unrelated to any Lease shall begin
on the Acceptance Date for the related Financed Items and shall continue for the
period described in the applicable Schedule.
(c) Adjustments to Schedule. Lessee acknowledges that the Total Cost of
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Equipment and Financed Items and the related Rent payments set forth in any
Schedule executed pursuant to this Section 2.A may be estimates, and if the
final invoice from the Seller specifies a Total Cost that is more or less than
the estimated Total Cost set forth in the Schedule, Lessee hereby authorizes
Lessor to adjust the applicable Total Cost and Rent payment on the Schedule to
reflect the final invoice amount (the "Final Invoice Amount"). However, if the
Final Invoice Amount exceeds the estimated Total Cost by more than 1%, Lessor
will notify Lessee and obtain Lessee's prior written approval of the
aforementioned adjustments. If Lessee fails to so approve any such adjustments
within 15 business days of Lessor's request, then the affected Schedule shall
terminate without penalty to either Lessor or Lessee and Lessee shall be solely
responsible for all obligations arising under the applicable Purchase Documents,
including, without limitation, the obligation to purchase Equipment and pay
Financed Items. All references in this Master Agreement and any Schedule to
Total Cost and Rent shall mean the amounts thereof specified in the applicable
Schedule, as adjusted pursuant to this paragraph. Lessee also acknowledges that
the Equipment and Financed Items described in a Schedule may differ from the
description of the Equipment and Financed Items set forth in the related
Acceptance Certificate and actually accepted by Lessee. Lessee hereby
authorizes Lessor to conform the description of the Equipment and Financed Items
set forth in any Schedule to the description thereof in the related Acceptance
Certificate. All references in the Master Agreement and any Schedule to the
Equipment subject to a Lease and the Financed Items subject to a Financing shall
mean the Equipment and Financed Items described in the applicable Schedule, as
conformed to the related Acceptance Certificate pursuant to this paragraph.
B. FUNDING CONSOLIDATION PROCEDURE. (a) Execution of Advance Pricing
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Agreement. Lessor and Lessee mutually agree to enter into one or more Leases,
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Financings or both by executing, from time to time, an Advance Pricing Agreement
in the form of Exhibit B with such changes as Lessor and Lessee shall have
mutually agreed upon in writing as conclusively evidenced by their execution
thereof. Subject to the following provisions of this Section 2.B, such Advance
Pricing Agreement shall constitute a commitment on the part of Lessor, during
the Commitment Period specified therein (i) to purchase Equipment of the type(s)
described therein and enter into one or more Leases of the same with Lessee at
the lease rates set forth therein, and (ii) to fund Financed Items of the
type(s) described therein and enter into one or more Financings of the same with
Lessee at the financing rates set forth therein; provided, however, that Lessor
shall under no circumstances be obligated to purchase Equipment or fund Financed
Items if (x) such purchase or funding would require Lessor to expend moneys in
excess of the Amount Available specified in the Advance Pricing Agreement less
the aggregate amount previously paid or committed to be paid by Lessor to
acquire Equipment or fund Financed Items during such Commitment Period, or (y)
any Lessee Default shall have occurred and be continuing under any Lease or
Financing or any event shall have occurred and be continuing which, with the
giving of notice or the passage of time or both, would constitute a Lessee
Default under any Lease or Financing, or (z) Lessee shall have failed to deliver
to Lessor any financial statements in accordance with the provisions of
paragraph (f) below or any material adverse change shall have occurred in
Lessee's financial or operating condition, as determined by Lessor in its sole
discretion, after the date of the last financial statements of Lessee delivered
to Lessor prior to the execution and delivery of such Advance Pricing Agreement.
(b) Lessor's Purchase of Equipment and Funding of Financed Items. Subject to
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the provisions of this Section 2.B and the applicable Advance Pricing Agreement,
Lessor shall, at Lessee's request made during the Commitment Period specified in
such Advance Pricing Agreement (i) purchase Equipment of the type(s) described
therein and enter into a Lease of such Equipment with Lessee, and (ii) fund
Financed Items of the type(s) described therein and enter into a Financing with
Lessee relating to such Financed Items. Until such time as Lessee shall have
executed and delivered to Lessor a Consolidating Schedule in accordance with
paragraph (d) below, each such Lease or Financing shall be governed by the terms
of this Master Agreement, the applicable Advance Pricing Agreement and the
Acceptance Certificate executed and delivered to Lessor by Lessee pursuant to
paragraph (c) below. Each such Acceptance Certificate shall specifically
identify (by serial number or other identifying characteristics) the items of
Equipment to be leased thereunder (other than items of System Software, which
shall be deemed to be items of Software leased together with the related items
of Hardware) and the Financed Items to be financed thereunder. Until Lessee
shall have executed and delivered to Lessor a Consolidating Schedule, each such
Acceptance Certificate, when executed and delivered by Lessee and accepted by
Lessor, together with this Master Agreement and the applicable Advance Pricing
Agreement, shall constitute a separate and distinct Lease, a separate and
distinct Financing, or a separate and distinct Lease and a separate and distinct
Financing, as the case may be, enforceable according to its terms. In the event
of any conflict among the terms of such documents, the provisions of such
Acceptance Certificate shall control over conflicting provisions in such Advance
Pricing Agreement or this Master Agreement and the provisions of such Advance
Pricing Agreement shall control over conflicting provisions in this Master
Agreement.
(c) Acceptance; Initial Term of Leases and Term of Financings. Lessee shall
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accept the Equipment subject to a Lease and the Financed Items subject to a
Financing in accordance with Section 3. The Initial Term of each Lease and, if
applicable, the Term of any related Financing evidenced by an Advance Pricing
Agreement and an Acceptance Certificate shall begin on the Acceptance Date of
the Equipment subject to such Lease and shall continue for the period
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determined pursuant to such Advance Pricing Agreement. The Term of each
Financing evidenced by an Advance Pricing Agreement and an Acceptance
Certificate that is unrelated to any Lease shall begin on the Acceptance Date
for the related Financed Items and shall continue for the period determined
pursuant to such Advance Pricing Agreement.
(d) Periodic Consolidation of Leases and Financings. All Leases and
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Financings commenced during a Consolidation Period (as specified in the
applicable Advance Pricing Agreement) pursuant to this Section 2.B shall be
consolidated into a single Schedule (a "Consolidating Schedule") in the form of
Exhibit C with such changes as Lessor and Lessee shall have agreed to as
conclusively evidenced by their execution thereof. Lessor shall prepare and
deliver to Lessee a Consolidating Schedule as of the close of each applicable
Consolidation Period. Lessee agrees to execute and deliver each Consolidating
Schedule to Lessor within 10 days after its receipt thereof from Lessor. From
and after Lessee's execution and delivery to Lessor of a Consolidating Schedule,
the Consolidating Schedule shall supersede the applicable Acceptance
Certificates and the Advance Pricing Agreement with respect to all Leases and
Financings commenced during the Consolidation Period to which such Consolidating
Schedule relates, and all such Leases shall be deemed to be a single, separate
and distinct Lease and all such Financings shall be deemed to be a single,
separate and distinct Financing, in each case governed by such Consolidating
Schedule and this Master Agreement and enforceable in accordance with its terms.
In the event of any conflict between the terms of this Master Agreement and such
Consolidating Schedule, the provisions of the Consolidating Schedule shall
govern.
(e) Failure of Lessee to Deliver Consolidating Schedule. If Lessee fails to
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execute and deliver to Lessor any Consolidating Schedule within 10 days after
its receipt thereof, Lessor may exercise its rights and remedies under Section
21 and 22 of this Master Agreement arising as a result of such failure, either
immediately or at any time during the Initial Term of the Leases or the Term of
the Financings to which such Consolidating Schedule relates. No delay in
exercising such rights or remedies shall operate as a waiver thereof. Lessee
acknowledges and agrees that Rent with respect to such Leases and Financings
shall be payable in the amounts and at the times determined pursuant to the
applicable Advance Pricing Agreement and Acceptance Certificates, regardless of
whether Lessee shall have received such Consolidating Schedule from Lessor or
executed and delivered the same to Lessor as of the time any such payment is
due.
(f) Financial Statements. Lessee shall, at all times during which any Advance
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Pricing Agreement is effective, deliver to Lessor its quarterly and annual
financial statements no later then 45 days after the end of each of Lessee's
fiscal quarters or 90 days after the end of each of Lessee's fiscal years, as
applicable. Such annual financial statements shall be audited and certified by
Lessee's independent certified public accountants.
3. ACCEPTANCE OF EQUIPMENT AND FINANCED ITEMS. (a) General. Lessee shall
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unconditionally and irrevocably accept all Equipment under a Lease and, if
applicable, all related Financed Items subject to a Financing as soon as such
Equipment is delivered and inspected by Lessee or, if acceptance requirements
for such Equipment, related Financed Items or both are specified in the
applicable Purchase Documents, as soon as such requirements are met. Lessee
shall evidence such acceptance by executing and delivering to Lessor a properly
completed Acceptance Certificate in substantially the form of (i) Exhibit D if
the Lease or the Lease and the related Financing, as the case may be, is
evidenced by a Schedule executed pursuant to Section 2.A, or (ii) Exhibit E if
the Lease or the Lease and the related Financing, as the case may be, is being
commenced pursuant to an Advance Pricing Agreement executed pursuant to Section
2.B. Lessee agrees (y) to inspect all Equipment as soon as reasonably
practicable after the delivery thereof to Lessee or, if acceptance requirements
for such Equipment or any related Financed Items are specified in the applicable
Purchase Documents, as soon as reasonably practicable after being advised by the
Supplier that such requirements have been met, and (z) to complete, execute and
deliver to Lessor such Acceptance Certificate as soon as reasonably practicable
after its satisfactory completion of such inspection. In the case of a
Financing of Financed Items unrelated to any Equipment subject to a Lease,
Lessee shall unconditionally and irrevocably accept such Financed Items as soon
as it shall have become liable to pay for such Financed Items, and shall
complete, execute and deliver to Lessor an Acceptance Certificate in
substantially the form of Exhibit D or Exhibit E (as applicable) as soon as
reasonably practicable thereafter.
(b) E-mail Acceptance. For its convenience and at its option, Lessee may
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accept Equipment and Financed Items by electronic mail in accordance with this
paragraph, in lieu of the execution and physical delivery of Acceptance
Certificates provided for in paragraph (a) above. Subject to the terms and
conditions set forth below, a Valid E-mail Acceptance Certificate shall
constitute an original and authentic written Acceptance Certificate, duly
executed and delivered by an authorized representative of Lessee. A "Valid E-
mail Acceptance Certificate" means an electronic facsimile of an Acceptance
Certificate in substantially the form of Exhibit D or Exhibit E (as applicable)
properly completed and sent by an Authorized Lessee Representative from his or
her Authorized Lessee E-mail Address to an Authorized Lessor E-mail Address by
an electronic mail message confirming Lessee's acceptance of the Equipment or
Financed Items described therein. Lessor shall provide to Lessee electronic file
copies of Exhibits D and E for Lessee's use under this paragraph. The
Authorized Lessee Representatives and their corresponding Authorized Lessee E-
mail Addresses and the Lessee Acceptance Confirmation Fax Number are as
specified in Section 29 or as designated by Lessee in a written notice executed
by a duly authorized officer of Lessee and delivered to Lessor in accordance
with Section 29. The Authorized Lessor E-mail Address(es) are specified in
Section 29. Lessee may unilaterally modify any of the Authorized Lessee
Representatives and Authorized Lessee E-mail Addresses and the Lessee Acceptance
Confirmation Fax Number by written notice of the modification executed by a duly
authorized officer of Lessee and delivered to Lessor in accordance with Section
29. Lessor may unilaterally modify any Authorized Lessor E-mail Address by
written notice of the modification executed by a duly authorized officer of
Lessor and delivered to Lessee in accordance with Section 29. Upon Lessor's
receipt of a Valid E-mail Acceptance Certificate from Lessee, Lessor shall
transmit to Lessee by confirmed facsimile transmission to the Lessee Acceptance
Confirmation Fax Number, a notice acknowledging Lessor's receipt of the Valid E-
mail Acceptance Certificate from Lessee. A Valid E-mail Acceptance Certificate
shall become effective and constitute Lessee's unconditional and irrevocable
acceptance of the Equipment or Financed Items described therein, as of the
Acceptance Date specified therein, at the end of the second business day
following the day on which Lessor shall have transmitted such notice unless
Lessee shall have delivered a written notice to Lessor in accordance with
Section 29 revoking such Valid E-mail Acceptance Certificate prior to the end of
such second business day. Lessor's transmission of such notice shall constitute
Lessor's acknowledgement and acceptance of the Valid E-mail Acceptance
Certificate. Lessee expressly waives any claim or defense that any Valid E-mail
Acceptance Certificate which was sent and became effective in accordance with
the above procedures does not constitute an original and authentic written
Acceptance Certificate, duly executed and delivered by Lessee.
4. LESSEE'S END-OF-LEASE-TERM OPTIONS; AUTOMATIC EXTENSION. Lessee shall have
the following options in respect of each Lease at the end of each of the Initial
Term, any Renewal Term and any optional extension of the Initial Term or any
Renewal Term:
A. Purchase Option. Lessee may elect, by delivering to Lessor an End-of-Term
Notice at least 90 days prior to the expiration of the Initial Term, any Renewal
Term or any optional extension of the Initial Term or any Renewal Term, to
purchase any or all Units of Equipment then subject to such Lease (other than
items of Software that may not be sold by Lessor under the terms of any
applicable License Agreement) for an amount equal to the Fair Market Value of
such Units of Equipment as of the end of the Then Applicable Term, provided no
Lessee Default shall have occurred and be continuing. In the event of such an
election, Lessee shall pay such amount to Lessor, in immediately available
funds, on or before the last day of the Then Applicable Term. If Lessee shall
have so elected to purchase any of the Units of Equipment, shall have so paid
the applicable purchase price and shall have fulfilled the terms and conditions
of this Master Agreement, then on the last day of the Then Applicable Term (i)
the Lease with respect to such Units of Equipment shall terminate and, except as
provided in Section 27, Lessee shall be relieved of all of its obligations in
favor of Lessor with respect to such Units of Equipment, and (ii) Lessor shall
transfer all of its interest in such Units of Equipment to Lessee "AS IS, WHERE
IS," without any warranty, express or implied, from Lessor, other than the
absence of any liens or claims by or through Lessor. In the event Lessor and
Lessee are unable to agree on the Fair Market Value of any Units of Equipment,
then the Fair Market Value of the Equipment shall be determined by a panel of
three appraisers, one chosen by each party with the third chosen by the other
two appraisers and all at the shared cost of Lessor and Lessee. Lessor and
Lessee shall implement the appraisal process expeditiously in order to complete
the purchase on or before the expiration date of the Lease. In particular, the
appraisers will be instructed to provide a written determination of Fair Market
Value within twenty (20) days after the selection of the panel, said selection
to be accomplished not less than seventy-five (75) days prior to the expiration
date of the Lease. The purchase price of the Equipment will be determined by
taking the average of the two appraisals arithmetically closest or if one
appraisal is the arithmetic average of the other two, then that appraisal shall
be determined to be the price. If the FairMarket Value has not been determined
at least fifty-five (55) days prior to the expiration date of the Lease or if it
is unacceptable to Lessee, Lessee reserves the
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right to revoke or alter its election to purchase at any time at least fifty
(50) days prior to the expiration date of the Lease.
B. Renewal Option. Lessee may elect, by delivering to Lessor an End-of-Term
Notice at least 90 days prior to the expiration of the Initial Term, any Renewal
Term, or any optional extension of the Initial Term or any Renewal Term, to
renew the Lease with respect to any or all Units of Equipment then subject to
such Lease (other than items of Software that may not be re-released by Lessor
under the terms of any applicable License Agreement) for an amount equal to the
Fair Rental Value of such Units of Equipment as of the end of the Then
Applicable Term. In the event of such an election, Lessee shall enter into a
mutually agreeable renewal agreement with Lessor ("Renewal Agreement") on or
before the last day of the Then Applicable Term confirming the Units of
Equipment as to which the Lease is to be renewed, the period for which the Lease
is to be renewed (the "Renewal Term"), and the amount of Rent and the times at
which such Rent is to be payable during the Renewal Term. In the event Lessor
and Lessee are unable to agree on the Fair Rental Value of any Units of
Equipment, Lessor shall, at Lessee's expense, select an independent appraiser to
conclusively determine such amount.
C. Return. Lessee may elect, by delivering to Lessor an End-of-Term Notice
at least 60 days prior to the expiration of the Initial Term, any Renewal Term
or any optional extension of the Initial Term or any Renewal Term, to return any
or all of the Units of Equipment then subject to such Lease in accordance with
Section 9 of this Master Agreement.
D. Optional Extension. Lessee may elect, by omitting to deliver to Lessor an
End-of-Term Notice at least 90 days prior to the expiration of the Initial Term
or any Renewal Term, to extend the Initial Term or such Renewal Term, as the
case may be. In that event, the Initial Term or such Renewal Term shall,
without any additional notice or documentation, be automatically extended for
successive calendar months with respect to all items of Equipment then subject
to such Lease through the end of the calendar month falling at least 90 days
after the date Lessee shall have delivered to Lessor an End-of-Term Notice with
respect to such Lease. For each calendar month that the Then Applicable Term of
such Lease is so extended, Lessee shall pay to Lessor Rent in an amount equal to
the monthly Rent payment in effect immediately prior to such extension (or the
appropriate pro rata portion of the Rent payment then in effect in the case of
Rent payable other than on a monthly basis), and all other provisions of this
Master Agreement and the applicable Schedule shall continue to apply.
If Lessee shall have delivered to Lessor an End-of-Term Notice with respect to
a Lease, but shall have subsequently failed to comply with its obligations
arising from its elections specified therein (e.g., Lessee shall have failed, on
or before the last day of the Then Applicable Term (i) to pay Lessor the
purchase price for Equipment to be purchased in accordance with Section 4.A
above, (ii) to execute a Renewal Agreement with respect to Equipment as to which
the Lease is to be renewed in accordance with Section 4.B above, or (iii) to
return to Lessor Equipment to be returned in accordance with Section 4.C above),
then the Then Applicable Term of such Lease shall, without any additional notice
or documentation, be automatically extended for successive calendar months with
respect to all items of Equipment as to which Lessee shall have so failed to
comply with its obligations through the end of the calendar month in which
Lessee shall have complied with such obligations. For each calendar month that
the Then Applicable Term of any Lease is so extended, Lessee shall pay to Lessor
Rent in an amount equal to the monthly Rent payment in effect immediately prior
to such extension (or the appropriate pro rata portion of the Rent payment then
in effect in the case of Rent payable other than on a monthly basis), and all
other provisions of this Master Agreement and the applicable Schedule shall
continue to apply. Notwithstanding any of the provisions of this Section 4 to
the contrary, if any Lessee Default shall have occurred and be continuing at any
time during the last 90 days of the Then Applicable Term of any Lease, Lessor
may cancel any Renewal Term or optional or other automatic extension of the Then
Applicable Term immediately upon written notice to Lessee.
5. RENT; LATE CHARGES; ADVANCE RENT. As rent ("Rent") for the Equipment under
any Lease and the Financed Items under any Financing, Lessee agrees to pay the
amounts specified in the applicable Schedule on the due dates specified in the
applicable Schedule. Lessee agrees to pay Lessor interest on any Rent payment
or other amount due hereunder that is not paid within 10 days of its due date,
at the rate of 1% per month (or such lesser rate as is the maximum rate
allowable under applicable law). Lessee shall pay to Lessor, with respect to
each Lease or Financing, the Advance Rent specified on the applicable Schedule,
if any. Any payment of Advance Rent shall be credited against the first Rent
payment payable by Lessee under the applicable Schedule and any excess Advance
Rent will be credited against the last Rent payment(s) payable by Lessee with
respect to the Initial Term of the applicable Lease or Financing. Advance Rent
shall be refunded to Lessee without interest only if Lessor declines to sign the
applicable Schedule.
6. LEASES AND FINANCINGS NON-CANCELABLE; NET LEASES; WAIVER OF DEFENSES TO
PAYMENT. IT IS SPECIFICALLY UNDERSTOOD AND AGREED THAT EACH LEASE AND
FINANCING HEREUNDER SHALL BE NON-CANCELABLE, AND THAT EACH LEASE HEREUNDER IS A
NET LEASE. LESSEE AGREES THAT IT HAS AN ABSOLUTE AND UNCONDITIONAL OBLIGATION
TO PAY ALL RENT AND OTHER AMOUNTS WHEN DUE. LESSEE IS NOT ENTITLED TO ABATE OR
REDUCE RENT OR ANY OTHER AMOUNT DUE, OR TO SET OFF ANY CHARGE AGAINST ANY SUCH
AMOUNT. LESSEE HEREBY WAIVES ANY RECOUPMENT, CROSS-CLAIM, COUNTERCLAIM OR ANY
OTHER DEFENSE AT LAW OR IN EQUITY TO ANY RENT PAYMENT OR OTHER AMOUNT DUE WITH
RESPECT TO ANY LEASE OR FINANCING, WHETHER ANY SUCH DEFENSE ARISES OUT OF THIS
MASTER AGREEMENT, ANY SCHEDULE, ANY CLAIM BY LESSEE AGAINST LESSOR, LESSOR'S
ASSIGNEES OR SUPPLIER, OR OTHERWISE. IF THE EQUIPMENT OR ANY FINANCED ITEM IS
NOT PROPERLY INSTALLED, DOES NOT OPERATE OR INTEGRATE AS REPRESENTED OR
WARRANTED BY SUPPLIER OR IS UNSATISFACTORY FOR ANY REASON WHATSOEVER, LESSEE
SHALL MAKE ANY CLAIM ON ACCOUNT THEREOF SOLELY AGAINST SUPPLIER AND SHALL
NEVERTHELESS PAY ALL SUMS DUE WITH RESPECT TO EACH LEASE AND EACH FINANCING.
7. ASSIGNMENT OF PURCHASE DOCUMENTS. Lessee assigns to Lessor all of Lessee's
right, title and interest in and to (a) the Equipment described in each
Schedule, and (b) the Purchase Documents relating to such Equipment. Such
assignment of the Purchase Documents is an assignment of rights only; nothing in
this Master Agreement shall be deemed to have relieved Lessee of any obligation
or liability under any of the Purchase Documents, except that, as between Lessee
and Lessor, Lessor shall pay for the Equipment within 20 days after Lessee's
delivery to Lessor of a properly completed and executed Acceptance Certificate
and all other documentation necessary to establish Lessee's acceptance of such
Equipment under the related Lease. Lessee represents and warrants that it has
reviewed and approved the Purchase Documents. In addition, if Lessor shall so
request, Lessee shall deliver to Lessor a document acceptable to Lessor whereby
Seller acknowledges and provides any required consent to such assignment. For
the avoidance of doubt, Lessee covenants and agrees that it shall at all times
during the Total Term of each Lease comply in all respects with the terms of any
License Agreement relating to any Equipment leased thereunder. IT IS ALSO
SPECIFICALLY UNDERSTOOD AND AGREED THAT NEITHER SUPPLIER NOR ANY SALESPERSON OF
SUPPLIER IS AN AGENT OF LESSOR OR LESSEE, NOR ARE THEY AUTHORIZED TO WAIVE OR
ALTER ANY TERMS OF THIS MASTER AGREEMENT OR ANY SCHEDULE.
8. ASSIGNMENT OF SUPPLIER WARRANTIES. To the extent permitted, Lessor hereby
assigns to Lessee, for the Total Term of any Lease, all Equipment warranties
provided by any Supplier in the applicable Purchase Documents. Lessee shall
have the right to take any action it deems appropriate to enforce such
warranties provided such enforcement is pursued in Lessee's name and at its
expense. In the event Lessee is precluded from enforcing any such warranty in
its name, Lessor shall, upon Lessee's request, take reasonable steps to enforce
such warranty. In such circumstances, Lessee shall, promptly upon demand,
reimburse Lessor for all out-of-pocket expenses incurred by Lessor in enforcing
the Supplier warranty. Any recovery resulting from any such enforcement efforts
shall be divided among Lessor and Lessee as their interests may appear.
9. EQUIPMENT RETURN REQUIREMENTS. On or before the last day of the Total Term
of each Lease (and any other time Lessee is required to return Equipment to
Lessor under the terms of this Master Agreement or any Schedule), Lessee shall
pack the Equipment to be returned to Lessor in accordance with the
manufacturer's guidelines and deliver such Equipment to Lessor at any
destination within the continental United States designated by Lessor. All
dismantling, packaging, transportation, in-transit insurance and shipping
charges shall be borne by Lessee, provided that Lessee shall not be responsible
for costs of shipping the Equipment more than 1500 miles from its location at
Lease expiration All Equipment shall be returned to Lessor in the same
condition and working order as when delivered to Lessee, reasonable wear and
tear excepted. One measure of reasonable wear and tear shall include but not be
limited to whether the returned Equipment would qualiy for maintenance service
by the Supplier at its then standard rates for Equipment of that age, if
available. Lessee shall be responsible for, and shall reimburse Lessor
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promptly on demand for, any cost incurred by Lessor to return the Equipment to
good working condition.
10. EQUIPMENT USE AND MAINTENANCE. Lessee is solely responsible for the
selection, installation, operation and maintenance of the Equipment and all
costs related thereto, including shipping charges. Lessee shall at all times
operate and maintain the Equipment in good working order, repair, condition and
appearance, and in accordance with the manufacturer's specifications and
recommendations. On prior notice to Lessee, on such timeframe as mutually
agreed by Lessor and Lessee to be reasonable, but in any event no less than 14
days beyond Lessor's request, Lessor and Lessor's agents shall have the right,
during Lessee's normal business hours, to enter the premises where the Equipment
is located for the purpose of inspecting the Equipment and observing its use.
If Lessor shall have provided to Lessee any tags or identifying labels, Lessee
shall, at its expense, affix and maintain in a prominent position on each item
of Equipment such tags or labels to indicate Lessor's ownership of the
Equipment. Except in the case of PC Equipment and Software, Lessee shall, at
its expense, enter into and maintain and enforce at all times during the Total
Term of each Lease a maintenance agreement to service and maintain the related
Equipment, upon terms and with a provider reasonably acceptable to Lessor.
11. EQUIPMENT OWNERSHIP; LIENS; LOCATION. As between Lessor and Lessee, Lessor
is the sole owner of the Equipment and has sole title thereto. Lessee shall not
make any representation to any third-party inconsistent with Lessor's sole
ownership of the Equipment. Lessee covenants that it will not pledge or
encumber the Equipment or Lessor's interest in the Equipment in any manner
whatsoever nor create or permit to exist any levy, lien or encumbrance thereof
or thereon except those created by or through Lessor. The Equipment shall
remain Lessor's personal property whether or not affixed to realty and shall not
become a fixture or be made to become a part of any real property on which it is
placed without Lessor's prior written consent. Lessee shall maintain the
Equipment so that it may be removed from any building in which it is placed
without any damage to the building or the Equipment. Lessee may relocate any
Equipment from the Equipment Location specified in the applicable Schedule to
another of its business locations within the United States, provided Lessee
remains in possession and control of the Equipment and notifies Lessor within no
more than thirty (30) days of such move specifying the new Equipment Location.
Notwithstanding the foregoing, Lessor agrees that computer equipment usable
outside of a fixed office environment, such as laptops, notebooks or palm pilots
may be relocated from the Equipment Location without notice or consent, provided
that (i) such relocation is made by the primary employee of Lessee in the
custody and control of such Equipment, (ii) the primary employee remains in
possession and control of the Equipment; and (iii) the primary employee's
principal office is the Equipment Location.
12. ALTERATIONS AND ADDITIONS TO EQUIPMENT. Lessee shall make no alterations
or additions to the Equipment, except those that (a) will not void any warranty
made by the Supplier of the Equipment, result in the creation of any security
interest, lien or encumbrance on the Equipment or impair the value or use of the
Equipment either at the time made or at the end of the Total Term of the
applicable Lease, and that are readily removable without damage to the Equipment
("Optional Additions"), or (b) are required by any applicable law, regulation or
order. All additions to the Equipment or repairs made to the Equipment, except
Optional Additions, become a part thereof and Lessor's property at the time
made; Optional Additions which have not been removed prior to the return of the
Equipment shall become Lessor's property upon such return.
13. INSURANCE. Lessee agrees to keep the Equipment insured at Lessee's
expense against all risks of loss from any cause whatsoever, including without
limitation, theft and damage. Lessee agrees that such insurance shall name
Lessor as a loss payee and cover not less than the Stipulated Loss Value of the
Equipment. Lessee also agrees that it shall carry commercial general liability
insurance in an amount not less than $2,000,000 total liability per occurrence
and cause Lessor and its affiliates to be named additional insureds under such
insurance. Each policy shall provide that the insurance cannot be canceled
without at least 30 days prior written notice to Lessor. Lessee shall provide
to Lessor (a) on or prior to the Acceptance Date for each Lease, and from time
to time thereafter, certificates of insurance evidencing such insurance coverage
throughout the Total Term of each Lease, and (b) upon Lessor's request, copies
of the insurance policies. If Lessee fails to provide Lessor with such
evidence, then Lessor will have the right, but not the obligation, to purchase
such insurance protecting Lessor at Lessee's expense. Lessee's expense shall
include the full premium paid for such insurance and any customary charges,
costs or fees of Lessor. Lessee agrees to pay such amounts in substantially
equal installments allocated to each Rent payment (plus interest on such amounts
at the rate of 1% per month or such lesser rate as is the maximum rate allowable
under applicable law).
14. RISK OF LOSS. In the event any Casualty Loss shall occur, on the next Rent
payment date Lessee shall, at its option (a) pay Lessor the Stipulated Loss
Value of the Equipment suffering the Casualty Loss, or (b) substitute and
replace each item of Equipment suffering the Casualty Loss with an item of
Substitute Equipment. If Lessee shall elect to pay the Stipulated Loss Value of
the Equipment suffering a Casualty Loss, upon Lessor's receipt in full of such
payment the applicable Lease shall terminate as it relates to such Equipment
and, except as provided in Section 27, Lessee shall be relieved of all
obligations under the applicable Lease as it relates to such Equipment. If
Lessee shall elect to replace Equipment suffering a Casualty Loss with items of
Substitute Equipment (i) the applicable Lease shall continue in full force and
effect without any abatement of Rent with such Substitute Equipment thereafter
being deemed to be Equipment leased thereunder, and (ii) Lessee shall deliver to
Lessor a bill of sale or other documentation, in either case in form and
substance satisfactory to Lessor, in which Lessee shall represent and warrant
that it has transferred to Lessor good and marketable title to all Substitute
Equipment, free and clear of all liens, encumbrances and claims of others. Upon
Lessor's receipt of such payment of Stipulated Loss Value in full, or such bill
of sale or other documentation, as the case may be, Lessor shall transfer to
Lessee all of Lessor's interest in the Equipment suffering the Casualty Loss "AS
IS, WHERE IS," without any warranty, express or implied, from Lessor, other than
the absence of any liens or claims by or through Lessor. In the event of any
repairable damage to any Equipment, the Lease shall continue with respect to
such Equipment without any abatement of Rent and Lessee shall at its expense
promptly cause such Equipment to be repaired to the condition it is required to
be maintained in pursuant to Section 10. Lessee shall notify Lessor of any
Casualty Loss or repairable damage to any Equipment as soon as reasonably
practicable after the date of any such occurrence.
15. TAXES. Lessor shall report and pay all Taxes now or hereafter imposed or
assessed by any governmental body, agency or taxing authority upon the purchase,
ownership, delivery, installation, leasing, rental, use or sale of the
Equipment, the Rent or other charges payable hereunder, or otherwise upon or in
connection with any Lease or Financing, whether assessed on Lessor or Lessee,
other than any such Taxes required by law to be reported and paid by Lessee.
Lessor and Lessee agree that the valuation of Equipment for personal property
tax filings shall be based upon assessments or valuations that are reasonable.
Lessee shall promptly reimburse Lessor for all such Taxes paid by Lessor,
together with any penalties or interest in connection therewith attributable to
Lessee's acts or failure to act, excluding (a) Taxes on or measured by the
overall gross or net income or items of tax preference of Lessor, (b) as to any
Lease or the related Equipment, Taxes attributable to the period after the
return of such Equipment to Lessor, and (c) Taxes imposed as a result of a sale
or other transfer by Lessor of any portion of its interest in any Lease or
Financing or in any Equipment except for a sale or other transfer to Lessee or a
sale or other transfer occurring after and during the continuance of any Lessee
Default.
16. GENERAL INDEMNITY. Lessee shall indemnify and hold harmless Lessor, its
employees, officers, directors, agents and assignees and, if requested by
Lessor, defend Lessor, its employees, officers, directors, agents and assignees,
from and against any and all Claims arising directly or indirectly out of or in
connection with any matter involving this Master Agreement, the Equipment or any
Lease or Financing, including but not limited to (a) the selection, manufacture,
purchase, acceptance, rejection, ownership, delivery, lease, financing,
possession, maintenance, use, condition, return or operation of any Equipment or
Financed Items or the enforcement of Lessor's rights under any Lease or
Financing; (b) any latent defect or other defect in any Equipment or Financed
Item, whether or not discoverable by Lessor or by Lessee; (c) any patent,
trademark or copyright infringement involving any Equipment or Financed Item;
(d) the condition of any Equipment or Financed Item arising or existing at any
time during the Total Term of any Lease or the Term of any Financing; and (e)
any breach by Lessee of any representation, warranty or covenant contained in
any Fundamental Agreement. Notwithstanding the foregoing, Lessee shall have no
obligation to indemnify or defend against any Claim arising solely as a result
of Lessor's gross negligence or willful misconduct.
17. TAX BENEFIT INDEMNITY. Each Lease is entered into on the assumption that
Lessor is the owner of the Equipment for tax purposes and is entitled to certain
federal and state tax benefits available to an owner of Equipment (collectively,
"Tax Benefits"), including without limitation, accelerated cost recovery system
deductions for 5-year property and deductions
4
for interest incurred by Lessor to finance the purchase of Equipment available
under the Code. Lessee represents, warrants and covenants to Lessor that (a)
Lessee is not a tax-exempt entity (as defined in Section 168(h) of the Code),
[(b) all Equipment will be used solely within the United States, and (c) Lessee
will take no position inconsistent with the assumption that Lessor is the owner
of the Equipment for federal and state tax purposes. If, due to any act or
omission of Lessee or any party acting through Lessee, or the breach or
inaccuracy of any representation, warranty or covenant of Lessee contained in
any Fundamental Agreement, Lessor reasonably determines that it cannot claim, is
not allowed to claim, loses or must recapture any or all of the Tax Benefits
otherwise available with respect to the Equipment subject to any Lease (a "Tax
Loss"), then Lessee shall, promptly upon demand, pay to Lessor an amount
sufficient to provide Lessor the same after-tax rate of return and aggregate
after-tax cash flow through the end of the Then Applicable Term of such Lease
that Lessor would have realized but for such Tax Loss.
18. COVENANT OF QUIET ENJOYMENT. So long as no Lessee Default exists, and no
event shall have occurred and be continuing which, with the giving of notice or
the passage of time or both, would constitute a Lessee Default, neither Lessor
nor any party acting or claiming through Lessor, by assignment or otherwise,
will disturb Lessee's quiet enjoyment of the Equipment during the Total Term of
the related Lease.
19. DISCLAIMERS AND LESSEE WAIVERS. LESSEE LEASES THE EQUIPMENT FROM LESSOR
"AS IS, WHERE IS". IT IS SPECIFICALLY UNDERSTOOD AND AGREED THAT (A) EXCEPT AS
EXPRESSLY SET FORTH IN SECTION 18, LESSOR MAKES ABSOLUTELY NO REPRESENTATIONS OR
WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
REPRESENTATION OR WARRANTY WITH RESPECT TO THE DESIGN, COMPLIANCE WITH
SPECIFICATIONS, QUALITY, OPERATION, OR CONDITION OF ANY EQUIPMENT OR FINANCED
ITEMS (OR ANY PART THEREOF), THE MERCHANTABILITY OR FITNESS OF EQUIPMENT OR
FINANCED ITEMS FOR A PARTICULAR PURPOSE, OR ISSUES REGARDING PATENT
INFRINGEMENT, TITLE AND THE LIKE; (B) LESSOR SHALL NOT BE DEEMED TO HAVE MADE,
BE BOUND BY OR LIABLE FOR, ANY REPRESENTATION, WARRANTY OR PROMISE MADE BY THE
SUPPLIER OF ANY EQUIPMENT OR FINANCED ITEMS (EVEN IF LESSOR IS AFFILIATED WITH
SUCH SUPPLIER); (C) LESSOR SHALL NOT BE LIABLE FOR ANY FAILURE OF ANY EQUIPMENT
OR FINANCED ITEMS OR ANY DELAY IN THE DELIVERY OR INSTALLATION THEREOF; (D)
LESSEE HAS SELECTED ALL EQUIPMENT AND FINANCED ITEMS WITHOUT LESSOR'S
ASSISTANCE; AND (E) LESSOR IS NOT A MANUFACTURER OF ANY EQUIPMENT. IT IS
FURTHER AGREED THAT LESSOR SHALL HAVE NO LIABILITY TO LESSEE, LESSEE'S
CUSTOMERS, OR ANY THIRD PARTIES FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF THIS MASTER AGREEMENT OR ANY SCHEDULE OR
CONCERNING ANY EQUIPMENT OR FINANCED ITEMS, OR FOR ANY DAMAGES BASED ON STRICT
OR ABSOLUTE TORT LIABILITY OR, EXCEPT TO THE EXTENT CONSTITUTING A LESSOR
DEFAULT, LESSOR'S NEGLIGENCE; PROVIDED, HOWEVER, THAT NOTHING IN THIS MASTER
AGREEMENT SHALL DEPRIVE LESSEE OF ANY RIGHTS IT MAY HAVE AGAINST ANY PERSON
OTHER THAN LESSOR. LESSOR AND LESSEE AGREE THAT THE LEASES AND THE FINANCINGS
SHALL BE GOVERNED BY THE EXPRESS PROVISIONS OF THIS MASTER AGREEMENT AND THE
OTHER FUNDAMENTAL AGREEMENTS AND NOT BY THE CONFLICTING PROVISIONS OF ANY
OTHERWISE APPLICABLE LAW. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, LESSEE WAIVES ANY RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A
OF THE UCC (INCLUDING, BUT NOT LIMITED TO, LESSEE'S RIGHTS, CLAIMS AND DEFENSES
UNDER UCC SECTIONS 2A-303 AND 2A-508 THROUGH 2A-522) AND THOSE RIGHTS NOW OR
HEREAFTER CONFERRED BY STATUTE OR OTHERWISE, IN EITHER CASE THAT ARE
INCONSISTENT WITH OR THAT WOULD LIMIT OR MODIFY LESSOR'S RIGHTS SET FORTH IN
THIS MASTER AGREEMENT.
20. LESSEE WARRANTIES. Lessee represents, warrants and covenants to Lessor
that: (a) ALL EQUIPMENT WILL BE USED FOR BUSINESS PURPOSES ONLY AND NOT FOR
PERSONAL, FAMILY OR HOUSEHOLD PURPOSES; (b) Lessee is a corporation duly
organized, validly existing and in good standing under applicable law; (c)
Lessee has the power and authority to enter into each of the Fundamental
Agreements; (d) all Fundamental Agreements are enforceable against Lessee in
accordance with their terms and do not violate or create a default under any
instrument or agreement binding on Lessee; (e) there are no pending or
threatened actions or proceedings before any court or administrative agency that
could have a material adverse effect on Lessee or any Fundamental Agreement,
unless such actions are disclosed to Lessor and consented to in writing by
Lessor; (f) Lessee shall comply in all material respects with all laws and
regulations the violation of which could have a material adverse effect upon the
Equipment or Lessee's performance of its obligations under any Fundamental
Agreement; (g) each Fundamental Agreement shall be effective against all
creditors of Lessee under applicable law, including fraudulent conveyance and
bulk transfer laws, and shall raise no presumption of fraud; and (h) all
financial statements and other related information furnished by Lessee shall be
prepared in accordance with generally accepted accounting principles and shall
fairly present Lessee's financial position as of the dates given on such
statements.
21. DEFAULT. Any of the following shall constitute a default by Lessee (a
"Lessee Default") under this Master Agreement and all Leases and Financings: (a)
Lessee fails to pay any Rent payment or any other amount payable to Lessor under
this Master Agreement or any Schedule within 10 business days after its due
date; or (b) Lessee defaults on or breaches any of the other terms and
conditions of any Material Agreement, and fails to cure such breach within 10
business days after written notice thereof from Lessor; or (c) any
representation or warranty made by Lessee in any Material Agreement proves to be
incorrect in any material respect when made or reaffirmed; or (d) Lessee or
Guarantor sells or otherwise disposes of all or substantially all of its assets,
consolidates with or merges with or into any entity or incurs a substantial
amount of indebtedness other than in the ordinary course of its business (unless
consented to in advance by Lessor which consent shall not be unreasonably
delayed or unreasonably withheld if the Lessor determines that the credit
strength of the proposed successor or survivor of such transaction would be
substantially equal to or greater than the credit strength of Lessee as
originally approved for financing by Lessor; or (e) Lessee or Guarantor
dissolves or otherwise terminates its existence, ceases to do business, or
becomes insolvent or fails generally to pay its debts as they become due; or (f)
any Equipment is levied against, seized or attached; or (g) Lessee or Guarantor
makes an assignment for the benefit of creditors; or (h) a proceeding under any
bankruptcy, reorganization, arrangement of debt, insolvency or receivership law
is filed by or against Lessee or Guarantor (and, if such proceeding is
involuntary, it is not dismissed within 60 days after the filing thereof) or
Lessee or Guarantor takes any action to authorize any of the foregoing matters;
or (i) any letter of credit or guaranty issued in support of a Lease or
Financing is revoked, breached, cancelled or terminated (unless consented to in
advance by Lessor); or (j) any Guarantor fails to fulfil its obligations in
favor of Lessor pursuant to its guaranty.
Any of the following shall constitute a default by Lessor (a "Lessor Default")
under this Master Agreement and (i) the applicable Lease(s) or Financing(s) in
the case of a Lessor Default described in clauses (w) or (x) below, or (ii) all
Leases and Financings in the case of a Lessor Default described in clauses (y)
or (z) below: (w) Lessor breaches its covenant of quiet enjoyment set forth in
Section 18 and fails or is unable to cure such breach within 10 days after
written notice thereof from Lessee; or (x) Lessor fails to pay Seller (or in the
case of Financed Items, Lessee or such other party as Lessee or Seller shall
have directed in writing) for any Equipment or Financed Items within 30 days
after Lessor's receipt of a properly completed and executed Acceptance
Certificate and all other documentation necessary to establish Lessee's
acceptance of such Equipment or Financed Items under a Lease or Financing,
respectively, and such failure continues for more than 10 days after written
notice thereof from Lessee; or (y) Lessor makes an assignment for the benefit of
creditors; or (z) a proceeding under any bankruptcy, reorganization, arrangement
of debt, insolvency or receivership law is filed by or against Lessor (and, if
such proceeding is involuntary, it is not dismissed within 60 days after the
filing thereof).
22. REMEDIES. If a Lessee Default occurs, Lessor may, in its sole discretion,
exercise one or more of the following remedies: (a) declare all amounts due and
to become due under any or all Leases and Financings to be immediately due and
payable; or (b) terminate this Master Agreement or any Lease or Financing; or
(c) take possession of, or render unusable, any Equipment wherever the Equipment
may be located, without demand or notice and without any court order or other
process of law in accordance with Lessee's reasonable security procedures, and
no such action shall constitute a termination of any Lease; or (d) require
Lessee to deliver the Equipment to a location specified by Lessor; or (e)
declare the Stipulated Loss Value for any or all Equipment to be due and payable
as liquidated damages for loss of a bargain and not as a penalty and in
5
lieu of any further Rent payments under the applicable Lease or Leases; or (f)
proceed by court action to enforce performance by Lessee of any Lease or
Financing and/or to recover all damages and expenses incurred by Lessor by
reason of any Lessee Default; or (g) terminate any other agreement that Lessor
may have with Lessee; or (h) exercise any other right or remedy available to
Lessor at law or in equity. Also, Lessee shall pay Lessor all costs and expenses
that Lessor may incur to maintain, safeguard or preserve the Equipment, and
other expenses incurred by Lessor in enforcing any of the terms, conditions or
provisions of this Master Agreement (including reasonable legal fees and
collection agency costs). Upon repossession or surrender of any Equipment,
Lessor shall lease, sell or otherwise dispose of the Equipment in a commercially
reasonable manner, with or without notice and at public or private sale, and
apply the net proceeds thereof to the amounts owed to Lessor hereunder, but only
after deducting (i) in the case of a sale, the estimated Fair Market Value of
the Equipment sold as of the scheduled expiration of the Then Applicable Term of
the related Lease, (ii) in the case of a lease, the rent due for any period
beyond the scheduled expiration of the Then Applicable Term of the related
Lease, and (iii) in either case, all expenses (including reasonable legal fees
and costs) reasonably incurred by Lessor in connection therewith; provided,
however, that Lessee shall remain liable to Lessor for any deficiency that
remains after any sale or lease of such Equipment. Any proceeds of any sale or
lease of such Equipment in excess of the amounts owed to Lessor hereunder shall
be retained by Lessor. Lessee agrees that with respect to any notice of a sale
required by law to be given, 10 days' notice shall constitute reasonable notice.
Upon payment of all past due Rent and the Stipulated Loss Value as provided in
clause (e) above, together with interest at the rate of 1-1/2% per month (or
such lesser rate as is the maximum rate allowable under applicable law) from the
date declared due until paid, Lessor will transfer to Lessee all of Lessor's
interest in the Equipment for which such Rent and Stipulated Loss Value has been
paid, which transfer shall be on an "AS IS, WHERE IS" basis, without any
warranty, express or implied, from Lessor, other than the absence of any liens
or claims by or through Lessor. These remedies are cumulative of every other
right or remedy given hereunder or now or hereafter existing at law or in equity
or by statute or otherwise, and may be enforced concurrently therewith or from
time to time.
If a Lessor Default occurs, Lessee's sole and exclusive remedies shall be
either (i) in the case of a Lessor Default as defined in Section 21 (x) of this
Master Agreement, to terminate the applicable Schedule as to any unpaid
Equipment after 15 days written notice to Lessor and Lessor has failed to remit
payment; or (ii) for any other Lessor Default, to recover by appropriate legal
proceedings any direct damages suffered by Lessee as a result of such Lessor
Default and any reasonable and necessary expenses (including, without
limitation, court costs and reasonable legal fees) incurred by Lessee in
connection therewith.
23. PERFORMANCE OF LESSEE'S OBLIGATIONS. If Lessee fails to perform any of
its obligations hereunder, Lessor may perform any act or make any payment that
Lessor deems reasonably necessary for the maintenance and preservation of the
Equipment and Lessor's interests therein; provided, however, that the
performance of any act or payment by Lessor shall not be deemed a waiver of, or
release Lessee from, the obligation at issue. All sums so paid by Lessor,
together with expenses (including legal fees and costs) incurred by Lessor in
connection therewith, shall be paid to Lessor by Lessee immediately upon demand.
24. TRUE LEASE; SECURITY INTEREST; MAXIMUM RATE. Each Lease is intended to be
a "Finance Lease" as defined in Article 2A of the UCC, and Lessee hereby
authorizes Lessor to file a financing statement to give public notice of
Lessor's ownership of the Equipment. Lessee, by its execution of each Schedule,
acknowledges that Lessor has informed it that (a) the identity of Seller is set
forth in the applicable Schedule, (b) Lessee is entitled under Article 2A to the
promises and warranties, including those of any third party, provided to Lessor
in connection with, or as a part of, the applicable Purchase Documents, and (c)
Lessee may communicate with Seller and receive an accurate and complete
statement of the promises and warranties, including any disclaimers and
limitations of them or of remedies. If (i) notwithstanding the express
intention of Lessor and Lessee to enter into a true lease, any Lease is ever
deemed by a court of competent jurisdiction to be a lease intended for security,
or (ii) Lessor and Lessee enter into a Lease with the intention that it be
treated as a lease intended as security by so providing in the applicable
Schedule, or (iii) Lessor and Lessee enter into a Financing, then to secure
payment and performance of Lessee's obligations under this Master Agreement and
all Leases and Financings, Lessee hereby grants Lessor a purchase money security
interest in the related Equipment and Financed Items and in all attachments,
accessories, additions, substitutions, products, replacements, rentals and
proceeds (including, without limitation, insurance proceeds) thereto as well as
a security interest in any other equipment financed pursuant to this Master
Agreement or any other agreement between Lessor and Lessee (collectively, the
"Collateral"). In any such event, notwithstanding any provisions contained in
this Master Agreement or in any Schedule, neither Lessor nor any Assignee shall
be entitled to receive, collect or apply as interest any amount in excess of the
maximum rate or amount permitted by applicable law. In the event Lessor or any
Assignee ever receives, collects or applies as interest any amount in excess of
the maximum amount permitted by applicable law, such excess amount shall be
applied to the unpaid principal balance and any remaining excess shall be
refunded to Lessee. In determining whether the interest paid or payable under
any specific contingency exceeds the maximum rate or amount permitted by
applicable law, Lessor and Lessee shall, to the maximum extent permitted under
applicable law, characterize any non-principal payment as an expense or fee
rather than as interest, exclude voluntary prepayments and the effect thereof,
and spread the total amount of interest over the entire term of this Master
Agreement and all Leases and Financings.
25. ASSIGNMENT. Lessor shall have the unqualified right to sell, assign,
pledge, transfer, mortgage or otherwise convey any part of its interest in this
Master Agreement, any Schedule or any Equipment, in whole or in part, without
prior notice to or the consent of Lessee. If any Lease is assigned, Lessee
shall (a) unless otherwise specified by Lessor and the Assignee, pay all amounts
due under the applicable Schedule to such Assignee, notwithstanding any defense,
setoff or counterclaim whatsoever that Lessee may have against Lessor or
Assignee; (b) not permit the applicable Schedule to be amended or the terms
thereof waived without the prior written consent of the Assignee; (c) not
require the Assignee to perform any obligations of Lessor, other than those that
are expressly assumed in writing by such Assignee; and (d) execute such
acknowledgments thereto as may be requested by Lessor or the Assignee. It is
further agreed that (i) each Assignee shall be entitled to all of Lessor's
rights, powers and privileges under the applicable Lease or Financing, to the
extent assigned; (ii) any Assignee may reassign its rights and interests under
the applicable Lease or Financing with the same force and effect as the
assignment described herein; and (iii) any payments received by the Assignee
from Lessee with respect to the assigned portion of the Lease or Financing
shall, to the extent thereof, discharge the obligations of Lessee to Lessor with
respect to the assigned portion of the Lease or Financing. Lessee acknowledges
that any assignment or transfer by Lessor or any Assignee shall not materially
change Lessee's obligations under the assigned Lease or Financing.
Upon Lessor's prior written consent, which shall not be unreasonably withheld,
Lessee may sublet the Equipment to another end user other than another leasing
company or other competitor of Lessor. No such sublease shall relieve Lessee of
its obligations under the Lease and Lessee shall be responsible for all costs
and expenses associated with such sublease, including, without limitation,
additional Taxes or any Tax Loss suffered by Lessor. Lessee may permit use of
the Equipment by its affiliates or independent contractors at the Equipment
Location provided it does not relinquish possession and control of the
Equipment. Any corporation which directly or indirectly through one or more
intermediaries controls, is controlled by, or is under common control with,
Lessee (a "Lessee Affiliate"), may enter into a Lease or Financing under and
subject to the terms and conditions of this Master Agreement by executing a
Schedule incorporating this Master Agreement by reference, in which case such
Lessee Affiliate shall be deemed, for purposes of such Lease or Financing to be
the "Lessee" under this Master Agreement. The undersigned Lessee hereby
unconditionally guarantees to Lessor the full and prompt payment, observance and
performance when due of all obligations of all Lessee Affiliates (collectively,
"Guaranteed Obligations") under all such Leases or Financing. The foregoing
guarantee is absolute, continuing, unlimited and independent and shall not be
affected, diminished or released for any reason whatsoever. The undersigned
Lessee waives diligence, presentment, demand for payment, protest or notice of
any Lessee Default or nonperformance by any Lessee Affiliate, all affirmative
defenses, offsets and counterclaims against Lessor, any right to the benefit of
any security or statute of limitations, and any requirement that Lessor proceed
first against a Lessee Affiliate or any collateral security. Until the
Guaranteed Obligations shall have been paid in full, Lessee shall have no right
of subrogation. In addition, Lessee shall have the right to assign its rights
with respect to any Lease or Financing, or sublease the Equipment leased
pursuant to any Lease or Financing, to any Lessee Affiliate without the consent
of Lessor; provided that any such sublease shall (i) expressly provide that the
sublessee's rights thereunder are subject and subordinate to the rights of
Lessor hereunder, and (ii) not contain any provisions which would constitute or
result in any Lessee Default hereunder. No such assignment or sublease shall
relieve Lessee of any of its obligations under the applicable Schedule or this
Master Agreement. Lessee shall promptly notify Lessor of any such assignment or
sublease and shall execute and deliver to Lessor or any Assignee, at Lessee's
expense, such documentation as Lessor or such Assignee may reasonably
6
require, including documentation to evidence and put third parties on notice of
Lessor's or such Assignee's interest in the Equipment. Lessee may not assign,
transfer or otherwise dispose of this Master Agreement, any Lease or Financing,
any Equipment or any interest therein.
26. FURTHER ASSURANCES. Lessee agrees to promptly execute and deliver to
Lessor such further documents and take such further action as Lessor may require
in order to more effectively carry out the intent and purpose of this Master
Agreement and any Schedule. Without limiting the generality of the foregoing,
Lessee agrees (a) to furnish to Lessor from time to time, its certified
financial statements, officer's certificates and appropriate resolutions,
opinions of counsel and such other information and documents as Lessor may
reasonably request, and (b) to execute and timely deliver to Lessor any
financing statements or other documents that Lessor deems necessary to perfect
or protect Lessor's security interest in the Collateral or to evidence Lessor's
interest in the Equipment. If Lessee fails to execute any document referred to
in clause (b) of the preceding sentence, Lessor or Lessor's agent is hereby
authorized to sign and file the same as Lessee's agent. It is also agreed that
Lessor or Lessor's agent may file as a financing statement, any lease document
(or copy thereof, where permitted by law) that Lessor deems appropriate to
perfect or protect Lessor's security interest in the Collateral or to evidence
Lessor's interest in the Equipment. Upon demand, Lessee will promptly reimburse
Lessor for any filing or recordation fees or expenses (including legal fees and
costs) incurred by Lessor in perfecting or protecting its interests in the
Equipment.
27. TERM OF MASTER AGREEMENT; SURVIVAL. This Master Agreement shall commence
and be effective upon the execution hereof by both parties and shall continue in
effect until terminated by either party by 30 days' prior written notice to the
other. However, no termination of this Master Agreement pursuant to the
preceding sentence shall be effective with respect to any Lease or Financing
that commenced prior to such termination until the expiration or termination of
such Lease or Financing and the satisfaction by Lessee of all of its obligations
hereunder with respect thereto. All representations, warranties and covenants
made by Lessee hereunder shall survive the termination of this Master Agreement
and shall remain in full force and effect. All of Lessor's rights, privileges
and indemnities under this Master Agreement or any Lease or Financing, to the
extent they are fairly attributable to events or conditions occurring or
existing on or prior to the expiration or termination of such Lease or
Financing, shall survive such expiration or termination and be enforceable by
Lessor and Lessor's successors and assigns.
28. WAIVER OF JURY TRIAL. LESSEE AND LESSOR HEREBY EXPRESSLY WAIVE ANY RIGHT
TO DEMAND A JURY TRIAL WITH RESPECT TO ANY ACTION OR PROCEEDING INSTITUTED BY
LESSOR OR LESSEE IN CONNECTION WITH THIS MASTER AGREEMENT OR ANY FUNDAMENTAL
AGREEMENT.
29. NOTICES. All notices, requests, demands, waivers and other communications
required or permitted to be given under this Master Agreement or any other
Fundamental Agreement shall be in writing and shall be deemed to have been duly
given if delivered personally or mailed via certified mail or a nationally
recognized overnight courier service, or sent by confirmed facsimile
transmission, addressed as follows (or such other address or fax number as
either party shall so notify the other):
If to Lessor:
- ------------
Compaq Financial Services Corporation
100 Woodbridge Center Drive, Suite 202
Woodbridge, New Jersey 07095
Attn: Vice President, Operations and Credit
Fax: (888) 202-4271
Authorized Lessor E-mail Address:
electronicacceptance@compaq.com
- -------------------------------
If to Lessee:
- ------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Attn:
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Fax:
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Authorized Lessee Representatives and Authorized Lessee E-mail Addresses:
- -------------------------------------------------------------------------------
Lessee Acceptance Confirmation Fax Number:
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30. MISCELLANEOUS.
(a) Governing Law. THIS MASTER AGREEMENT AND EACH LEASE AND FINANCING SHALL BE
GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE
STATE OF NEW YORK.
(b) Consent to Jurisdiction. Lessor and Lessee consent to the jurisdiction of
any local, state or Federal court located within the State of New York, and
waive any objection relating to improper venue or forum non conveniens to the
conduct of any proceeding in any such court.
(c) Credit Review. Lessee consents to a reasonable credit review by Lessor for
each Lease and Financing.
(d) Captions and References. The captions contained in this Master Agreement
and any Schedule are for convenience only and shall not affect the
interpretation of this Master Agreement. All references in this Master
Agreement to Sections and Exhibits refer to Sections hereof and Exhibits hereto
unless otherwise indicated.
(e) Entire Agreement; Amendments. This Master Agreement and all other
Fundamental Agreements executed by both Lessor and Lessee constitute the entire
agreement between Lessor and Lessee relating to the leasing of the Equipment and
the financing of Financed Items, and supersede all prior agreements relating
thereto, whether written or oral, and may not be amended or modified except in a
writing signed by the parties hereto.
(f) No Waiver. Any failure of either party to require strict performance by the
other party, or any written waiver by either party of any provision hereof,
shall not constitute consent or waiver of any other breach of the same or any
other provision hereof.
(g) Lessor Affiliates. Lessee understands and agrees that Compaq Financial
Services Corporation or any affiliate or subsidiary thereof may, as lessor,
execute Advance Pricing Agreements and Schedules under this Master Agreement, in
which event the terms and conditions of the applicable Advance Pricing Agreement
or Schedule and this Master Agreement as it relates to the lessor under such
Advance Pricing Agreement or Schedule shall be binding upon and shall inure to
the benefit of such entity executing such Advance Pricing Agreement or Schedule
as lessor, as well as any successors or assigns of such entity.
(h) Invalidity. If any provision of this Master Agreement or any Schedule shall
be prohibited by or invalid under law, such provision shall be ineffective only
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Master Agreement
or such Schedule.
(i) Counterparts. This Master Agreement may be executed in counterparts, which
collectively shall constitute one document.
31. DEFINITIONS. All capitalized terms used in this Master Agreement have the
meanings set forth below or in the Sections of this Master Agreement referred to
below:
"Acceptance Date" means, as to any Lease or Financing, the date Lessee shall
have accepted the Equipment or Financed Items subject to such Lease or Financing
in accordance with Section 3.
"Advance Pricing Agreement" means an Advance Pricing Agreement executed by
Lessor and Lessee pursuant to Section 2.B.
"Advance Rent" means, as to any Lease, Rent paid by Lessee in advance of the
Acceptance Date for the related Equipment or otherwise intended to be treated as
"Advance Rent" under this Master Agreement and the applicable Schedule.
"Amount Available" has the meaning specified in an Advance Pricing Agreement.
"Assignee" means any assignee of all or any portion of Lessor's interest in
this Master Agreement, any Schedule or any Equipment, whether such assignee
received the assignment of such interest from Lessor or a previous assignee of
such interest.
"Casualty Loss" means, with respect to any Equipment, the condemnation,
taking, loss, destruction, theft or damage beyond repair of such Equipment.
"Casualty Value" means, as to any Equipment, an amount determined as of the
date of the Casualty Loss or Lessee Default in question pursuant to a "Table of
Casualty Values" attached to the applicable Schedule or, if no "Table of
Casualty Values" is attached to the applicable Schedule, an amount equal to the
sum of (i) the present value as of the date of the Casualty Loss or Lessee
Default in question (discounted at 5% per annum, compounded monthly) of all Rent
payments payable after such date through the scheduled date of expiration of the
Then Applicable Term, plus (ii) the present value as of the date of the Casualty
Loss or Lessee Default in question (discounted at 5% per annum, compounded
monthly, from the scheduled date of expiration of the Then Applicable Term) of
an amount determined by multiplying the applicable
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casualty percentage specified below by the Total Cost of such Equipment. The
applicable casualty percentage shall be 35% for Equipment having an Initial Term
of less than 24 months; 30% for Equipment having an Initial Term of 24 months or
greater, but less than 36 months; 25% for Equipment having an Initial Term of 36
months or greater, but less than 48 months; and 20% for Equipment having an
Initial Term of 48 months or greater.
"Claims" means all claims, actions, suits, proceedings, costs, expenses
(including, without limitation, court costs, witness fees and attorneys' fees),
damages, obligations, judgments, orders, penalties, fines, injuries, liabilities
and losses, including, without limitation, actions based on Lessor's strict
liability in tort.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning specified in Section 24.
"Commitment Period" means the period during which Lessor will purchase
Equipment and fund Financed Items and enter into a Lease or Financing of the
same with Lessee pursuant to Section 2.B and an Advance Pricing Agreement at the
rates set forth in such Advance Pricing Agreement, which period shall be
specified in such Advance Pricing Agreement.
"Consolidating Schedule" has the meaning specified in Section 2.B(d).
"Consolidation Period" has the meaning specified in an Advance Pricing
Agreement.
"Daily Rent" means, as to any Lease or Financing, an amount equal to the per
diem Rent payable under the applicable Schedule (calculated on the basis of a
360 day year and 30 day months).
"End-of-Term Notice" means, as to any Lease, a written notice delivered by
Lessee to Lessor at least 90 days prior to the end of the Initial Term, any
Renewal Term or any optional extension of the Initial Term or any Renewal Term
setting forth Lessee's elections pursuant to Section 4 with respect to the
Equipment subject to such Lease. Each End-of-Term Notice shall specify with
particularity the Units of Equipment to be purchased by Lessee (if any), as to
which the Lease is to be renewed (if any) and that are to be returned to Lessor
(if any).
"Equipment Location" means, as to any Equipment, the address at which such
Equipment is located from time to time, as originally specified in the
applicable Schedule and as subsequently specified in a notice delivered to
Lessor pursuant to Section 11, if applicable.
"Equipment" has the meaning specified in Section 1.
"Fair Market Value" means the total price that would be paid for any specified
Equipment in an arm's length transaction between an informed and willing buyer
(other than a used equipment dealer) under no compulsion to buy and an informed
and willing seller under no compulsion to sell. Such total price shall not be
reduced by the costs of removing such Equipment from its current location or
moving it to a new location.
"Fair Rental Value" means the amount of periodic rent that would be payable
for any specified Equipment in an arm's length transaction between an informed
and willing lessee and an informed and willing lessor, neither under compulsion
to lease. Such amount shall not be reduced by the costs of removing such
Equipment from its current location or moving it to a new location.
"Final Invoice Amount" has the meaning set forth in Section 2.A (c).
"Financed Item" has the meaning specified in Section 1.
"Financing" has the meaning specified in Section 1.
"First Payment Date" means, as to any Lease or Financing, the date the first
Rent payment with respect to the Initial Term of such Lease or the Term of such
Financing (as applicable) is due, as determined pursuant to the terms of the
applicable Schedule.
"Fundamental Agreements" means, collectively, this Master Agreement, each
Advance Pricing Agreement, each Schedule and Acceptance Certificate and all
other related instruments and documents.
"Funding Date" means, with respect to any Financed Item, the date Lessor makes
funds available to the Seller of such Financed Item to pay for the same or to
Lessee to reimburse Lessee for its payment of the same.
"Guarantor" means any guarantor of all or any portion of Lessee's obligations
under this Master Agreement or any Lease or Financing.
"Hardware" means items of tangible equipment.
"Initial Term" means, as to any Lease, the initial term thereof as specified
in the related Schedule.
"Lease" has the meaning specified in Section 1.
"Lessee" has the meaning specified in the preamble hereof.
"Lessee Default" has the meaning specified in Section 21.
"Lessor" has the meaning specified in the preamble hereof.
"Lessor Default" has the meaning specified in Section 21.
"License Agreement" means any license agreement or other document granting the
purchaser the right to use Software or any technical information, confidential
business information or other documentation relating to Hardware or Software, as
amended, modified or supplemented by any other agreement between the licensor
and Lessor.
"Master Agreement" has the meaning specified in the preamble hereof.
"Material Agreements" means, collectively, all Fundamental Agreements, all
other material agreements by and between Lessor and Lessee, and any application
for credit, financial statement, or financial data required to be provided by
Lessee in connection with any Lease or Financing with lessor.
"Optional Additions" has the meaning specified in Section 12.
"PC Equipment" means, collectively, personal computers (e.g., workstations,
desktops and notebooks) and related items of peripheral equipment (e.g.,
monitors, printers and docking stations).
"Purchase Documents" means, as to any Equipment, any purchase order, contract,
bill of sale, License Agreement, invoice and/or other documents that Lessee has,
at any time, approved, agreed to be bound by or entered into with any Supplier
of such Equipment relating to the purchase, ownership, use or warranty of such
Equipment.
"Renewal Agreement" has the meaning specified in Section 4.
"Renewal Term" has the meaning specified in Section 4.
"Rent" has the meaning specified in Section 5.
"Schedule" means, unless the context shall otherwise require (a) in the case
of a Lease or Financing commenced pursuant to Section 2.A, a Schedule executed
by Lessor and Lessee pursuant to Section 2.A(a), and (b) in the case of a Lease
or Financing commenced pursuant to Section 2.B, (i) prior to Lessee's execution
and delivery to Lessor of a Consolidating Schedule pursuant to Section 2.B(d)
relating to such Lease or Financing, the applicable Certificate of Acceptance
together with the applicable Advance Pricing Agreement, and (ii) from and after
Lessee's execution and delivery to Lessor of a Consolidating Schedule pursuant
to Section 2.B(d) relating to such Lease or Financing, such Consolidating
Schedule.
"Seller" means, as to any Equipment, the seller of such Equipment, and as to
any Financed Item, the provider thereof, in either case as specified in the
applicable Schedule.
"Software" means copies of computer software programs owned or licensed by
Lessor.
"Stipulated Loss Value" means, as to any Equipment, an amount equal to the sum
of (i) all Rent and other amounts due and owing with respect to such Equipment
as of the date of payment of such amount, plus (ii) the Casualty Value of such
Equipment.
"Substitute Equipment" means, as to any item of Hardware or Software subject
to a Lease, a substantially equivalent or better item of Hardware or Software
having equal or greater capabilities and equal or greater Fair Market Value
manufactured or licensed by the same manufacturer or licensor as such item of
Hardware or Software subject to a Lease. The determination of whether any item
of Equipment is substantially equivalent or better than an item of Equipment
subject to a Lease shall be based on all relevant facts and circumstances, but
shall minimally require, in the case of a computer, that each of processor,
hard-drive, random access memory and CD ROM drive, if applicable, be equivalent
or better.
"Supplier" means (a) as to any Equipment, the Seller and the manufacturer or
licensor of such Equipment collectively, or where the context requires, any of
them, and (b) as to any Financed Item, the Seller thereof.
"System Software" means an item of Software that is pre-loaded on an item of
Hardware purchased by Lessor for lease hereunder for which the relevant Purchase
Documents specify no purchase price separate from the aggregate purchase price
specified for such items of Hardware and Software.
"Taxes" means all license and registration fees and all taxes, fees, levies,
imposts, duties, assessments, charges and withholding of any nature whatsoever,
however designated (including, without limitation, any value added, transfer,
sales, use, gross receipts, business, occupation, excise, personal property,
real property, stamp or other taxes).
"Tax Benefits" has the meaning specified in Section 17.
"Tax Loss" has the meaning specified in Section 17.
"Term" means, as to any Financing, the term thereof as specified in the
related Schedule.
"Then Applicable Term" means, as to any Lease, the term of the Lease in effect
at the time of determination, whether it be the Initial Term, any Renewal Term
or any optional or other automatic extension of the Initial Term or any Renewal
Term pursuant to Section 4.
"Total Cost" means (a) as to any Lease, the total acquisition cost to Lessor
of the Equipment subject to such Lease as set forth in the applicable Purchase
Documents, including related delivery, installation, taxes and other charges
which Lessor has agreed to pay and treat as a portion of such acquisition cost,
if any, and (b) as to any Financing, the total amount of the Financed Items
subject to such Financing.
"Total Term" means, as to any Lease, the aggregate term of such Lease,
including the Initial Term, any Renewal Term and any optional or other automatic
extension of the Initial Term or any Renewal Term pursuant to Section 4.
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"UCC" means the Uniform Commercial Code as enacted and in effect in any
applicable jurisdiction.
"Unit of Equipment" means, as to the Equipment leased pursuant to any Schedule
(a) each individual item of PC Equipment leased pursuant to such Schedule, and
(b) all Equipment leased pursuant to such Schedule other than PC Equipment taken
as a whole.
"Valid E-mail Acceptance Certificate" has the meaning specified in Section
3(b).
32. Lessee acknowledges that neither this Master Agreement nor any other
Fundamental Agreement may be amended or modified except by a writing signed by
Lessor and Lessee. Lessee Initials: _________________.
IN WITNESS WHEREOF, LESSOR AND LESSEE HAVE EXECUTED THIS MASTER AGREEMENT ON THE
DATES SPECIFIED BELOW.
LESSOR:
COMPAQ FINANCIAL SERVICES CORPORATION
BY:
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-----------------------------------
Name and Title
-----------------------------------
Date
LESSEE:
ALTAVISTA COMPANY
BY:
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Name and Title
-----------------------------------
Date
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