Master Lease and Financing Agreement - Compaq Financial Services Corp. and LivePerson Inc.
(PART 1)
MASTER LEASE AND FINANCING AGREEMENT
This Master Lease and Financing Agreement (together with Exhibits A through F
attached hereto and hereby made a part hereof, this "Master Agreement"), dated
as of August 28, 2000 is entered into by and between Compaq Financial Services
Corporation, a Delaware corporation ("Lessor"), and LivePerson, Inc. 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
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 agreed to 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
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
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 5%, 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 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
AGREEMENT. Lessor and Lessee mutually agree to enter into one or more Leases,
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
agreed to 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
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
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 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
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
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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
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
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
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
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. Upon request, 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,
Lessor shall, at Lessee's expense, select an independent appraiser to
conclusively determine such amount.
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 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 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
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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 1-1/2% 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 30 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, 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. In the case of any item of
Software to be returned to Lessor, Lessee shall also deliver to Lessor the
original Certificate of Authenticity issued by the licensor of such Software, if
any. Alternatively, Lessee may deliver any such Certificate of Authenticity to
Lessor on or at any time after the Acceptance Date for such Software. 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 shall qualify 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 promptly on demand
for, any cost incurred by Lessor to qualify the Equipment for the Supplier's
maintenance service or, if not available, 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 reasonable prior notice to Lessee, 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
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specified in the applicable Schedule to another of its business locations within
the United States upon prior written notice to Lessor specifying the new
Equipment Location, provided Lessee remains in possession and control of the
Equipment.
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 1-1/2% 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 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.
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 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
<PAGE>
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 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 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 15 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 withheld or delayed if Lessor determines that
the criteria upon which the Lessor had originally approved Lessee for leasing
would not be adversely changed as a result of the proposed merger or sale of
substantially all of its assets); 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 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,
provided, however, that the intent of the cumulative remedy hereunder is to make
Lessor whole, as if no Lessee Default had occurred, and not to penalize Lessee
with duplicative or multiple remedies.
If a Lessor Default occurs, Lessee's sole and exclusive remedy shall be 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.
<PAGE>
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 provided, however that Lessor will retain all such
obligations not expressly assumed in writing by Assignee and shall use its
reasonable best efforts to service and administer the Schedule so as to preserve
the rights of Lessee under Section 18; 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. Lessee may not assign, transfer or otherwise dispose of this Master
Agreement, any Lease or Financing, any Equipment or any interest therein except
to the extent as provided for in Section 21(d) of this Master Agreement.
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 and Lessor of all of
their obligations hereunder with respect thereto. All representations,
warranties and covenants made by Lessee and Lessor 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
420 Mountain Avenue
P.O. Box 6
Murray Hill, New Jersey 07974-0006
Attn: Director of Operations, North America
Fax: (908) 898-4109
Authorized Lessor E-mail Address: electronicacceptance@compaq.com
<PAGE>
IF TO LESSEE:
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Attn:
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Fax:
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Authorized Lessee Representatives and Authorized Lessee E-mail Addresses:
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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 JERSEY.
(B) CONSENT TO JURISDICTION. Lessor and Lessee consent to the jurisdiction of
any local, state or Federal court located within the State of New Jersey, 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 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.
(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.
(J) LESSOR RELIANCE. Lessor may act in reliance upon any instruction, instrument
or signature reasonably believed by Lessor in good faith to be genuine. Lessor
may assume that any employee of Lessee who executes any document or gives any
written notice, request or instruction has the authority to do so.
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 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.
<PAGE>
"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.
"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.
"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).
<PAGE>
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: TEB.
IN WITNESS WHEREOF, LESSOR AND LESSEE HAVE EXECUTED THIS MASTER AGREEMENT ON THE
DATES SPECIFIED BELOW.
LESSOR:
COMPAQ FINANCIAL SERVICES CORPORATION
BY: /S/ LEE D. EBERDING
---------------------------------------
Lee D. Eberding, Director, Operations
------------------------------------------
NAME AND TITLE
10/2/00
------------------------------------------
DATE
LESSEE: LIVEPERSON, INC.
------------------------------------------
BY: /S/ TIMOTHY E. BIXBY
--------------------------------------
Timothy E. Bixby, EVP/CFO
------------------------------------------
NAME AND TITLE
9/27/00
------------------------------------------
DATE
<PAGE>
EXHIBIT A TO MASTER AGREEMENT
COUNTERPART NO. _______ OF _______. TO THE EXTENT THAT THIS SCHEDULE
CONSTITUTES CHATTEL PAPER (AS DEFINED ON THE UCC), NO SECURITY INTEREST IN
THIS SCHEDULE MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY
COUNTERPART OTHER THAN COUNTERPART NO. 1.
Master Agreement Number _____
Schedule Number _____
MASTER LEASE AND FINANCING AGREEMENT
SCHEDULE
Compaq Financial Services Corporation ("Lessor") and________________
("Lessee") are parties to the Master Lease and Financing Agreement identified by
the Master Agreement Number specified above (the "Master Agreement"). This
Schedule (which shall be identified by the Schedule Number specified above) and
the Master Agreement together comprise a separate Lease, a separate Financing or
a separate Lease and a separate Financing, as the case may be, between the
parties. The terms and conditions of the Master Agreement are hereby
incorporated by reference into this Schedule. All capitalized terms used in this
Schedule without definition have the meanings ascribed to them in the Master
Agreement.
1. LEASE.
A. DESCRIPTION OF ITEMS OF LEASED EQUIPMENT TOTAL COST
B. INITIAL TERM: ____ Months (plus the number of days from and including
the Acceptance Date through and including the last day of the calendar
month or quarter (depending on whether Rent is payable monthly or
quarterly as specified in Section 3 below) in which the Acceptance Date
occurs).
2. FINANCING.
A. DESCRIPTION OF FINANCED ITEMS TOTAL COST
B. TERM: ____ Months (plus the number of days from and including the
Acceptance Date through and including the last day of the calendar
month or quarter (depending on whether Rent is payable monthly or
quarterly as specified on Section 3 below) in which the Acceptance Date
occurs).
3. RENT:
For Lease: ____________________
For Financing: ________________
Total Rent: ___________________
RENT IS PAYABLE: ___in advance ___in arrears (check one)
___monthly ___quarterly (check one)
Lessee shall pay Lessor (a) on the first day of each calendar month or
calendar quarter (depending on whether Rent is payable monthly or quarterly
as specified above) if Rent is payable in advance, or (b) on the last day of
each calendar month or calendar quarter (depending on whether Rent is
payable monthly or quarterly as specified above) if Rent is payable in
arrears, the Rent payment specified above for the length of the Initial Term
in the case of a Lease and for the length of the Term in the case of a
Financing. The First Payment Date shall be the first day (if Rent is payable
in advance) or the last day (if Rent is payable in arrears) of the month or
quarter (as applicable) immediately following the month or quarter (as
applicable) in which the Acceptance Date occurs. However, if Rent is payable
in advance and if the Acceptance Date falls on the first day of a month or
quarter (as applicable), that date shall be the First Payment Date. In
addition, on the First Payment Date Lessee shall also pay Lessor (a) in the
case of Leases an amount equal to the Daily Rent multiplied by (i) 15 days
if Rent is payable monthly or (ii) 45 days if Rent is payable quarterly; or
(b) in the case of Financings an amount equal to the Daily Rent multiplied
by the number of days from and including the Funding Date up to but
excluding the first day of the month or quarter (as applicable) in which the
First Payment Date occurs.
4. ADVANCE RENT: _______________________
5. PRICING EXPIRATION DATE: ____________. Lessor's obligation to purchase
and lease the Equipment or fund and finance the Financed Items is subject
to the Acceptance Date being on or before the Pricing Expiration Date.
6. EQUIPMENT LOCATION:________________________________________________________.
7. SELLER:____________________________________________________________________.
8. ADDITIONAL PROVISIONS:_____________________________________________________
---------------------------------------------------------------------------.
LESSOR AGREES TO LEASE TO LESSEE AND LESSEE AGREES TO LEASE FROM LESSOR THE
EQUIPMENT DESCRIBED IN SECTION 1.A ABOVE, IF ANY, AND LESSOR AND LESSEE AGREE TO
ENTER INTO A FINANCING OF THE FINANCED ITEMS DESCRIBED IN SECTION 2.A ABOVE, IF
ANY. SUCH LEASE AND/OR FINANCING WILL BE GOVERNED BY THE MASTER AGREEMENT AND
THIS SCHEDULE, INCLUDING THE IMPORTANT ADDITIONAL TERMS AND CONDITIONS SET FORTH
ABOVE. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS SCHEDULE AND THE
MASTER AGREEMENT, THE TERMS OF THIS SCHEDULE SHALL GOVERN.
LESSEE: LESSOR:
_________________________________ COMPAQ FINANCIAL SERVICES CORPORATION
BY:______________________________ BY: _________________________________
_________________________________ _____________________________________
NAME AND TITLE NAME AND TITLE
_________________________________ _____________________________________
DATE DATE
<PAGE>
EXHIBIT B TO MASTER AGREEMENT
Master Agreement Number ________
APA Number ________
ADVANCE PRICING AGREEMENT
______Compaq Financial Services Corporation ("Lessor") and________________
("Lessee") are parties to the Master Lease and Financing Agreement identified by
the Master Agreement Number specified above (the "Master Agreement"). This
Advance Pricing Agreement (which shall be identified by the APA Number specified
above) is being entered into by Lessor and Lessee for the purpose specified in
Section 2.B of the Master Agreement and supersedes any Advancing Pricing
Agreement previously entered into by Lessor and Lessee pursuant thereto with
respect to Leases and Financings commencing during the Commitment Period
specified in Section 1 below. The terms and conditions of the Master Agreement
are hereby incorporated by reference into this Advance Pricing Agreement. All
capitalized terms used in this Advance Pricing Agreement without definition have
the meanings ascribed to them in the Master Agreement.
1. COMMITMENT PERIOD. Lessee may enter into Leases and Financings with Lessor
pursuant to either Section 2.A of the Master Agreement or Section 2.B of the
Master Agreement and this Advance Pricing Agreement during the period beginning
on ___________________ and ending on __________________ (the "Commitment
Period").
2. AMOUNT AVAILABLE. The aggregate Total Cost of Equipment to be subject to such
Leases and Financed Items to be subject to such Financings shall not exceed $
_____________ ("Amount Available") without Lessor's consent, which consent shall
be evidenced either by a writing executed by Lessor or by Lessor's funding
during the Commitment Period of Leases, Financings, or both in an aggregate
amount exceeding such Amount Available.
3. CONSOLIDATION PERIOD. All Leases and Financings commencing during each
[calendar month] [calendar quarter] or portion thereof ending during the
Commitment Period (a "Consolidation Period") shall be consolidated into a single
Consolidating Schedule in accordance with Section 2.B (d) of the Master
Agreement.
4. LEASES. Set forth below is a description of the type(s) of Equipment that may
be leased pursuant to this Advance Pricing Agreement, the times at which Rent is
payable and the length of the Initial Term of each Lease that is commenced
pursuant hereto, and the Lease rate factor to be multiplied by the Total Cost of
the Equipment subject to each such Lease to determine the periodic Rent payable
with respect thereto:
A. EQUIPMENT TYPE I:
(i) Description of Equipment:________________________________________
(ii) Rent is payable: ____ in advance ____ in arrears (check one)
____ monthly ____ quarterly (check one)
(iii) Initial Term: _____ Months (plus the number of days from and
including the Acceptance Date through and including the last day
of the Consolidation Period in which the Acceptance Date occurs).
(iv) Lease rate factor:_______________________________________________
[Add additional sequentially lettered paragraphs in the event of additional
Equipment types]
With respect to each Lease that is commenced pursuant to this Advance
Pricing Agreement, Lessee shall pay Lessor (a) on the first day of each
calendar month or calendar quarter (depending on whether Rent is payable
monthly or quarterly) if Rent is payable in advance, or (b) on the last day
of each calendar month or quarter (depending on whether Rent is payable
monthly or quarterly) if Rent is payable in arrears, the Rent payment
calculated as set forth above in this Section 4 for the length of the
Initial Term of such Lease. The First Payment Date shall be the first day
(if Rent is payable in advance) or the last day (if Rent is payable in
arrears) of the month or quarter (as applicable) immediately following the
end of the Consolidation Period in which the Acceptance Date occurs. In
addition, on the First Payment Date Lessee shall also pay Lessor with
respect to each such Lease an amount equal to the Daily Rent multiplied by
either (i) 15 days if the Consolidation Period is monthly or (ii) 45 days if
the Consolidation Period is quarterly.
5. FINANCINGS. Set forth below is a description of the types of Financed Items
that may be financed pursuant to this Advance Pricing Agreement, the times at
which Rent is payable and the length of the Term of each Financing that is
commenced pursuant hereto, and the Financing rate factor to be multiplied by the
Total Cost of the Financed Items subject to each such Financing to determine the
periodic Rent payable with respect thereto:
A. FINANCED ITEM TYPE I:
(i) Description of Financed Item:____________________________________
(ii) Rent is payable: _____ in advance _____ in arrears (check one)
_____ monthly _____ quarterly (check one)
(iii) Term: _____ Months (plus the number of days from and including
the Acceptance Date through and including the last day of the
Consolidation Period in which the Acceptance Date occurs).
(iv) Financing rate factor:___________________________________________
[Add additional sequentially letter paragraphs in the event of additional
types of Financed Items]
With respect to each Financing commenced pursuant to this Advance Pricing
Agreement, Lessee shall pay Lessor (a) on the first day of each calendar
month or calendar quarter (depending on whether Rent is payable monthly or
quarterly) if Rent is payable in advance, or (b) on the last day of each
calendar month or quarter (depending on whether Rent is payable monthly or
quarterly) if Rent is payable in arrears, the Rent payment calculated as set
forth above in this Section 5 for the length of the Term of such Financing.
The First Payment Date shall be the first day (if Rent is payable in
advance) or the last day (if Rent is payable in arrears) of the month or
quarter (as applicable) immediately following the end of the Consolidation
Period in which the Acceptance Date occurs. In addition, on the First
Payment Date Lessee shall also pay Lessor with respect to each such Lease an
amount equal to the Daily Rent multiplied by the number of days from and
including the Acceptance Date up to but excluding the first day of the month
or quarter (as applicable) in which the First Payment Date occurs.
6. ADDITIONAL PROVISIONS:_____________________________________________________.
IN WITNESS WHEREOF, LESSOR AND LESSEE HAVE EXECUTED THIS ADVANCE PRICING
AGREEMENT ON THE DATES SPECIFED BELOW.
LESSEE: LESSOR:
_________________________________ COMPAQ FINANCIAL SERVICES CORPORATION
BY:______________________________ BY: _________________________________
_________________________________ _____________________________________
NAME AND TITLE NAME AND TITLE
_________________________________ _____________________________________
DATE DATE
<PAGE>
EXHIBIT C TO MASTER AGREEMENT
COUNTERPART NO. _______ OF _______. TO THE EXTENT THAT THIS SCHEDULE
CONSTITUTES CHATTEL PAPER (AS DEFINED ON THE UCC), NO SECURITY INTEREST IN
THIS SCHEDULE MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY
COUNTERPART OTHER THAN COUNTERPART NO. 1.
Master Agreement Number _____
APA Number _____
Schedule Number _____
MASTER LEASE AND FINANCING AGREEMENT
CONSOLIDATING SCHEDULE
Compaq Financial Services Corporation ("Lessor") and________________
("Lessee") are parties to the Master Lease and Financing Agreement (the "Master
Agreement") and the Advance Pricing Agreement (the "Advance Pricing Agreement")
identified by the Master Agreement Number and the APA Number, respectively,
specified above. Pursuant thereto, Lessor and Lessee have entered into one or
more Leases (the "Existing Leases"), one or more Financings (the "Existing
Financings") or one more Existing Leases and one more Existing Financings, all
of which are more particularly described in Section 1 below, during the
Consolidation Period ending on __________ (the "Consolidation Date"). Pursuant
to Section 2.B(d) of the Master Agreement, Lessor and Lessee are entering into
this Consolidating Schedule, which shall be identified by the Schedule Number
specified above (this "Schedule"), effective as of the day immediately following
the Consolidation Date (the "Start Date"), for the purpose of consolidating all
of the Existing Leases, if any, into a single, separate and distinct Lease of
the Equipment described in Section 2 below, and all of the Existing Financings
into a single, separate and distinct Financing of the Financed Items described
in Section 3 below. The terms and conditions of the Master Agreement are hereby
incorporated by reference into this Schedule. All capitalized terms used in this
Schedule without definition have the meanings ascribed to them in the Master
Agreement.
1. EXISTING LEASES AND FINANCINGS. Each of the ___ Existing Leases and the ___
Existing Financings being consolidated pursuant to this Schedule have been
evidenced by the Master Agreement, the Advance Pricing Agreement and an
Acceptance Certificate. The Acceptance Dates specified in the Acceptance
Certificates relating to such Existing Leases are as follows:
_____________________. The Acceptance Dates specified in the Acceptance
Certificates relating to such Existing Financings are as follows: _____________.
2. LEASE.
A. DESCRIPTION OF ITEMS OF LEASED EQUIPMENT TOTAL COST
B. INITIAL TERM: _____ Months (measured from the Start Date)
3. FINANCING.
A. DESCRIPTION OF FINANCED ITEMS TOTAL COST
B. TERM: _____ Months (measured from the Start Date)
4. RENT:
For Lease: ____________________
For Financing: ________________
Total Rent: ___________________
RENT IS PAYABLE: ___in advance ___in arrears (check one)
___monthly ___quarterly (check one)
Lessee shall pay Lessor (a) on the first day of each calendar month or
calendar quarter (depending on whether Rent is payable monthly or quarterly
as specified above) if Rent is payable in advance, or (b) on the last day of
each calendar month or calendar quarter (depending on whether Rent is
payable monthly or quarterly as specified above) if Rent is payable in
arrears, the Rent payment specified above for the length of the Initial Term
in the case of a Lease and for the length of the Term in the case of a
Financing. The First Payment Date shall be the Start Date if Rent is payable
in advance or the last day of the month or quarter (as applicable) in which
the Start Date occurs if Rent is payable in arrears. In addition, on the
First Payment Date Lessee shall also pay Lessor an amount equal to
$__________ (which is the aggregate amount payable by Lessee to Lessor with
respect to the Existing Leases and the Existing Financings pursuant to the
terms of the Advance Pricing Agreement Number specified above).
5. ADVANCE RENT: _______________________
6. EQUIPMENT LOCATION:________________________________________________________.
7. SELLER:____________________________________________________________________.
8. ADDITIONAL PROVISIONS:______________________________________________________
___________________________________________________________________________.
LESSOR AGREES TO LEASE TO LESSEE AND LESSEE AGREES TO LEASE FROM LESSOR THE
EQUIPMENT DESCRIBED IN SECTION 2.A ABOVE, IF ANY, AND LESSOR AND LESSEE AGREE TO
ENTER INTO A FINANCING OF THE FINANCED ITEMS DESCRIBED IN SECTION 3.A ABOVE, IF
ANY. SUCH LEASE AND/OR FINANCING WILL BE GOVERNED BY THE MASTER AGREEMENT AND
THIS SCHEDULE, INCLUDING THE IMPORTANT ADDITIONAL TERMS AND CONDITIONS SET FORTH
ABOVE. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS SCHEDULE AND THE
MASTER AGREEMENT, THE TERMS OF THIS SCHEDULE SHALL GOVERN.
LESSEE: LESSOR:
_________________________________ COMPAQ FINANCIAL SERVICES CORPORATION
BY:______________________________ BY: _________________________________
_________________________________ _____________________________________
NAME AND TITLE NAME AND TITLE
_________________________________ _____________________________________
DATE DATE
<PAGE>
EXHIBIT D TO MASTER AGREEMENT
MASTER LEASE AND FINANCING AGREEMENT
ACCEPTANCE CERTIFICATE
Compaq Financial Services Corporation ("Lessor") and ("Lessee") are
parties to the Master Lease and Financing Agreement (the "Master Agreement")
and the Schedule under such Master Agreement (the "Schedule") identified by
the Master Agreement Number and Schedule Number, respectively, specified
above. The Master Agreement and Schedule together comprise a separate Lease,
a separate Financing, or a separate Lease and a separate Financing, as the
case may be, that is being accepted and commenced pursuant to this Acceptance
Certificate. All capitalized terms used in this Acceptance Certificate
without definition have the meanings ascribed to them in the Master Agreement.
1. LEASE ACCEPTANCE. Lessee hereby acknowledges that the Equipment
described in Section 1 of the Schedule, if any, or if different, the Equipment
described in the attached invoice or other attachment hereto, has been delivered
to the Equipment Location specified below, inspected by Lessee and found to be
in good operating order and condition, and has been unconditionally and
irrevocably accepted by Lessee under the Lease evidenced by the Master Agreement
and the Schedule as of the Acceptance Date set forth below.
2. FINANCING ACCEPTANCE. Lessee hereby acknowledges that the Financed
Items described in Section 2 of the Schedule, if any, or if different, the
Financed Items described in the attached invoice or other attachment hereto,
have been received or incurred by Lessee and have been unconditionally and
irrevocably accepted by Lessee under the Financing evidenced by the Master
Agreement and the Schedule, as of the Acceptance Date set forth below.
3. LESSEE ACKNOWLEDGEMENTS. Lessee hereby agrees to faithfully 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 hereby acknowledges its agreement to pay Lessor Rent
payments, as set forth in the Schedule, plus any applicable taxes, together with
all other costs, expenses and charges whatsoever which Lessee is required to pay
pursuant to the Master Agreement and the Schedule, in each instance at the times
and in the manner set forth in the Master Agreement and the Schedule,
respectively.
4. The Equipment has been installed and is located at the following
Equipment Location:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
[LESSEE]
BY:
-----------------------------------
--------------------------------------
Name and Title
ACCEPTANCE DATE:
----------------------
<PAGE>
EXHIBIT E TO MASTER AGREEMENT
Master Agreement _____
APA Number _____
MASTER LEASE AND FINANCING AGREEMENT
ADVANCE PRICING AGREEMENT ACCEPTANCE CERTIFICATE NUMBER
Compaq Financial Services Corporation ("Lessor") and________________
("Lessee") are parties to the Master Lease and Financing Agreement (the "Master
Agreement") and the Advance Pricing Agreement (the "Advance Pricing Agreement")
identified by the Master Agreement Number and APA Number, respectively,
specified above. This Acceptance Certificate, together with the Advance Pricing
Agreement and the Master Agreement, comprise a separate Lease, a separate
Financing, or a separate Lease and a separate Financing, as the case may be,
that is being accepted and commenced pursuant hereto. All capitalized terms used
in this Acceptance Certificate without definition have the meanings ascribed to
them in the Master Agreement.
1. LEASE ACCEPTANCE. Lessee hereby acknowledges that the Equipment
described in the invoices listed in Section 1 of the Attachment hereto has been
delivered to the Equipment Location specified in said Attachment, inspected by
Lessee and found to be in good operating order and condition, and has been
unconditionally and irrevocably accepted by Lessee under the Lease evidenced by
this Acceptance Certificate, the Advance Pricing Agreement and the Master
Agreement as of the Acceptance Date set forth below. The Seller of the Equipment
is specified in Section 1 of the Attachment hereto.
2. FINANCING ACCEPTANCE. Lessee hereby acknowledges that the Financed
Items described in the invoices listed in Section 2 of the Attachment hereto
have been received or incurred by Lessee and have been unconditionally and
irrevocably accepted by Lessee under the Financing evidenced by the Acceptance
Certificate, the Advance Pricing Agreement and the Master Agreement as of the
Acceptance Date set forth below. The Seller of the Financed Items is specified
in Section 2 of the Attachment hereto.
3. LESSEE ACKNOWLEDGEMENTS. Lessee hereby agrees to faithfully perform all
of its obligations under the Master Agreement and the Advance Pricing Agreement
and reaffirms, as of the date hereof, its representations and warranties as set
forth in the Master Agreement. Lessee hereby acknowledges its agreement to pay
Lessor Rent payments in the amounts determined pursuant to the Advance Pricing
Agreement plus any applicable taxes, together with all other costs, expenses and
charges whatsoever which Lessee is required to pay pursuant to the Master
Agreement and the Advance Pricing Agreement, in each instance at the times and
in the manner set forth in the Master Agreement and the Advance Pricing
Agreement, respectively.
4. The Equipment has been installed and is located at the Equipment
Location(s) set forth in the Attachment.
[LESSEE]
BY:___________________________________
______________________________________
Name and Title
ACCEPTANCE DATE:______________________
ACKNOWLEDGED AND ACCEPTED:
COMPAQ FINANCIAL SERVICES CORPORATION
By__________________________________
____________________________________
Name and Title
____________________________________
Date
<PAGE>
Master Agreement Number _________
APA Number _________
ATTACHMENT TO ACCEPTANCE CERTIFICATE NO____
1. LEASE
<TABLE>
<CAPTION>
Equipment Description Total Cost
--------------------- ----------
Seller by Invoice No. Amount to be Funded Equipment Location
------ -------------- ------------------- ------------------
<S> <C> <C> <C>
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
</TABLE>
2. FINANCING
<TABLE>
<CAPTION>
Equipment Description Total Cost
--------------------- ----------
Seller by Invoice No. Amount to be Funded Equipment Location
------ -------------- ------------------- ------------------
<S> <C> <C> <C>
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT F TO MASTER AGREEMENT
COUNTERPART NO. _______ OF _______. TO THE EXTENT THAT THIS SCHEDULE
CONSTITUTES CHATTEL PAPER (AS DEFINED ON THE UCC), NO SECURITY INTEREST IN
THIS SCHEDULE MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY
COUNTERPART OTHER THAN COUNTERPART NO. 1.
Master Agreement Number _____
Schedule Number _____
MASTER LEASE AND FINANCING AGREEMENT SCHEDULE
No. o
COMPAQ FINANCIAL SERVICES CORPORATION ("Lessor") and
______________________________ ("Lessee") are parties to a Master Lease
Agreement, Number _____ (the "Master Agreement"). This Schedule (which shall be
identified by the Schedule Number specified above) and the Master Agreement
together comprise a separate Lease, a separate Financing or a separate Lease and
a separate Financing, as the case may be, between the parties. The terms and
conditions of the Master Agreement are hereby incorporated by reference into
this Schedule. All capitalized terms used in this Schedule without definition
have the meanings ascribed to them in the Master Agreement.
WHEREAS, the equipment described in this Schedule comprising of Hardware
and Software (the "Equipment"), or a portion thereof, has already been
delivered, and legal title has passed, to Lessee; and
WHEREAS, Lessee desires to sell such Equipment to Lessor and lease it back
from Lessor pursuant to the Lease, and Lessor desires to purchase the Equipment
and lease it back to Lessee pursuant to the Lease.
NOW, therefore, the parties agree as follows:
1. TRANSFER OF TITLE IN EQUIPMENT: Lessee shall transfer all of its right,
title and interest in and to the Equipment to Lessor and shall deliver to Lessor
a properly executed Bill of Sale in the form supplied by Lessor covering the
Equipment.
2. CONDITIONS PRECEDENT TO PURCHASE OF EQUIPMENT: The obligation of Lessor to
purchase or pay for any Equipment for which title thereto is in Lessee, and to
lease the same to Lessee under this Schedule, shall be subject to the following
conditions precedent:
(a) receipt by Lessor, prior to the Cut-Off Date of this Schedule, of each of
the following additional documents in form and substance satisfactory to
Lessor: (i) a Bill of Sale in the form supplied by Lessor transferring
title to each unit of Equipment to Lessor free and clear of all liens and
encumbrances (ii) if applicable, a Payment Authorization in the form
supplied by Lessor, which provides that Lessor shall be authorized to pay
the respective vendor(s) designated by Lessee the amounts so designated,
which amounts shall be consistent with the invoices of such respective
vendors delivered by Lessee to Lessor as of the date hereof, and (iii)
paid invoices; (iv) copies of cancelled checks for all the Equipment to be
sold and leased-back hereunder (and inspection and acceptance of such
invoices by Lessor) or a notarized affidavit attesting that payment of
invoices has been effectuated; (v) a Secretary's Certificate in the form
supplied by Lessor; (vi) an executed Master Agreement; and (vii) such
other documents as Lessor may reasonably request, which may include (but
shall not necessarily be limited to) an Acknowledgment by Supplier in the
form supplied by Lessor.
(b) No Lessee Default, or event which but for the passing of time or giving of
notice or both would constitute a Lessee Default has occurred and is
continuing.
3. LESSEE REPRESENTATIONS: Lessee, as seller hereunder, and as further
inducement to Lessor to purchase the Equipment and to advance its funds to
Lessee (or as Lessee may otherwise direct in writing) hereby represents and
warrants to Lessor that:
(a)Lessee is not insolvent within the meaning of any federal or state laws and
the consummation of the proposed transaction will not cause Lessee to become
insolvent;
(b)The payment by Lessor to Lessee of acquisition cost of the Equipment is fair
consideration for each item of Equipment, within the meaning of all federal
and state laws;
(c)All invoices and/or purchase orders presented by Lessee to Lessor for the
Equipment have been paid by Lessee and are true and correct and all relate to
the item being leased; and
(d)The sale of the Equipment has been duly authorized by all necessary
corporate action and constitutes the legal, valid binding obligation of
Lessee.
4. LIENS AND ENCUMBRANCES: If at any time, before or after the Acceptance Date
as it pertains to this Schedule, the Equipment is found to be encumbered by
liens or encumbrances pre-existing the date of the Bill of Sale for the
Equipment, Lessor, at its option, may request Lessee to forthwith take such
action as is necessary or appropriate to remove such liens or encumbrances. In
the event that Lessee fails to take such action, Lessor may take such action as
is either necessary or appropriate to remove such liens or encumbrances. In all
events, Lessee shall reimburse Lessor upon demand for all sums theretofore paid
by Lessor, including out-of-
<PAGE>
pocket expenses, incurred by Lessor in having the liens or encumbrances removed,
plus interest at the rate of 1-1/2% per month (or such lesser rate as is the
maximum rate allowable under applicable law). Lessor's rights hereunder are in
addition to, and not in derogation of, any rights which Lessor may have at law
or in equity.
5. ACCEPTANCE OF EQUIPMENT BY LESSEE: NOTWITHSTANDING ANYTHING CONTRARY
CONTAINED IN SECTION 3 OF THE MASTER AGREEMENT, THE EQUIPMENT HEREUNDER SHALL BE
DEEMED TO BE UNCONDITIONALLY AND IRREVOCABLY ACCEPTED BY LESSEE FOR ALL PURPOSES
UNDER THIS SCHEDULE AS OF THE DATE OF THE BILL OF SALE DELIVERED TO LESSOR (FOR
PURPOSES OF THIS SCHEDULE ONLY THE "ACCEPTANCE DATE").
6. EQUIPMENT LOCATION: The Equipment is located at the following location
o
7. LEASE.
A. DESCRIPTION OF ITEMS OF LEASED EQUIPMENT TOTAL COST
B. INITIAL TERM: ____ Months (plus the number of days from and
including the Acceptance Date through and including the last day of the
calendar month or quarter (depending on whether Rent is payable monthly
or quarterly as specified in Section 3 below) in which the Acceptance
Date occurs).
8. FINANCINGS.
A. DESCRIPTION OF FINANCED ITEMS TOTAL COST
B. TERM: ____ Months (plus the number of days from and including the
Acceptance Date through and including the last day of the calendar month
or quarter (depending on whether Rent is payable monthly or quarterly as
specified on Section 3 below) in which the Acceptance Date occurs).
9. RENT:
For Lease: $ (plus applicable taxes)
For Financing: $ (plus applicable taxes)
Total Rent: $ (plus applicable taxes)
RENT IS PAYABLE: ___in advance ___in arrears (check one)
___monthly ___quarterly (check one)
Lessee shall pay Lessor (a) on the first day of each calendar month or calendar
quarter (depending on whether Rent is payable monthly or quarterly as specified
above) if Rent is payable in advance, or (b) on the last day of each calendar
month or calendar quarter (depending on whether Rent is payable monthly or
quarterly as specified above) if Rent is payable in arrears, the Rent payment
specified above for the length of the Initial Term in the case of a Lease and
for the length of the Term in the case of a Financing. The First Payment Date
shall be the first day (if Rent is payable in advance) or the last day (if Rent
is payable in arrears) of the month or quarter (as applicable) immediately
following the month or quarter (as applicable) in which the Acceptance Date
occurs. However, if Rent is payable in advance and if the Acceptance Date falls
on the first day of a month or quarter (as applicable), that date shall be the
First Payment Date. In addition, on the First Payment Date Lessee shall also pay
Lessor an amount equal to the Daily Rent multiplied by the number of days from
and including the Acceptance Date (Funding Date in the case of a Financing) up
to but excluding the first day of the month or quarter (as applicable) in which
the First Payment Date occurs. Lessor's obligation to purchase and lease the
Equipment is subject to the Acceptance Date being on or before the Cut-Off Date
(specified herein).
10. CUT-OFF DATE: For the purposes of this Lease, the Cut-Off Date is o.
11. ADVANCE PAYMENT TERMS: o
12. END OF LEASE PURCHASE, RENEWAL AND RETURN OPTIONS: See Section 4 of the
Master Agreement.
<PAGE>
13. ADVANCE RENT. In the event that Lessee has made any advance Rent payment
("Advance Rent"), such Advance Rent shall be refunded without interest to Lessee
only if Lessor declines to sign this Schedule. Advance Rent will be credited to
Lessee's first Rent payment under this Lease and any excess Advance Rent will be
credited to Lessee's final Rent payment of the Initial Term of this Lease.
14. ADDITIONAL TERMS; COUNTERPARTS. The Lessor and Lessee agree that the terms
and conditions contained in this Schedule shall apply to the lease of all
Equipment under this Lease. In the event of any conflict between the terms of
this Schedule and the Master Agreement, the provisions of this Schedule shall
govern.
LESSOR AGREES TO LEASE TO LESSEE AND LESSEE AGREES TO LEASE FROM LESSOR THE
EQUIPMENT DESCRIBED IN SECTION 1.A ABOVE, IF ANY, AND LESSOR AND LESSEE AGREE TO
ENTER INTO A FINANCING OF THE FINANCED ITEMS DESCRIBED IN SECTION 2.A ABOVE, IF
ANY. SUCH LEASE AND/OR FINANCING WILL BE GOVERNED BY THE MASTER AGREEMENT AND
THIS SCHEDULE, INCLUDING THE IMPORTANT ADDITIONAL TERMS AND CONDITIONS SET FORTH
ABOVE. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS SCHEDULE AND THE
MASTER AGREEMENT, THE TERMS OF THIS SCHEDULE SHALL GOVERN.
LESSEE: LESSOR:
_________________________________ COMPAQ FINANCIAL SERVICES CORPORATION
BY:______________________________ BY: _________________________________
NAME:____________________________ NAME:________________________________
DATE:____________________________ DATE:________________________________
<PAGE>
EXHIBIT 10.6
(PART 2)
COUNTERPART NO. _______ OF _______. TO THE EXTENT THAT THIS SCHEDULE
CONSTITUTES CHATTEL PAPER (AS DEFINED ON THE UCC), NO SECURITY INTEREST IN
THIS SCHEDULE MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY
COUNTERPART OTHER THAN COUNTERPART NO. 1.
Master Agreement Number 100924
Schedule Number 100924000001
MASTER LEASE AND FINANCING AGREEMENT SCHEDULE
No. 100924000001
COMPAQ FINANCIAL SERVICES CORPORATION ("Lessor") and and LivePerson, Inc.
("Lessee") are parties to a Master Lease Agreement, Number 100924 (the "Master
Agreement"). This Schedule (which shall be identified by the Schedule Number
specified above) and the Master Agreement together comprise a separate Lease, a
separate Financing or a separate Lease and a separate Financing, as the case may
be, between the parties. The terms and conditions of the Master Agreement are
hereby incorporated by reference into this Schedule. All capitalized terms used
in this Schedule without definition have the meanings ascribed to them in the
Master Agreement.
WHEREAS, the equipment described in this Schedule comprising of Hardware
and Software (the "Equipment"), or a portion thereof, has already been
delivered, and legal title has passed, to Lessee; and
WHEREAS, Lessee desires to sell such Equipment to Lessor and lease it back
from Lessor pursuant to the Lease, and Lessor desires to purchase the Equipment
and lease it back to Lessee pursuant to the Lease.
NOW, therefore, the parties agree as follows:
1. TRANSFER OF TITLE IN EQUIPMENT: Lessee shall transfer all of its right,
title and interest in and to the Equipment to Lessor and shall deliver to
Lessor a properly executed Bill of Sale in the form supplied by Lessor
covering the Equipment.
2. CONDITIONS PRECEDENT TO PURCHASE OF EQUIPMENT: The obligation of Lessor to
purchase or pay for any Equipment for which title thereto is in Lessee, and to
lease the same to Lessee under this Schedule, shall be subject to the following
conditions precedent:
(a) receipt by Lessor, prior to the Cut-Off Date of this Schedule, of each of
the following additional documents in form and substance satisfactory to
Lessor: (i) a Bill of Sale in the form supplied by Lessor transferring
title to each unit of Equipment to Lessor free and clear of all liens and
encumbrances (ii) if applicable, a Payment Authorization in the form
supplied by Lessor, which provides that Lessor shall be authorized to pay
the respective vendor(s) designated by Lessee the amounts so designated,
which amounts shall be consistent with the invoices of such respective
vendors delivered by Lessee to Lessor as of the date hereof, and (iii)
paid invoices; (iv) copies of cancelled checks for all the Equipment to be
sold and leased-back hereunder (and inspection and acceptance of such
invoices by Lessor) or a notarized affidavit attesting that payment of
invoices has been effectuated; (v) a Secretary's Certificate in the form
supplied by Lessor; (vi) an executed Master Agreement; and (vii) such
other documents as Lessor may reasonably request, which may include (but
shall not necessarily be limited to) an Acknowledgment by Supplier in the
form supplied by Lessor.
(b) No Lessee Default, or event which but for the passing of time or giving of
notice or both would constitute a Lessee Default has occurred and is
continuing.
3. LESSEE REPRESENTATIONS: Lessee, as seller hereunder, and as further
inducement to Lessor to purchase the Equipment and to advance its funds to
Lessee (or as Lessee may otherwise direct in writing) hereby represents and
warrants to Lessor that:
(a) Lessee is not insolvent within the meaning of any federal or state laws
and the consummation of the proposed transaction will not cause Lessee to
become insolvent;
(b) The payment by Lessor to Lessee of acquisition cost of the Equipment is
fair consideration for each item of Equipment, within the meaning of all
federal and state laws;
(c) All invoices and/or purchase orders presented by Lessee to Lessor for the
Equipment have been paid by Lessee and are true and correct and all relate
to the item being leased; and
(d) The sale of the Equipment has been duly authorized by all necessary
corporate action and constitutes the legal, valid binding obligation of
Lessee.
4. LIENS AND ENCUMBRANCES: If at any time, before or after the Acceptance
Date as it pertains to this Schedule, the Equipment is found to be encumbered by
liens or encumbrances pre-existing the date of the Bill of Sale for the
Equipment, Lessor, at its option, may request Lessee to forthwith take such
action as is necessary or appropriate to remove such liens or encumbrances. In
the event that Lessee fails to take such action, Lessor may take such action as
is either necessary or appropriate to remove such liens or encumbrances. In all
events, Lessee shall reimburse Lessor upon demand for all sums theretofore paid
by Lessor, including out-of-pocket expenses, incurred by Lessor in having the
liens or encumbrances removed, plus interest at the rate of 1-1/2% per month (or
such lesser rate as is the maximum rate allowable under applicable law).
Lessor's rights hereunder are in addition to, and not in derogation of, any
rights which Lessor may have at law or in equity.
5. ACCEPTANCE OF EQUIPMENT BY LESSEE: NOTWITHSTANDING ANYTHING CONTRARY
CONTAINED IN SECTION 3 OF THE MASTER AGREEMENT, THE EQUIPMENT HEREUNDER SHALL BE
DEEMED TO BE UNCONDITIONALLY AND IRREVOCABLY ACCEPTED BY LESSEE FOR ALL PURPOSES
UNDER THIS SCHEDULE AS OF THE DATE OF THE BILL OF SALE DELIVERED TO LESSOR (FOR
PURPOSES OF THIS SCHEDULE ONLY THE "ACCEPTANCE DATE").
<PAGE>
6. EQUIPMENT LOCATION: The Equipment is located at the following location
See Attached Exhibit A
7. LEASE.
A. DESCRIPTION OF ITEMS OF LEASED EQUIPMENT TOTAL COST
See Attached Exhibit A $1,797,059.85
B. INITIAL TERM: 24 Months (plus the number of days from and including
the Acceptance Date through and including the last day of the calendar month or
quarter (depending on whether Rent is payable monthly or quarterly as specified
in Section 3 below) in which the Acceptance Date occurs).
8. FINANCINGS.
A. DESCRIPTION OF FINANCED ITEMS TOTAL COST
See Attached Exhibit A $0.00
B. TERM: 24 Months (plus the number of days from and including the
Acceptance Date through and including the last day of the calendar month
or quarter (depending on whether Rent is payable monthly or quarterly as
specified on Section 3 below) in which the Acceptance Date occurs).
9. RENT:
For Lease: $78,801.72 (plus applicable taxes)
For Financing: $0.00 (plus applicable taxes)
Total Rent: $78,801.72 (plus applicable taxes)
RENT IS PAYABLE: /X/ in advance / / in arrears (check one)
/X/ monthly / / quarterly (check one)
Lessee shall pay Lessor (a) on the first day of each calendar month or calendar
quarter (depending on whether Rent is payable monthly or quarterly as specified
above) if Rent is payable in advance, or (b) on the last day of each calendar
month or calendar quarter (depending on whether Rent is payable monthly or
quarterly as specified above) if Rent is payable in arrears, the Rent payment
specified above for the length of the Initial Term in the case of a Lease and
for the length of the Term in the case of a Financing. The First Payment Date
shall be the first day (if Rent is payable in advance) or the last day (if Rent
is payable in arrears) of the month or quarter (as applicable) immediately
following the month or quarter (as applicable) in which the Acceptance Date
occurs. However, if Rent is payable in advance and if the Acceptance Date falls
on the first day of a month or quarter (as applicable), that date shall be the
First Payment Date. In addition, on the First Payment Date Lessee shall also pay
Lessor an amount equal to the Daily Rent multiplied by the number of days from
and including the Acceptance Date (Funding Date in the case of a Financing) up
to but excluding the first day of the month or quarter (as applicable) in which
the First Payment Date occurs. Lessor's obligation to purchase and lease the
Equipment is subject to the Acceptance Date being on or before the Cut-Off Date
(specified herein).
10. CUT-OFF DATE: For the purposes of this Lease, the Cut-Off Date is
September 30, 2000.
11. ADVANCE PAYMENT TERMS: ONE RENTAL PAYMENT IN THE AMOUNT OF $78,801.72 PLUS
APPLICABLE TAXES.
12. END OF LEASE PURCHASE, RENEWAL AND RETURN OPTIONS: See Section 4 of the
Master Agreement.
13. ADVANCE RENT. In the event that Lessee has made any advance Rent payment
("Advance Rent"), such Advance Rent shall be refunded without interest to Lessee
only if Lessor declines to sign this Schedule. Advance Rent will be credited to
Lessee's first Rent payment under this Lease and any excess Advance Rent will be
credited to Lessee's final Rent payment of the Initial Term of this Lease.
14. ADDITIONAL TERMS; COUNTERPARTS. The Lessor and Lessee agree that the terms
and conditions contained in this Schedule shall apply to the lease of all
Equipment under this Lease. In the event of any conflict between the terms of
this Schedule and the Master Agreement, the provisions of this Schedule shall
govern.
LESSOR AGREES TO LEASE TO LESSEE AND LESSEE AGREES TO LEASE FROM LESSOR THE
EQUIPMENT DESCRIBED IN SECTION 1.A ABOVE, IF ANY, AND LESSOR AND LESSEE AGREE TO
ENTER INTO A FINANCING OF THE FINANCED ITEMS DESCRIBED IN SECTION 2.A ABOVE, IF
ANY. SUCH LEASE AND/OR FINANCING WILL BE GOVERNED BY THE MASTER AGREEMENT AND
THIS SCHEDULE, INCLUDING THE IMPORTANT ADDITIONAL
<PAGE>
TERMS AND CONDITIONS SET FORTH ABOVE. IN THE EVENT OF ANY CONFLICT BETWEEN THE
TERMS OF THIS SCHEDULE AND THE MASTER AGREEMENT, THE TERMS OF THIS SCHEDULE
SHALL GOVERN.
LESSEE: LESSOR:
LIVEPERSON, INC. COMPAQ FINANCIAL SERVICES CORPORATION
BY: /S/ TIMOTHY E. BIXBY BY: /S/ LEE D. EBERDING
------------------------------ ---------------------------------
NAME: Timothy E. Bixby NAME: Lee D. Eberding
---------------------------- --------------------------------
TITLE: EVP/CFO TITLE: Director, Operations
--------------------------- -------------------------------
DATE: 9/27/00 DATE: 10/2/00
---------------------------- --------------------------------
<PAGE>
EXHIBIT 10.6
(PART 3)
COUNTERPART NO. _______ OF _______. TO THE EXTENT THAT THIS SCHEDULE
CONSTITUTES CHATTEL PAPER (AS DEFINED ON THE UCC), NO SECURITY INTEREST IN
THIS SCHEDULE MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY
COUNTERPART OTHER THAN COUNTERPART NO. 1.
Master Agreement Number 100924
Schedule Number 100924000002
MASTER LEASE AND FINANCING AGREEMENT SCHEDULE
No. 100924000002
COMPAQ FINANCIAL SERVICES CORPORATION ("Lessor") and and LivePerson, Inc.
("Lessee") are parties to a Master Lease Agreement, Number 100924 (the "Master
Agreement"). This Schedule (which shall be identified by the Schedule Number
specified above) and the Master Agreement together comprise a separate Lease, a
separate Financing or a separate Lease and a separate Financing, as the case may
be, between the parties. The terms and conditions of the Master Agreement are
hereby incorporated by reference into this Schedule. All capitalized terms used
in this Schedule without definition have the meanings ascribed to them in the
Master Agreement.
WHEREAS, the equipment described in this Schedule comprising of Hardware
and Software (the "Equipment"), or a portion thereof, has already been
delivered, and legal title has passed, to Lessee; and
WHEREAS, Lessee desires to sell such Equipment to Lessor and lease it back
from Lessor pursuant to the Lease, and Lessor desires to purchase the Equipment
and lease it back to Lessee pursuant to the Lease.
NOW, therefore, the parties agree as follows:
1. TRANSFER OF TITLE IN EQUIPMENT: Lessee shall transfer all of its right,
title and interest in and to the Equipment to Lessor and shall deliver to
Lessor a properly executed Bill of Sale in the form supplied by Lessor
covering the Equipment.
2. CONDITIONS PRECEDENT TO PURCHASE OF EQUIPMENT: The obligation of Lessor to
purchase or pay for any Equipment for which title thereto is in Lessee, and to
lease the same to Lessee under this Schedule, shall be subject to the following
conditions precedent:
(a) receipt by Lessor, prior to the Cut-Off Date of this Schedule, of each of
the following additional documents in form and substance satisfactory to
Lessor: (i) a Bill of Sale in the form supplied by Lessor transferring
title to each unit of Equipment to Lessor free and clear of all liens and
encumbrances (ii) if applicable, a Payment Authorization in the form
supplied by Lessor, which provides that Lessor shall be authorized to pay
the respective vendor(s) designated by Lessee the amounts so designated,
which amounts shall be consistent with the invoices of such respective
vendors delivered by Lessee to Lessor as of the date hereof, and (iii)
paid invoices; (iv) copies of cancelled checks for all the Equipment to be
sold and leased-back hereunder (and inspection and acceptance of such
invoices by Lessor) or a notarized affidavit attesting that payment of
invoices has been effectuated; (v) a Secretary's Certificate in the form
supplied by Lessor; (vi) an executed Master Agreement; and (vii) such
other documents as Lessor may reasonably request, which may include (but
shall not necessarily be limited to) an Acknowledgment by Supplier in the
form supplied by Lessor.
(b) No Lessee Default, or event which but for the passing of time or giving of
notice or both would constitute a Lessee Default has occurred and is
continuing.
3. LESSEE REPRESENTATIONS: Lessee, as seller hereunder, and as further
inducement to Lessor to purchase the Equipment and to advance its funds to
Lessee (or as Lessee may otherwise direct in writing) hereby represents and
warrants to Lessor that:
(a) Lessee is not insolvent within the meaning of any federal or state laws
and the consummation of the proposed transaction will not cause Lessee to
become insolvent;
(b) The payment by Lessor to Lessee of acquisition cost of the Equipment is
fair consideration for each item of Equipment, within the meaning of all
federal and state laws;
(c) All invoices and/or purchase orders presented by Lessee to Lessor for the
Equipment have been paid by Lessee and are true and correct and all relate
to the item being leased; and
(d) The sale of the Equipment has been duly authorized by all necessary
corporate action and constitutes the legal, valid binding obligation of
Lessee.
4. LIENS AND ENCUMBRANCES: If at any time, before or after the Acceptance
Date as it pertains to this Schedule, the Equipment is found to be encumbered by
liens or encumbrances pre-existing the date of the Bill of Sale for the
Equipment, Lessor, at its option, may request Lessee to forthwith take such
action as is necessary or appropriate to remove such liens or encumbrances. In
the event that Lessee fails to take such action, Lessor may take such action as
is either necessary or appropriate to remove such liens or encumbrances. In all
events, Lessee shall reimburse Lessor upon demand for all sums theretofore paid
by Lessor, including out-of-pocket expenses, incurred by Lessor in having the
liens or encumbrances removed, plus interest at the rate of 1-1/2% per month (or
such lesser rate as is the maximum rate allowable under applicable law).
Lessor's rights hereunder are in addition to, and not in derogation of, any
rights which Lessor may have at law or in equity.
5. ACCEPTANCE OF EQUIPMENT BY LESSEE: NOTWITHSTANDING ANYTHING CONTRARY
CONTAINED IN SECTION 3 OF THE MASTER AGREEMENT, THE EQUIPMENT HEREUNDER SHALL BE
DEEMED TO BE UNCONDITIONALLY AND IRREVOCABLY ACCEPTED BY LESSEE FOR ALL PURPOSES
UNDER THIS SCHEDULE AS OF THE DATE OF THE BILL OF SALE DELIVERED TO LESSOR (FOR
PURPOSES OF THIS SCHEDULE ONLY THE "ACCEPTANCE DATE").
<PAGE>
6. EQUIPMENT LOCATION: The Equipment is located at the following location
See Attached Exhibit A
7. LEASE.
A. DESCRIPTION OF ITEMS OF LEASED EQUIPMENT TOTAL COST
See Attached Exhibit A $924,421.00
B. INITIAL TERM: 24 Months (plus the number of days from and including
the Acceptance Date through and including the last day of the calendar month or
quarter (depending on whether Rent is payable monthly or quarterly as specified
in Section 3 below) in which the Acceptance Date occurs).
8. FINANCINGS.
A. DESCRIPTION OF FINANCED ITEMS TOTAL COST
See Attached Exhibit A $0.00
B. TERM: 24 Months (plus the number of days from and including the
Acceptance Date through and including the last day of the calendar month
or quarter (depending on whether Rent is payable monthly or quarterly as
specified on Section 3 below) in which the Acceptance Date occurs).
9. RENT:
10.
For Lease: $39,204.83 (plus applicable taxes)
For Financing: $0.00 (plus applicable taxes)
Total Rent: $39,204.83 (plus applicable taxes)
RENT IS PAYABLE: /X/ in advance / / in arrears (check one)
/X/ monthly / / quarterly (check one)
Lessee shall pay Lessor (a) on the first day of each calendar month or calendar
quarter (depending on whether Rent is payable monthly or quarterly as specified
above) if Rent is payable in advance, or (b) on the last day of each calendar
month or calendar quarter (depending on whether Rent is payable monthly or
quarterly as specified above) if Rent is payable in arrears, the Rent payment
specified above for the length of the Initial Term in the case of a Lease and
for the length of the Term in the case of a Financing. The First Payment Date
shall be the first day (if Rent is payable in advance) or the last day (if Rent
is payable in arrears) of the month or quarter (as applicable) immediately
following the month or quarter (as applicable) in which the Acceptance Date
occurs. However, if Rent is payable in advance and if the Acceptance Date falls
on the first day of a month or quarter (as applicable), that date shall be the
First Payment Date. In addition, on the First Payment Date Lessee shall also pay
Lessor an amount equal to the Daily Rent multiplied by the number of days from
and including the Acceptance Date (Funding Date in the case of a Financing) up
to but excluding the first day of the month or quarter (as applicable) in which
the First Payment Date occurs. Lessor's obligation to purchase and lease the
Equipment is subject to the Acceptance Date being on or before the Cut-Off Date
(specified herein).
10. CUT-OFF DATE: For the purposes of this Lease, the Cut-Off Date is
September 30, 2000.
11. ADVANCE PAYMENT TERMS: ONE RENTAL PAYMENT IN THE AMOUNT OF $39,204.83 PLUS
APPLICABLE TAXES.
12. END OF LEASE PURCHASE, RENEWAL AND RETURN OPTIONS: See Section 4 of the
Master Agreement.
13. ADVANCE RENT. In the event that Lessee has made any advance Rent payment
("Advance Rent"), such Advance Rent shall be refunded without interest to Lessee
only if Lessor declines to sign this Schedule. Advance Rent will be credited to
Lessee's first Rent payment under this Lease and any excess Advance Rent will be
credited to Lessee's final Rent payment of the Initial Term of this Lease.
14. ADDITIONAL TERMS; COUNTERPARTS. The Lessor and Lessee agree that the terms
and conditions contained in this Schedule shall apply to the lease of all
Equipment under this Lease. In the event of any conflict between the terms of
this Schedule and the Master Agreement, the provisions of this Schedule shall
govern.
LESSOR AGREES TO LEASE TO LESSEE AND LESSEE AGREES TO LEASE FROM LESSOR THE
EQUIPMENT DESCRIBED IN SECTION 1.A ABOVE, IF ANY, AND LESSOR AND LESSEE AGREE TO
ENTER INTO A FINANCING OF THE FINANCED ITEMS DESCRIBED IN SECTION 2.A ABOVE, IF
ANY. SUCH LEASE AND/OR FINANCING WILL BE GOVERNED BY THE MASTER AGREEMENT AND
THIS SCHEDULE, INCLUDING THE IMPORTANT ADDITIONAL
<PAGE>
TERMS AND CONDITIONS SET FORTH ABOVE. IN THE EVENT OF ANY CONFLICT BETWEEN THE
TERMS OF THIS SCHEDULE AND THE MASTER AGREEMENT, THE TERMS OF THIS SCHEDULE
SHALL GOVERN.
LESSEE: LESSOR:
LIVEPERSON, INC. COMPAQ FINANCIAL SERVICES CORPORATION
BY: /S/ TIMOTHY E. BIXBY BY: /S/ LEE D. EBERDING
------------------------------ ---------------------------------
NAME: Timothy E. Bixby NAME: Lee D. Eberding
---------------------------- --------------------------------
TITLE: EVP/CFO TITLE: Director, Operations
--------------------------- -------------------------------
DATE: 9/27/00 DATE: 10/2/00
---------------------------- --------------------------------
<PAGE>
Master Agreement Number 100924
Schedule Number 100924000001
MASTER LEASE AND FINANCING AGREEMENT
ACCEPTANCE CERTIFICATE
Compaq Financial Services Corporation ("Lessor") and LivePerson, Inc.
("Lessee") are parties to the Master Lease and Financing Agreement (the "Master
Agreement") and the Schedule under such Master Agreement (the "Schedule")
identified by the Master Agreement Number and Schedule Number, respectively,
specified above. The Master Agreement and Schedule together comprise a separate
Lease, a separate Financing, or a separate Lease and a separate Financing, as
the case may be, that is being accepted and commenced pursuant to this
Acceptance Certificate. All capitalized terms used in this Acceptance
Certificate without definition have the meanings ascribed to them in the Master
Agreement.
1. LEASE ACCEPTANCE. Lessee hereby acknowledges that the Equipment
described in Section 1 of the Schedule, if any, or if different, the Equipment
described in the attached invoice or other attachment hereto, has been delivered
to the Equipment Location specified below, inspected by Lessee and found to be
in good operating order and condition, and has been unconditionally and
irrevocably accepted by Lessee under the Lease evidenced by the Master Agreement
and the Schedule as of the Acceptance Date set forth below.
2. FINANCING ACCEPTANCE. Lessee hereby acknowledges that the Financed
Items described in Section 2 of the Schedule, if any, or if different, the
Financed Items described in the attached invoice or other attachment hereto,
have been received or incurred by Lessee and have been unconditionally and
irrevocably accepted by Lessee under the Financing evidenced by the Master
Agreement and the Schedule, as of the Acceptance Date set forth below.
3. LESSEE ACKNOWLEDGEMENTS. Lessee hereby agrees to faithfully 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 hereby acknowledges its agreement to pay Lessor Rent
payments, as set forth in the Schedule, plus any applicable taxes, together with
all other costs, expenses and charges whatsoever which Lessee is required to pay
pursuant to the Master Agreement and the Schedule, in each instance at the times
and in the manner set forth in the Master Agreement and the Schedule,
respectively.
4. The Equipment has been installed and is located at the following
Equipment Location:
665 Broadway, Suite 1200, New York, NY 10012
--------------------------------------------------------------------------
462 7th Avenue, New York, NY 10018
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111 8th Ave., Suite 209, New York, NY 10011
--------------------------------------------------------------------------
LIVEPERSON, INC.
BY: /S/ TIMOTHY E. BIXBY
-----------------------------------
Timothy E. Bixby, EVP/CFO
--------------------------------------
Name and Title
ACCEPTANCE DATE: 9/27/00
----------------------