Master Lease Agreement - Silicon Valley Bank and Jutvision Corp.
MASTER LEASE AGREEMENT
This Master Lease Agreement ("Master Agreement"), dated as of March 24,
1999, and referred to as Lease Number 0099002, is entered into by and between
Silicon Valley Bank ("Lessor"), with its principal place of business at 3003
Tasman Drive, NC 400, Santa Clara, CA 95054 and Jutvision Corporation, a
Delaware corporation ("Lessee"), with its principal place of business at 124
University Avenue, Palo Alto, California, 94301.
Definitions. As used herein, all terms shall have the meanings set forth below.
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"ACCEPTANCE CERTIFICATE" means the form of certificate provided by Lessor
to evidence Lessee's acceptance of the Equipment.
"ACCEPTANCE DATE" the date the Lessee signs and delivers to Lessor the
Acceptance Certificate.
"APPLICABLE TERM" the Initial Term and any renewal or extension thereof.
"ASSIGNEE" means any party to whom Lessor assigns Lessor's rights to any
Lease.
"CASUALTY" means any event upon which any Equipment is condemned, taken,
lost, destroyed, stolen or damaged beyond repair.
"CLAIMS" means any and all claims, actions, suits, proceedings, costs,
expenses (including court costs and reasonable attorneys' fees), damages,
obligations, penalties, injuries and liabilities, including actions based on
Lessor's strict liability in tort.
"COMMITMENT AMOUNT" has the meaning set forth in the Schedule.
"CUT-OFF DATE" means the date specified in Section 7 of the Schedule.
"DEFAULT" means any of the events of default described in Section 16 of
this Master Agreement.
"EQUIPMENT" means the items of Equipment leased under each Schedule.
"EQUIPMENT LOCATION" means the location of the Equipment specified in each
Schedule.
"FIRST PAYMENT DATE" has the meaning set forth in the Schedule.
"IMPOSITION" means each license fee, assessment, and sales, use, property,
excise and other tax.
"INTERIM RENT" has the meaning, if any, set forth in Section 5 of the
Schedule.
"INITIAL TERM" means the total monthly, quarterly or other term of each
Lease, as specified in the Schedule.
"LEASE" means each Schedule.
"LICENSE" means collectively, if the Equipment includes any software, a
license identical to that held by Lessee relating to the use of any software,
technical information, confidential business information and other
documentation.
"MATERIAL AGREEMENT" means collectively this Master Agreement, any Lease,
any Transaction Document or any other agreement between Lessee and Lessor, or
any material agreement between Lessee and any third party, specifically
including, without limitation, any agreement or agreements between Lessee and
any third party which in the aggregate give the third party the right, whether
or not exercised, to accelerate any indebtedness exceeding $100,000.
"ORIGINAL" means the single counterpart of the Schedule, including Rider I
attached thereto and incorporated therein by reference, marked "Original".
"PURCHASE DOCUMENTS" means collectively any purchase order, contract or
other documents Lessee has approved or entered into with Supplier.
"RENT" means the amounts payable by Lessee to Lessor for the Equipment.
"RIDER 1" means the rider marked "Rider I" which is attached to and
incorporated within each Schedule.
"SCHEDULE" means each schedule containing the specific terms of each
individual lease.
"STIPULATED LOSS VALUE" means the stipulated loss value of the Equipment as
specified in Rider I to the Schedule.
"SUPPLIER" means the seller of the Equipment.
"TOTAL COST" means the Equipment acquisition cost including such shipping,
delivery, installation and other charges as Lessor shall have approved set forth
in Section 3 of the Schedule, as adjusted pursuant to Section 6 of this Master
Agreement.
"TAX BENEFITS" means collectively certain deductions, credits, and other
tax benefits as are provided in the Internal Revenue Code of 1986, as amended,
including without limitation, accelerated depreciation and interest deductions
to which Lessor may be entitled.
"TRANSACTION DOCUMENTS" means collectively this Master Agreement, all
Leases and all other related instruments or documents executed and/or delivered
hereunder or in connection herewith.
1. LEASE OF EQUIPMENT. This Master Agreement sets forth the general terms
and conditions which apply to the lease of equipment from Lessor to Lessee. The
specific terms of each individual lease are set forth in a separate Schedule,
including the Equipment leased under the applicable Schedule. Each Schedule
constitutes a separate and distinct Lease, enforceable according to its terms.
In the event of any conflict between the terms of this Master Agreement and any
related Schedule, the provisions of the applicable Schedule shall govern. The
parties agree that each Schedule incorporates this Master Agreement by reference
by listing the Lease Number (as specified above) on the Schedule. A Lease shall
not become effective until accepted by Lessor.
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2. TERM. This Master Agreement shall commence upon the execution hereof by
both parties, and shall continue until the full performance of all terms
hereunder. The Initial Term shall be as specified in each Schedule. The
Applicable Term shall be automatically extended for successive one-month periods
unless either party gives the other party ninety days' prior written notice that
it intends to terminate the Lease at the end of the Applicable Term.
3. ACCEPTANCE. The Equipment is unconditionally accepted under the Lease
on the Acceptance Date. Lessee shall accept the Equipment as soon as it is
delivered or, if acceptance requirements are specified in the applicable
Purchase Documents, as soon as such requirements are met. Upon the execution of
the Acceptance Certificate, Lessee shall promptly deliver it to Lessor.
4. RENT; NON-CANCELLABLE NET LEASE. As Rent for the Equipment, Lessee
agrees to pay the amounts specified in the Schedule. Lessee acknowledges and
agrees that all Leases hereunder are non-cancellable net Leases, and Lessee
agrees that its obligation to pay Rent and all other amounts when due is
unconditional. Lessee is not entitled to abate or reduce rent or any other
amounts due, or to set off any charges against those amounts. Lessee is not
entitled to claim or assert any recoupments, cross-claims, counterclaims or any
other defenses to any rent payments or other amounts due hereunder, whether
those defenses arise out of claims by Lessee against Lessor, Supplier, this
Master Agreement, any Schedule or otherwise. If the Equipment is not properly
installed, does not operate as represented or warranted by Supplier or is
unsatisfactory for any reason whatsoever, Lessee shall make any claim or account
thereof solely against Supplier and shall nevertheless pay all sums payable
under any Lease. Lessee hereby waives any such claims against Lessor and any
Assignee.
5. ASSIGNMENT OF PURCHASE DOCUMENTS. Lessee assigns to Lessor all of
Lessee's right, title and interest in and to the Equipment described in the
Purchase Documents and in the Schedule. This assignment is an assignment of
rights only, and Lessee shall remain liable for all obligations under the
Purchase Documents, except that Lessor shall pay for the Equipment within 30
days of the Acceptance Date or as otherwise agreed by Lessor in writing. If
Lessee has not entered into Purchase Documents for such Equipment, Lessee
authorizes Lessor to act as Lessee's agent to execute such Purchase Documents.
Lessee also represents and warrants that it has received and approved a copy of
the Purchase Documents, or has been advised by Lessor of (a) the name of the
Supplier of the Equipment, (b) that Lessee may have under such Supplier's
Purchase Documents, and (c) that Lessee may contact the Supplier for information
on such rights. In addition, Lessee shall deliver to Lessor a document
acceptable to Lessor whereby Supplier acknowledges and provides any consent
required by Lessor or otherwise necessary to such assignment. If the Equipment
includes any software, Supplier shall agree in such acknowledgment and consent
that upon the return of the Equipment to Lessor the Supplier will either grant
Lessor a License and permit Lessor to assign such License to any subsequent end-
user of the Equipment, or grant any such subsequent end-user such a License, but
at no additional charge other than any regularly scheduled fee or charge
otherwise payable by Lessee; provided that Lessee shall at all times remain
liable to Supplier as the licensee under its license, and Lessor shall not have
any obligation thereunder unless and until such license is provided to Lessor in
accordance with these provisions. Lessor shall have no obligation or liability
with respect to Lessee's, or any subsequent third-party licensee's, compliance
under the applicable license. In addition, with respect to any such software,
Supplier shall agree that it will not terminate Lessee's license thereof without
first providing 90 days' prior written notice to Lessor of any intended
termination and providing Lessor the right to cure such breach by Lessee of its
license as gave rise to such notice of intended termination. Supplier shall also
agree to provide all software upgrades and modifications during the Applicable
Term to Lessee, or Lessor or other subsequent licensee, on the same basis as
offered to Supplier's other commercial customers. Lessee agrees that neither
Supplier nor any salesperson or other employee or representative of Supplier is
an agent of Lessor, nor is any such person authorized to waive or alter any
terms of this Master Agreement or any Lease.
6. ADJUSTMENTS. The Total Cost and Rent payment set forth in each Schedule
are estimates, and if the final invoice from the Supplier specifies a Total Cost
(including delivery, installation, taxes and other charges) that is more or less
than such estimated Total Cost, Lessee hereby authorizes Lessor to adjust
accordingly the Total Cost and Rent payment on the applicable Schedule. All
references in this Agreement and in any Schedule to Total Cost and Rent payment
shall mean the estimates thereof specified in the applicable Schedule, as
adjusted pursuant to this Section 6.
7. EQUIPMENT RETURN REQUIREMENTS. On or before the termination of a Lease,
Lessee shall pack the Equipment in accordance with the manufacturer's guidelines
and deliver such Equipment (along with all operating manuals) 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. All Equipment shall be returned to Lessor in
the same condition and working order as when delivered to Lessee, reasonable
wear and tear excepted, and, if applicable, shall be certifiable for maintenance
by the manufacturer at its standard rates.
8. EQUIPMENT USE AND MAINTENANCE. Lessee is solely responsible for the
selection, installation, operation and maintenance of the
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Equipment and all costs related thereto, including shipping charges. Lessee
shall at all times operate and maintain the Equipment in good operating order,
repair, condition and appearance, normal wear and tear excepted, and in
accordance with its manufacturer's specifications and recommendations. On
reasonable prior notice to Lessee, Lessor and Lessor's agents shall have the
right, during Lessee's business hours, to enter the premises where the Equipment
is located for the purpose of inspecting the Equipment and observing its use.
Lessee shall, at its expense, affix and maintain in a prominent position on each
item of Equipment any tags or identifying labels provided by Lessor to indicate
Lessor's ownership of the Equipment. Lessee shall, at its expense, enter into,
maintain and enforce at all times a maintenance agreement to service and
maintain the Equipment, upon terms and with a provider acceptable to Lessor.
9. EQUIPMENT OWNERSHIP; ATTACHMENTS; LOCATION. Lessor is the sole owner of
the Equipment and has sole title thereto. Lessee covenants that it will not
pledge or encumber the Equipment or Lessor's interest in the Equipment in any
manner whatsoever nor permit any liens to be attached thereto (other than liens
arising directly through Lessor). Lessee shall not make any representation to
any third-party inconsistent with Lessor's sole ownership of the Equipment. The
Equipment shall remain Lessor's personal property whether or not affixed to
realty and shall not become or be made to become a part of any real property on
which it is placed without Lessor's prior written consent. All additions,
attachments and accessories placed on the Equipment or repairs made to the
Equipment become a part thereof and Lessor's property. Lessee shall maintain the
Equipment so that it may be removed from any building in which it is placed
without damage thereto. The Equipment will be located at the Equipment Location,
and Lessee shall not move it and shall not permit it to be moved without the
prior written consent of Lessor.
10. INSURANCE. Lessee agrees to keep the Equipment insured at Lessee's
expense against all risks of loss, including theft or damage from any cause
whatsoever. Lessee agrees that such insurance shall name Lessor as a loss payee,
with a full waiver of warranties (Form BFU-438 or comparable) and provide
coverage not less than the greater of the Stipulated Loss Value of the Equipment
and the then-current fair market value of the Equipment. Lessee also agrees that
it shall carry public liability insurance in an amount consistent with prudent
business practices and customary to Lessee's industry. Each policy shall provide
that the insurance cannot be canceled without at least thirty (30) days prior
written notice to Lessor. Upon request by Lessor, Lessee agrees to furnish proof
of insurance coverage, including a certificate of insurance and a copy of the
policy. If Lessee fails to provide Lessor with such evidence, then Lessor will
have the right, but not the obligation, to have such insurance protecting Lessor
placed at Lessee's expense. Lessee's expense shall include a full premium paid
for such insurance and any customary charges, costs or fees of Lessor. Lessee
agrees to pay such amounts in equal installments allocated to each Rent payment
(plus interest on such amounts at the lesser of 1.5% per month or the maximum
rate allowable under applicable law). Lessee hereby appoints Lessor as its
attorney-in-fact to make any claim, receive payment or execute or endorse all
documents, checks or drafts for loss or damage or return of any premium under
such insurance and to apply any such amounts to satisfy Lessee's obligations
under this Master Agreement or any Lease.
11. RISK OF LOSS. In the event of any Casualty, on the next Rent payment
date Lessee shall pay Lessor the Stipulated Loss Value with respect to the item
of Equipment suffering the Casualty. Upon Lessor's full receipt of such
Stipulated Loss Value, the applicable Schedule shall terminate, and except as
provided in Section 22, Lessee shall be relieved of all obligations under the
applicable Schedule, and Lessor shall transfer all its interest in the Equipment
to Lessee "AS IS, WHERE IS," and without any warranty, express or implied from
Lessor, other than the absence of any liens or claims by, through, or under
Lessor. In the event of a partial destruction of or repairable damage to any
Equipment, the Lease shall continue with respect to such Equipment and Lessee
shall at its expense promptly cause such Equipment to be repaired to a condition
acceptable to Lessor. There shall be no abatement of Rent in any such event.
Lessee shall immediately notify Lessor of any Casualty or partial destruction or
damage to any Equipment.
12. TAXES. On behalf of Lessee Lessor shall file and pay all Impositions
now or hereafter imposed or assessed by any foreign, federal, state or local
government upon the purchase, ownership, delivery, installation, leasing,
rental, use or sale of the Equipment, or the Rent or other charges payable
hereunder, whether assessed on Lessor or Lessee. As additional Rent, Lessee
shall reimburse Lessor for all Impositions, together with any penalties or
interest in connection therewith attributable to Lessee's acts or failure to
act, excepting only any Imposition on or measured by the net income of Lessor.
13. INDEMNITY. Lessee shall indemnify, defend and hold harmless Lessor,
its agents and assignees, from and against any and all Claims, arising, directly
or indirectly, out of or connected with any matter involving this Master
Agreement, the Equipment or any Lease, including but not limited to: (a) the
selection, manufacture, purchase, acceptance, rejection, ownership, delivery,
lease, possession, maintenance, use, condition, return or operation of the
Equipment; (b) any breach by Lessee of any representation, warranty or covenant
hereunder or any other Transaction Document; (c) any latent defects or other
defects in any Equipment, whether or not discoverable by Lessor or by Lessee;
(d) any patent, trademark or copyright infringement; and (e) the condition of
any Equipment arising or existing during Lessee's use.
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Notwithstanding the foregoing, Lessee shall have no indemnity obligation
with respect to any Claims which arise solely out of the gross negligence or
willful misconduct of Lessor.
14. DISCLAIMER OF WARRANTIES AND LESSEE WAIVERs. LESSEE LEASES THE
EQUIPMENT FROM LESSOR "AS IS" AND "WHERE IS," LESSEE HEREBY AGREES THAT: EXCEPT
AS TO QUIET ENJOYMENT, LESSOR MAKES ABSOLUTELY NO WARRANTIES, EXPRESS OR IMPLIED
TO LESSEE; LESSOR SHALL NOT BE LIABLE FOR ANY FAILURE OF ANY EQUIPMENT OR ANY
DELAY IN ITS DELIVERY OR INSTALLATION OR ANY BREACH OF ANY WARRANTY THAT SELLER
MAY HAVE MADE; LESSEE HAS SELECTED ALL EQUIPMENT WITHOUT LESSOR'S ASSISTANCE;
LESSOR IS NOT A MANUFACTURER OF ANY OF THE EQUIPMENT; LESSOR SHALL HAVE NO
LIABILITY TO LESSEE, LESSEE'S CUSTOMERS, OR ANY THIRD PARTIES FOR ANY DIRECT,
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR ANY
SCHEDULE OR CONCERNING ANY EQUIPMENT, OR FOR ANY DAMAGES BASED ON STRICT OR
ABSOLUTE TORT LIABILITY OR LESSOR'S NEGLIGENCE; LESSEE'S SOLE RECOURSE FOR ANY
AND ALL CLAIMS AND WARRANTIES RELATING TO THE EQUIPMENT SHALL BE AGAINST SELLER.
Lessor hereby assigns to Lessee for the Applicable Term the right to enforce,
provided that no Default then exists under this Master Agreement or any Lease
and such enforcement is pursued in Lessee's name, any representations,
warranties and agreements made by the Supplier pursuant to the Purchase
Documents, and Lessee may retain any recovery resulting from any such
enforcement efforts. LESSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED
UPON A LESSEE BY ARTICLE 2A (CALIFORNIA COMMERCIAL CODE DIVISION 10) OF THE
UNIFORM COMMERCIAL CODE (INCLUDING LESSEE'S RIGHTS, CLAIMS AND DEFENSES UNDER
UCC ARTICLE 2A SECTIONS 508-522) AND ANY RIGHTS NOW OR HEREAFTER CONFERRED BY
STATUTE OR OTHERWISE THAT MAY LIMIT OR MODIFY LESSOR'S RIGHTS AS DESCRIBED IN
THIS SECTION OR OTHER SECTIONS OF THIS MASTER AGREEMENT.
15. LESSEE WARRANTIES. Lessee represents, warrants and covenants to Lessor
that: (a) all Equipment is leased for business purposes only and not for
personal, family or household purposes; (b) Lessee is duly organized, validly
existing and in good standing under applicable law; (c) Lessee has the power and
authority to enter into the Transaction Documents; (d) the Transaction Documents
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 which could have a material adverse effect on Lessee or
any Transaction Document, 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 Transaction Document; (g) each Transaction Document 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; (h) 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; (i) Lessee shall furnish Lessor with its financial
statements certified by an officer of Lessee on a monthly basis within thirty
(30) days of the end of each month, and audited financial statements on an
annual basis within 120 days of the end of each fiscal year, opinions of
counsel, resolutions, and such other information and documents as Lessor may
reasonably request; (j) all Equipment is tangible personal property and shall
not become a fixture or real property under Lessee's use thereof; and (k) there
has not been a material adverse change in the general affairs, management,
results of operations, condition (financial or otherwise) or prospects of
Lessee, whether or not arising from transactions in the ordinary course of
business. Lessee shall be deemed to have reaffirmed the foregoing warranties
each time it executes any Transaction Document.
16. DEFAULT. Any of the following shall constitute a Default under this
Master Agreement and all Leases: (a) Lessee fails to pay any Rent payment or any
other amount payable to Lessor hereunder when due; or (b) Lessee defaults on or
breaches any of the other terms and conditions of any Material Agreement; or (c)
any representation or warranty made by Lessee in a Material Agreement proves to
be incorrect in any material respect when made or reaffirmed; or (d) Lessee
becomes insolvent or fails generally to pay its debts as they become due; or (e)
the Equipment is levied against, seized or attached and the same is not bonded
against, released or stayed within ten days; or (f) Lessee makes an assignment
for the benefit of creditors, whether voluntary or involuntary; or (g) a
proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency
or receivership law is filed by or against Lessee or Lessee takes any action to
authorize any of the foregoing matters and, if filed against Lessee, is not
dismissed within 30 days; or (h) any letter of credit, guaranty, surety bond or
like instrument issued in support of a Lease is revoked, breached, canceled or
terminated; (i) any guarantor, surety or like third-party obligor under this
Master Agreement fails to fulfill any of the obligations of Lessor which it
agreed to perform; or (j) in the good faith, reasonable commercial judgment of
Lessor, there has occurred or will likely occur a material adverse change in
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the general affairs, management, results of operations, condition (financial or
otherwise) or prospects of Lessee, whether or not arising from transactions in
the ordinary course of business, or in Lessee's or any such third-party
obligor's willingness or ability to perform under any Transaction Document.
17. REMEDIES. If a Default occurs, Lessor may, in its sole discretion,
exercise one or more of the following remedies, without notice of election and
without demand: (a) terminate this Master Agreement or any Lease; without notice
of election and without demand, (b) take possession of, or render unusable, any
Equipment wherever the Equipment may be located, without demand or notice,
without any court order or other process of law and without liability to Lessor
for any damages occasioned by such action, and no such action shall constitute a
termination of any Lease; or (c) require Lessee to deliver the Equipment to a
location specified by Lessor; or (d) declare the Stipulated Loss Value for any
or all Leases to be due and payable as liquidated damages for loss of a bargain
and not as a penalty and in lieu of any further Rent payments under the
applicable Lease or Leases; or (e) proceed by court action to enforce
performance by Lessee of any Lease and/or to recover all damages and expenses
incurred by Lessor by reason of any Default; or (f) terminate any other
agreement that Lessor may have with Lessee; or (g) suspend or terminate funding
of the Commitment Amount or any other amount in connection with the Transaction
Documents; or (h) exercise any other right or remedy available to Lessor at law
or in equity. Any Rent not received on or before the due date shall bear
interest at the lesser of 1.5% per month or the highest interest rate legally
permissible. 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 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 compliance with applicable law and apply
the net proceeds thereof (after deducting all expenses, including reasonable
legal fees and costs, incurred in connection therewith) to the amounts owed to
Lessor hereunder; provided, however, that Lessee shall remain liable to Lessor
for any deficiency that remains after any sale or lease of such Equipment. 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.
18. 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 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 reasonable legal fees and costs) incurred by Lessor in
connection therewith, shall be considered Rent hereunder, will bear interest at
the lesser of 1.5% per month or the highest interest rate legally permissible,
and shall be, without demand, immediately due and payable to Lessor by Lessee.
19. ASSIGNMENT. Lessor may assign, pledge, transfer, mortgage or otherwise
convey any of its interest in this Master Agreement, any Lease, Schedule or
Equipment, in whole or in part, without notice to or the consent of Lessee. If
any Lease is assigned, Lessee shall: (a) unless otherwise specified by Lessor
and Assignee, pay all amounts due under the applicable Lease to such Assignee,
notwithstanding any defense, setoff or counterclaim whatsoever that Lessee may
have against Lessor or Assignee, all of which are hereby waived by Lessee as to
any Assignee; (b) not require the Assignee to perform any obligations of Lessor,
other than those that are expressly assumed in writing by such Assignee; and (c)
execute such acknowledgments thereto as may be requested by Lessor. It is
further agreed that: (x) each Assignee shall be entitled to all of Lessor's
rights, powers and privileges under the applicable Lease, to the extent
assigned; (y) any Assignee may reassign its rights and interests under the
applicable Lease with the same force and effect as the assignment described
herein; and (z) any payments received by the Assignee from Lessee with respect
to the assigned Lease shall, to the extent thereof, discharge the obligations of
Lessee to Lessor with respect to the assigned Lease. Lessee acknowledges that
any assignment or transfer by Lessor or any Assignee will not materially change
Lessee's obligations under the assigned Lease. Without Lessor's prior written
consent, Lessee shall not assign this Master Agreement or any Lease or assign
its rights in or sublet the Equipment or any interest therein.
20. FURTHER ASSURANCES. Lessee shall 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 Lease, including executing and delivering any and all
financing statements which Lessor may request. Upon demand, Lessee will promptly
reimburse Lessor for any filing or recording fees or expenses (including
reasonable legal fees and costs) incurred by Lessor in perfecting or protecting
its interests in the Equipment.
21. SURVIVAL. All representations, warranties and covenants made by Lessee
hereunder shall survive the termination of this Agreement and shall remain in
full force and effect. All of Lessor's rights, privileges and indemnities, to
the extent they are fairly attributable to events or conditions occurring or
existing on or prior to the termination of this Agreement, shall survive such
termination and be enforceable by Lessor and Lessor's successors and assigns.
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22. 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 LEASE OR ANY LEASE OR
SCHEDULE.
23. CAPTIONS; COUNTERPARTS; LESSOR'S AFFILIATES. The captions contained in
this Agreement are for convenience only and shall not affect the interpretation
of this Master Agreement. Only the Original shall be marked "Original", and all
other counterparts of the Schedule shall be marked as, and shall be, duplicates.
To the extent that any Schedule constitutes chattel paper (as such term is
defined in the Uniform Commercial Code in effect in the applicable
jurisdiction), no security interest in such Schedule may be created through the
transfer or possession of any counterpart other than the Original.
24. MISCELLANEOUS. This Master Agreement and each Lease hereunder shall be
governed by the internal laws (as opposed to conflicts of law provisions) of the
state of California. If any provision of this Master Agreement or any Schedule
shall be prohibited by or invalid under any 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 any Lease. Lessor and Lessee consent to the jurisdiction of
any local, state or federal court located within the County of Santa Clara,
State of California, and waive any objection relating to improper venue or forum
non conveniens to the conduct of any proceeding in any such court. This
Agreement and the other Transaction Documents constitute the entire agreement
between Lessor and Lessee relating to the leasing of the Equipment, 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.
Any failure of Lessor to require strict performance by Lessee, or any written
waiver by Lessor of any provision hereof, shall not constitute consent or waiver
of any other breach of the same or any other provision hereof.
IN WITNESS WHEREOF, LESSOR AND LESSEE HAVE EXECUTED THIS MASTER AGREEMENT AS OF
THE DATE SPECIFIED.
LESSEE LESSOR
JUTVISION CORPORATION SILICON VALLEY BANK
By: /s/ R. BRIAN GIBSON By: /s/ PHILIP A. JOHNSON
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R. BRIAN GIBSON - CONTROLLER PHILIP A. JOHNSON S.V.P.
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Name and Title Name and Title
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SCHEDULE TO MASTER LEASE AGREEMENT
SCHEDULE NUMBER 001
Silicon Valley Bank ("Lessor") and Jutvision Corporation ("Lessee") are
entering into this Schedule Number 001 as of March 24, 1999, in reference and as
parties to that certain Master Lease Agreement, Lease Number 0099002 (the
"Master Agreement"). This Schedule and the Master Agreement together comprise a
separate Lease between the parties. The terms and conditions of the Master
Agreement are hereby incorporated by reference into this Schedule. All
initially-capitalized terms not defined in this Schedule shall have the meanings
assigned to them in the Master Agreement. In the event of any conflict between
the terms of the Master Agreement and this Schedule, the provisions of this
Schedule shall govern.
1. Lease of Equipment. Lessor agrees to lease to Lessee and Lessee agrees
to lease from Lessor the Equipment set forth in this Schedule. This Lease will
be governed by the Master Agreement and this Schedule.
2. Equipment Description. Software acceptable to Lessor, as more
particularly described in Equipment Annex A, and equipment, furniture, fixtures
and soft costs (such soft costs not to exceed 10% of the Commitment Amount)
acceptable to Lessor, including, without limitation, leasehold improvements, as
more particularly described in Equipment Annex B.
3. Commitment Amount. $204.947.00.
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4. Initial Term. The Initial Term shall commence on the first payment date
("First Payment Date") which shall be the earlier of (i) the first day of a
calendar month following the month in which the Lessee has fully utilized the
Commitment Amount, provided that if Lessee delivers an Acceptance certificate on
the first day of a calendar month and such Acceptance Certificate results in
full utilization of the Commitment Amount, that date shall be deemed such first
day of a calendar month or (ii) in any event no later than the Cut-off Date. The
Initial Term for software leased under this Schedule shall be ________months
and the Initial Term for all other Equipment leased under this Schedule shall be
36 months.
5. Interim Rent. Lessee shall pay to Lessor on the first day of each
calendar month, in arrears, Interim Rent payments for each day during the period
from and including the acceptance Date through and including the last day of the
calendar month prior to the First Payment date. For purposes of this Schedule,
"Interim Rent" shall be an amount accruing on a daily basis equal to .0333% of
the amount drawn under this Schedule (as set forth in the applicable Equipment
Annex B).
6. Rent Payments. Lessee shall pay Lessor, in advance, on the first day of
each month the Rent payment for the Initial Term. The first monthly Rent payment
shall be due on the First Payment Date. For purposes of this Schedule, (i) the
applicable monthly Rent payment for software financed under this Schedule shall
be _____% of the aggregate cost of such software leased under Equipment Annex A
and (ii) the applicable monthly Rent payment for all other Equipment leased
under this Schedule shall be 3.089% of the aggregate cost of such Equipment
-----
financed under Equipment Annex B. Lessor's obligation to purchase and lease the
Equipment is subject to the Acceptance Date being on or before the Cut-Off Date
set forth in this Schedule.
7. Cut-off Date. April 30, 1999.
--------------
8. End of Term Payment. See Rider 1 for provisions regarding payment at
the end of the term of this Lease.
9. Purchase, Renewal and Return (if applicable). See Rider 1 for
provisions regarding purchase, renewal and return (if applicable) of the
Equipment.
10. Stipulated Loss Value. See Rider 1 for provisions regarding the
Stipulated Loss Value of the Equipment.
11. Counterparts; One Original; Chattel Paper Security Interest. Only the
Original, including Rider 1 attached hereto and incorporated herein by
reference, shall be marked "Original", and all other counterparts hereof shall
be marked as, and shall be, duplicates. To the extent that this Schedule
constitutes chattel paper (as such term is defined in the Uniform Commercial
Code in effect in the applicable jurisdiction), no security interest in this
Schedule may be created through the transfer or possession of any counterpart
other than the Original.
IN WITNESS WHEREOF, LESSOR AND LESSEE HAVE EXECUTED THIS SCHEDULE AS OF THE
DATE SPECIFIED.
LESSEE LESSOR
SILICON VALLEY BANK
JUTVISION CORPORATION
By: /s/ R. BRIAN GIBSON By: /s/ PHILIP A. JOHNSON
-------------------------------- -------------------------------
R. BRIAN GIBSON - CONTROLLER PHILIP A. JOHNSON S.V.P.
----------------------------------- ----------------------------------
Name and Title Name and Title
<PAGE>
EQUIPMENT ANNEX A
(Software)
This Equipment Annex A to Schedule Number 001 (the "Schedule") to the
Master Lease Agreement between Silicon Valley Bank ("Lessor") and Jutvision
Corporation ("Lessee") is attached to and made part of the Schedule.
1. Total Cost. The software Equipment acquisition cost including such
shipping, delivery, installation and other charges as Lessor shall have
approved: $__________.
2. Description of Equipment.
NOT APPLICABLE
INITIALS:
Lessee Lessor
JUTVISION CORPORATION ______________ SILICON VALLEY BANK _____________
<PAGE>
EQUIPMENT ANNEX B
(Hardware)
This Equipment Annex B to Schedule Number 001 (the "Schedule") to the
Master Lease Agreement between Silicon Valley Bank ("Lessor") and Jutvision
Corporation ("Lessee") is attached to and made part of the Schedule.
1. Total Cost. The Equipment (excluding software) acquisition cost
including such shipping, delivery, installation and other charges as Lessor
shall have approved: $204,947.00.
2. Description of Equipment.
Various computers and JSP service provider Field Kits (Please see attached
spreadsheet for definitive listing of equipment)
4 Dell PowerEdge Servers
4 Dell 6450 Workstation
2 Dell Dimension, V350, Pentium II Processor at 350 MHz Minitowers
5 Dell lnspiron AS333GT, Pentium II, 14.1" AGP Active Matrix, Notebooks
1 Best Internet Router
1 CCS Presentation Projector System, Proxima UltraLight
1 Netscreen Firewall
1 Infocos 425 (SVGA 800x600)
3 Sony Hi Fi Projector System
1 Dell PC Minitower, Dimension XPS R450 Mzh
1 Dell Trinitron
5 IBM ThinkPads 770
6 Dell lnspiron 7000
3 Dell Dimension V350 Desk Top, Pentium II Processor at 350 MHz Minitowers
1 HP Dexkject 895C
1 Dell M780 Monitor & 1 Dell Dimension V350 Desk Top
1 Iomega Zip Drive
1 3001 Tripod with 3030 Head (Kit)
400 Sony 8 Millimeter Tapes (Kit)
100 Sony chargers (Kit)
INITIALS:
Lessee Lessor
JUTVISION CORPORATION SILICON VALLEY BANK
--------------------------- -------------------
<PAGE>
RIDER 1
to
SCHEDULE NUMBER 001
TO MASTER LEASE AGREEMENT
This Rider 1 to Schedule Number 001 (the "Schedule") to the Master Lease
Agreement between Silicon Valley Bank ("Lessor") and Jutvision Corporation
("Lessee") is attached to and made part of the Schedule.
A. End of Term Payment. At the end of the term of this Lease, Lessee shall
exercise (i) a fixed price purchase option of either $________ or 10% of the
Total Cost (the "Fixed Purchase Price"); or (ii) a fixed price renewal option of
________% of the monthly Rent payment (the "Fixed Renewal Price"). Lessee hereby
authorizes Lessor to adjust the Fixed Purchase Price and Fixed Renewal Price to
reflect the Total Cost.
B. Purchase and Renewal. The following provisions shall govern the
purchase of the Equipment and the renewal of the Lease: (a) if Lessee elects to
purchase the Equipment or renew the Lease, in any such case, in any such case
Lessee shall advise Lessor thereof in writing at least 90 days prior to the
expiration of the then Applicable Term; (b) if Lessee elects to purchase the
Equipment, it may do so by purchasing all (but not less than all) of the
Equipment at the end of the then Applicable Term at the Fixed Purchase Price; or
(c) if Lessee elects to renew this Lease it may do so with respect to all (but
not less than all) of the Equipment by entering into a mutually agreeable
renewal agreement with Lessor at least 30 days prior to the expiration of the
then Applicable Term, confirming the length of the renewal term and the Rent for
such period in an amount equal to the Fixed Renewal Price; (d) in the event that
Lessee fails to fulfill the foregoing provisions of this Section B for either a
purchase, renewal, as the case may be, the Lease will be automatically extended
for successive 30 day periods until Lessee complies with the applicable purchase
or renewal provisions; (e) if this Lease is extended (as opposed to renewed)
pursuant to any of the provisions hereof, Lessee shall continue to pay Lessor
the monthly Rent payments in effect prior to the expiration of the Applicable
Term and all other provisions of the Master Agreement and this Schedule
(including Lessee's purchase and renewal options) shall remain in full force and
effect; (f) if Lessee elects to purchase the Equipment and has fulfilled the
terms and conditions of the Master Agreement and this Section B, then on the
last day of the Applicable Term: (A) this Schedule shall terminate and, except
as provided in Section 21 of the Master Agreement, Lessee shall be relieved of
all obligations under this Schedule; and (B) Lessor shall transfer all of its
interest in the Equipment to Lessee "AS IS, WHERE IS," and without any warranty,
express or implied from Lessor, other than the absence of any liens or claims
by, through, or under Lessor; and (h) notwithstanding any of the foregoing
provisions to the contrary, if Lessee is in Default of the Lease, Lessor may
cancel any extension or renewal of any term upon ten (10) days prior written
notice to Lessee.
C. Stipulated Loss Value. The parties agree that the stipulated loss value
of the Equipment ("Stipulated Loss Value") shall equal the sum of (i) all Rent
and other amounts then due and owing under the Lease; plus (ii) an amount
calculated by Lessor that is the present value (discounted at 5% per annum
compounded monthly) of all Rent payments from the date of the Casualty or
Default in question to the scheduled date of expiration of the Initial Term and
any renewal or extension term; plus (iii) the present value (computed as
described above and calculated by Lessor as of the date of the Casualty or
Default in question) of the Fixed Purchase Price. The applicable percentage
shall be 30% of the Total Cost for any Lease of an Initial Term of less than 36
months; 25% of the Total Cost for a term of 36 months or more, but less than 48
months; 20% of the Total Cost for a term of 48 months or more, but less than 60
months; 15% of the Total Cost for a term of 60 months or more, but less than 72
months, and 10% of the Total Cost for a term of 72 months or more.
INITIALS:
Lessee Lessor
JUTVISION ???? SILICON VALLEY BANK ????
---------------- -----------------
<PAGE>
RIDER 2 TO SCHEDULE TO
MASTER LEASE AGREEMENT
(Sale & Leaseback)
Silicon Valley Bank ("Lessor") and Jutvision Corporation ("Lessee") are
entering into this Rider to Master Lease Agreement Schedule as of March 24, 1999
in reference and as parties to that certain Master Lease Agreement, Lease Number
0099002 (the "Master Agreement") and Schedule Number 001 thereto (the
"Schedule"). This Rider, together with the Schedule and the Master Agreement
together comprise the Lease referenced and defined in the Master Agreement. All
initially-capitalized terms not defined in this Rider shall have the meanings
assigned to them in the Master Agreement.
1. Sale and Leaseback. Notwithstanding any of the terms and conditions of
the Master Agreement and the Schedule to the contrary with respect to the prior
ownership or use by Lessee of any Equipment subject thereto, Lessor and Lessee
agree to enter into a sale and leaseback of the Equipment identified in the
Schedule (the "Equipment") as provided in this Rider.
2. Sale of Equipment. Lessee hereby sells, transfers and conveys to
Lessor all of its right, title and interest in and to the Equipment for good and
valuable consideration as set forth on Schedule 2 hereto. Lessee agrees to
----------
execute, deliver and/or file any and all such bills of sale, notices of sale,
property tax returns, or other documents or instruments as Lessor may require or
as otherwise required under applicable law in connection with the sale and
leaseback transaction contemplated by this Rider.
3. Lessee Representations, Warranties and Covenants. Lessee represents
and warrants that the Equipment is free and clear of all claims, liens, security
interests or other encumbrances or interests of any party. Lessee shall cause to
be executed and delivered any and all such lien terminations, lien releases,
reconveyances and like instruments and agreements from any party which has filed
or recorded any instrument or filing which could give such party a claim against
any of the Equipment or from any other party as Lessor may require. Lessee
further agrees that it shall be solely responsible for, and shall make all
payment of, any sales, use, property or other tax liability ("Taxes") arising
for the account of Lessor or Lessee in connection with the sale and lease back
transaction contemplated by this Rider.
4. Indemnity. In addition to and as a part of the indemnification
obligations of Lessee pursuant to Section 13 of the Master Agreement, Lessee
shall indemnify, defend and hold harmless Lessor, its agents and assignees, from
and against any and all Claims arising in connection with the sale and leaseback
of the Equipment, including, without limitation: (a) any Claims under any
fraudulent conveyance, vendor-in-possession or like statutes or common law
fraud; (b) any Claims for Taxes; (c) and any Claims arising from the assertion
by any party of a lien, security interest or other interest in any of the
Equipment.
IN WITNESS WHEREOF, LESSOR AND LESSEE HAVE EXECUTED THIS RIDER AS OF THE DATE
SPECIFIED.
LESSEE LESSOR
JUTVISION CORPORATION SILICON VALLEY BANK
By: /s/ R. BRIAN GIBSON By: /s/ PHILIP A. JOHNSON
-------------------------------- -------------------------------
R. BRIAN GIBSON - CONTROLLER PHILIP A. JOHNSON S.V.P.
----------------------------------- ----------------------------------
Name and Title Name and Title
<PAGE>
SCHEDULE 2
----------
Sale and Leaseback Consideration
Description of consideration paid by Lessor to Lessee:
Various computers and JSP service provider Field Kits (Please see attached
spreadsheet for definitive listing of equipment)
4 Dell PowerEdge Servers
4 Dell 6450 Workstation
2 Dell Dimension, V350, Pentium II Processor at 350 MHz Minitowers
5 Dell Inspiron AS333GT, Pentium 11, 14.1" AGP Active Matrix, Notebooks
1 Best Internet Router
1 CCS Presentation Projector System, Proxima UltraLight
1 Netscreen Firewall
1 Infocos 425 (SVGA 800x600)
3 Sony Hi Fi Projector System
1 Dell PC Minitower, Dimension XPS R450 Mzh
1 Dell Trinitron
5 IBM ThinkPads 770
6 Dell Inspiron 7000
3 Dell Dimension V350 Desk Top, Pentium II Processor at 350 MHz Minitowers
1 HP Dexkject 895C
1 Dell M780 Monitor & I Dell Dimension V350 Desk Top
1 Iomega Zip Drive
1 3001 Tripod with 3030 Head (Kit)
400 Sony 8 Millimeter Tapes (Kit)
100 Sony chargers (Kit)
<PAGE>
ACCEPTANCE CERTIFICATE
Silicon Valley Bank ("Lessor") and Jutvision Corporation ("Lessee") are
parties to a Master Lease Agreement, Lease Number 0099002 (the "Master
Agreement") and Schedule Number 001 (the "Schedule") under such Master
Agreement. The foregoing Master Agreement and Schedule together comprise a
separate Lease that is being accepted and commenced pursuant to this Acceptance
Certificate. All initially-capitalized terms not defined in this Acceptance
Certificate shall have the meanings ascribed to them in the Master Agreement.
1. Lease and Equipment Acceptance. Lessee hereby acknowledges that the
Equipment described in the Schedule, which description is fully incorporated
herein, has been delivered to the Equipment Location specified below, installed
and otherwise serviced and completed to Lessee's satisfaction, inspected by
Lessee, found to be in good operating order and condition and in compliance with
all specifications of Lessee, and has been unconditionally accepted by Lessee
under the Master Agreement and the Schedule, as of the Acceptance Date set forth
below. Lessee hereby agrees to perform all of its obligations under the Master
Agreement and the Schedule and reaffirms, as of the date hereof, its
representations and warranties as set forth in the Master Agreement. Lessee
further reaffirms that Lessee has reviewed and approved the Purchase Documents
with each Supplier covering the Equipment to be purchased by Lessor for lease to
Lessee hereunder, or that Lessee knows the identity of each Supplier, that it
may have rights under any supply contract from the Supplier, and that Lessee may
contact Supplier for a description of any such rights. Lessee hereby authorizes
and directs Lessor to make payments to each Supplier of the Equipment pursuant
to such Supplier's invoice or any purchase order or agreement with such
Supplier.
2. Equipment Location. The Equipment has been installed and is located at
the following Equipment Location:
Jutvision Corporation
124 University Avenue
Palo Alto, California, 94301
3. Acceptance Date. Dated of Acceptance: March 24, 1999.
LESSEE
JUTVISION CORPORATION
By: /s/ Brian Gibson
----------------------------------
Brian Gibson, Controller
------------------------------------
Name and Title
<PAGE>
REQUEST FOR FUNDING
(Deadline for Same Day Processing is 3:00 p.m. California Time)
To: Strategic Capital Services Date: 3/24/99
Fax: _____________ Time: _______________
From: Jutvision Corporation
Lessee's Name
From: /s/ Brian Gibson
----------------------------------
Authorized Signature
Brian Gibson
Authorized Signer's Name (please print)
Phone: 650-325-6787 x-107
In connection with Schedule 001, Lessee hereby requests funding in the amount of
$204,947.00 in accordance with the attached invoices to be made part of the
applicable Equipment Annex(es).
All representations and warranties of Lessee stated in the Transaction Documents
are true, correct and complete in all material respects as of the date of this
Request for Funding; provided, however, that those representations and
warranties expressly referring to another date shall be true, correct and
complete in all material respects as of such date.