Master Lease Agreement - Comdisco Inc. and First Virtual Holdings Inc.
EQUIPMENT SCHEDULE NO. 1
DATED OCTOBER 24, 1996
TO MASTER LEASE AGREEMENT DATED OCTOBER 24, 1996 ("MASTER LEASE")
LESSEE: FIRST VIRTUAL HOLDINGS INCORPORATED LESSOR: COMDISCO, INC.
ADDRESS FOR LEGAL NOTICES: ADDRESS FOR ALL NOTICES:
11975 El Camino Real Suite 300 6111 North River Road
San Diego, CA 92130 Rosemont, Illinois 60018
ATTN: Corporate Secretary ATTN: Workstation Product
Group
ADDRESS FOR ADMINISTRATIVE CORRESPONDENCE: ADDRESS FOR INVOICES:
11975 El Camino Real Suite 300 11975 El Camino Real Suite 300
San Diego, CA 92130 San Diego, CA 92130
ATTN: Ms. Kate Hopwood ATTN: Ms. Kate Hopwood
PHONE: 619-793-2700
FAX: 619-793-2950 LESSEE REFERENCE NO:
(24 Digits Maximum)
INITIAL TERM/
RENT INTERVAL: 36 Months
LOCATION OF EQUIPMENT:
LEASE RATE FACTOR: .017400
11975 El Camino Real Suite 300
San Diego, CA 92130
ESTIMATED RENT: $7,589.67
ATTN: Mr. Jason Murillo
PHONE: 619-793-2700
EQUIPMENT (AS DEFINED BELOW):
ITEM MACHINE MODEL/ SERIAL
NO. QTY. MFG. TYPE FEATURE DESCRIPTION NUMBER
---- ---- ---- ------- ------- ----------- ------
SEE ATTACHMENT A
<PAGE> 2
RISK OF LOSS: Pursuant to the Master Lease, Lessor and Lessee agree that the
risk of loss is the responsibility of the Lessee.
NOTICE PERIOD: not less than ninety (90) days nor more than twelve (12) months
prior to the expiration of the lease term. If Lessee gives proper written
notice of termination but fails to return the Equipment on the expiration date
of the Initial Term, the Lease will be instated and an additional sixty (60)
days written notice of termination will be required, which termination will be
effective at the end of the month following the 60 day notice requirement. The
periodic Rent will continue at the current rate until the effective date of the
written notice of termination and the Equipment is returned.
SPECIAL TERMS: The following additional terms are a part of this Equipment
Schedule. The terms and conditions of the Master Lease Agreement as they
pertain to this Equipment Schedule are modified and amended as follows:
1. COMMENCEMENT DATE AND PURCHASE/LEASEBACK
The Commencement Date for each item of Equipment will be the day on
which that item is installed and qualified for a commercially available
manufacturer's standard maintenance contract or warranty coverage, if
available. For Equipment not being provided by IBM, Lessee agrees to
confirm the Commencement Date by providing Lessor with either a
Commencement Certificate in the form provided by Lessor or the vendor's
invoice containing the Equipment location, description, serial number
and cost, the Commencement Date and Lessee's signature, within ten (10)
days of the Commencement Date. As additional Rent, Lessee will include
with the Invoice to be paid by Lessor, its payment to Lessor of forty
percent (40%) of the total amount of such Invoice. The Initial Term will
begin on the first day of the calendar month following the Commencement
Date for all items of Equipment.
Lessor's obligations under this Equipment Schedule and the periodic Rent
described in this Equipment Schedule are contingent upon Lessor
purchasing the Equipment for an aggregate amount of approximately
$436,188.00 pursuant to satisfactory purchase documentation. Lessee
acknowledges that it has either received or approved Lessor's purchase
documentation for the Equipment. If the Commencement Date occurs later
than February 1, 1997 ("Outside Date"), if the Commencement Certificate
or vendor invoices are not provided within ten (10) days of the
Commencement Date, or if the cost or configuration of the Equipment
changes, Lessor may adjust the Lease Rate Factors or the periodic Rent
to reflect any additional costs or expenses resulting from those
changes.
2. INTEREST RATE CHANGE
The Lease Rate Factors or the periodic Rent described in this Equipment
Schedule have been calculated using an interest rate based on the 3-year
U.S. Treasury Constant Maturity of 6.08% as described in the Federal
Reserve Statistical Release H.15 ("Treasury Rate"). If the Commencement
Date for the last item of Equipment prior to the beginning of the
Initial Term occurs later than February ,1 1997 and the Treasury Rate is
greater, or there is an adverse change in Lessee's credit standing,
Lessor may adjust the Lease Rate Factors or the periodic Rent for all
items of Equipment accordingly.
3. MODEL UPGRADE
During the Initial Term of this Equipment Schedule, so long as Lessee is
not in default and there has been no material adverse change in Lessee's
credit standing at the time, Lessee will lease and Lessor will finance
new or supply used, all model upgrades to the Equipment pursuant to
mutually agreeable terms and conditions and at an amount which would be
obtainable at the commencement of the Initial Term for the model upgrade
in an arm's-length transaction between an informed and willing
lessee/user and an informed and willing lessor/dealer under no
compulsion to lease.
<PAGE> 3
MASTER LEASE: This Equipment Schedule is issued pursuant to the Master Lease
identified on page 1 of this Equipment Schedule. All of the terms and
conditions of the Master Lease are incorporated in and made a part of this
Equipment Schedule as if expressly described in this Equipment Schedule, and
this Equipment Schedule constitutes a separate lease for the Equipment. The
parties reaffirm all of the terms and conditions of the Master Lease
(including, without limitation, the representations and warranties set forth in
the Master Lease) except as modified by this Equipment Schedule. This Equipment
Schedule may not be amended or rescinded except by a writing signed by both
parties.
FIRST VIRTUAL HOLDINGS INCORPORATED COMDISCO, INC.
as Lessee as Lessor
By: John M. Stachowiak By: William J. Skrzypczak
-------------------------------- -------------------------------------
Title: V.P. Finance & Administration Title: William J. Skrzypczak
& CFO Vice President Open Systems
----------------------------- ----------------------------------
Date: December 31, 1996 Date: 1-7-97
------------------------------ -----------------------------------
<PAGE> 4
ATTACHMENT A
P.O. NUMBER: 001-91996-DG
VENDOR/SUPPLIER: SHIP TO:
---------------- --------
COMPANY NAME: Sun Microsystems, Inc. COMPANY NAME: First Virtual Holdings, Inc.
CONTACT NAME: Kathy Javier CONTACT NAME: Jason Murillo
ADDRESS: 2550 Garcia Ave ADDRESS: 11975 El Camino Real
MailStop: UMIL06-02 Suite 300
Mountain View, CA 94043 San Diego, CA 92130
PHONE: 408/276-1670 PHONE: 619-793-2700
FAX: 408/942-1821 FAX: 619-793-2950
ORDER DATE: BILL TO: Accounts Payable-same address
TERMS: Net 30 SHIP:
FOB: EST. DELIVERY:
ORDERED BY: Scott Stewart
DEPT. SUPERVISOR: Debbie Gibb AUTHORIZED BY: Jack Donegan, Lee Stein
SIGNATURE: SIGNATURE:
DATE: DATE:
ITEM # PRODUCT DESCRIPTION QTY. UNIT PRICE EXT. PRICE
------ ------------------- ---- ---------- ----------
E5000 Enterprise 5000 System Cabinet, 8 slot card cage, one SunCD, two 2 $34,200.00 $68,400.00
Power/Cooling Modules, Solaris Server License
2500A 167Mhz UltraSPARC Module w/512Kbyte of external cache 16 $4,200.00 $67,200.00
7022A 256MB mem, expansion (8x32MB SIMMs) 8 $10,800.00 $86,400.00
2600A CPU/Memory Board, mo procesr no memory 8 $5,400.00 $43,200.00
2610A Enterprise Family Sbus I/O brd 4 $3,900.00 $15,600.00
595A Fibre Channel Optical Module, 2nd Fibre channel port for use on 14 $360.00 $5,040.00
SPARCstorage or 25MB Sbus
1057A 25MB Sbus Fibre Channel Host adapter, single-channel host 6 $960.00 $5,760.00
connection for Array
1053A Sbus Fast SCSI 2/buffered ethernet card 4 $657.00 $2,628.00
6259A 4-8GB 4mm int DDS2 tape drive 2 $900.00 $1,800.00
0792AR4 63GB (30x2.0 GB 7200 RPM fst/wide SCSI-2 SC Disks) SPARC 4 $28,080.00 $112,320.00
storage Array w/Fibre channel
NOTES: SUB-TOTAL
TAX
SHIPPING
TOTAL
(CONTINUED)
001-91996-DG Page 1 of 2
<PAGE> 5
P.O. NUMBER: 001-91996-DG
VENDOR/SUPPLIER: SHIP TO:
---------------- --------
COMPANY NAME: Sun Microsystems, Inc. COMPANY NAME: First Virtual Holdings, Inc.
CONTACT NAME: Kathy Javier CONTACT NAME: Jason Murillo
ADDRESS: 2550 Garcia Ave ADDRESS: 11975 El Camino Real
MailStop: UMIL06-02 Suite 300
Mountain View, CA 94043 San Diego, CA 92130
PHONE: 408/276-1670 PHONE: 619-793-2700
FAX: 408/942-1821 FAX: 619-793-2950
ORDER DATE: BILL TO: Accounts Payable-same address
TERMS: Net 30 SHIP:
FOB: EST. DELIVERY:
ORDERED BY: Scott Stewart
DEPT. SUPERVISOR: Debbie Gibb AUTHORIZED BY: Jack Donegan, Lee Stein
SIGNATURE: SIGNATURE:
DATE: DATE:
ITEM # PRODUCT DESCRIPTION QTY. UNIT PRICE EXT. PRICE
------ ------------------- ---- ---------- ----------
0959A SPARCstorage Array Accessr. kit for Enterprise system or Expansion 2 $0.00 $0.00
Cabinet (media/docum)
03800A Power Cord for Enterprise system and expansion cabinet 2 $0.00 $0.00
0X5151A 2.1 GB 7200 RPM fast/wide SCSI 2 disk unipack w/68 to 68 pin 4 $795.00 $3,180.00
SCSI Cable
0954A Enterprise pwr/cooling mod 300W 4 $1,080.00 $4,320.00
0X6071A 140-280 GB SPARCstorage DLT 4700 auto-loader in desktop 2 $10,140.00 $20,280.00
w/SCSI cable
0SOLS-C Solaris 2.x media for new systems only. Solaris Software (media) 1 $60.00 $60.00
For worldwide use CD ROM for All server SPARC Systems
NOTES: SUB-TOTAL $436,188.00
Total does not include shipping charges. TAX $33,804.57
SHIPPING $0.00
-----------
TOTAL $469,992.57
(CONTINUED)
001-91996-DG (2) Page 2 of 2
<PAGE> 6
CERTIFICATE
The Undersigned, a duly elected Secretary of First Virtual Holdings
Incorporated, a Delaware corporation (the "Company") certifies as follows:
A) The following listed persons are duly elected and acting officers of
the Company (the "Officers") in the capacity set forth opposite
their respective names below and that the facsimile signatures are
true and correct as of the date hereof;
B) The Officers are duly authorized, on behalf of the Company, to
negotiate, execute and deliver the Master Lease Agreement dated as
of October 24, 1996, and the Schedule(s) thereunder and all future
Schedule(s) (the "Agreements") by and between the Company and
Comdisco, Inc., and these Agreements are binding and authorized
Agreements of the Company, enforceable in all respects in accordance
with their terms.
NAME OF OFFICER TITLE SIGNATURE
/s/ John Stachowiak Vice President
---------------------- --------------------- -------------------
Administration and
Finance, Chief
Financial Officer
---------------------- --------------------- -------------------
---------------------- --------------------- -------------------
President,
/s/ Michael Schauer Financial Services
---------------------- --------------------- -------------------
WITNESS MY HAND and the corporate seal of the Company this 24th day of
December, 1996.
/s/ Philip H. Bane
-------------------------
Philip H. Bane
________________Secretary
The Signer of This Certificate Cannot be Listed Above as Authorized to Execute
the Agreements.
<PAGE> 7
[COMDISCO LOGO] MASTER LEASE AGREEMENT
MASTER LEASE AGREEMENT dated October 24, 1996 by and between COMDISCO, INC.
("Lessor") and First Virtual Holdings Incorporated ("Lessee").
IN CONSIDERATION of the mutual agreements described below, the parties agree as
follows (all capitalized terms are defined in Section 14.13):
1. PROPERTY LEASED.
Lessor leases to Lessee all of the Equipment described on each
Schedule. In the event of a conflict, the terms of a Schedule prevail over this
Master Lease.
2. TERM.
On the Commencement Date Lessee will be deemed to accept the Equipment,
will be bound to its rental obligations for each item of Equipment and the term
of a Schedule will begin and continue through the Initial Term and thereafter
until terminated by either party upon prior written notice received during the
Notice Period. No termination may be effective prior to the expiration of the
Initial Term.
3. RENT AND PAYMENT.
Rent is due and payable in advance, in immediately available funds, on
the first day of each Rent Interval to the payee and at the location specified
in Lessor's invoice. Interim Rent is due and payable when invoiced. If any
payment is not made when due, Lessee will pay interest at the Overdue Rate.
4. SELECTION AND WARRANTY AND DISCLAIMER OF WARRANTIES.
4.1 Selection. Lessee acknowledges that it has selected the Equipment
and disclaims any reliance upon statements made by the Lessor.
4.2 Warranty and Disclaimer of Warranties. Lessor warrants to Lessee
that, so long as Lessee is not in default, Lessor will not disturb Lessee's
quiet and peaceful possession, and unrestricted use of the Equipment. To the
extent permitted by the manufacturer, Lessor assigns to Lessee during the term
of the Schedule any manufacturer's warranties for the Equipment. LESSOR MAKES
NO OTHER WARRANTY, EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER INCLUDING,
WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR A
PARTICULAR PURPOSE. Lessor is not responsible for any liability, claim, loss,
damage or expense of any kind (including strict liability in tort) caused by
the Equipment except for any loss or damage caused by the negligent acts of
Lessor. In no event is Lessor responsible for special, incidental or
consequential damages.
5. TITLE AND ASSIGNMENT.
5.1 Title. Lessee holds the Equipment subject and subordinate to the
rights of the Owner, Lessor, any Assignee and any Secured Party. Lessee
authorizes Lessor, as Lessee's agent, to prepare, execute and file in Lessee's
name precautionary Uniform Commercial Code financing statements showing the
interest of the Owner, Lessor, and any Assignee or Secured Party in the
Equipment and to insert serial numbers in Schedules as appropriate. Except as
provided in Sections 5.2 and 7.2, Lessee will, at its expense, keep the
Equipment free and clear from any liens or encumbrances of any kind (except any
caused by Lessor) and will indemnify and hold Lessor, Owner, any Assignee and
Secured Party harmless from and against any loss caused by Lessee's failure to
do so.
5.2 Relocation or Sublease. Upon prior written notice, Lessee may
relocate Equipment to any location within the continental United States provided
(i) the Equipment will not be used by an entity exempt from federal income tax
and (ii) all additional costs (including any administrative fees, additional
taxes and insurance coverage) are reconciled and promptly paid by Lessee.
Lessee may sublease the Equipment upon the reasonable consent of the
Lessor and the Secured Party. Such consent to sublease will be granted if: (i)
Lessee meets the relocation requirements set out above, (ii) the sublease is
expressly subject and subordinate to the terms of the Schedule, (iii) Lessee
assigns its rights in the sublease to Lessor and the Secured Party as
additional collateral and security, (iv) Lessee's obligation to maintain and
insure the Equipment is not altered, (v) all financing statements required to
continue the Secured Party's prior perfected security interest are filed, and
(vi) the sublease is not to a leasing entity affiliated with the manufacturer
of the Equipment described on the Schedule. Lessor acknowledges Lessee's right
to sublease for a term which extends beyond the expiration of the Initial Term.
If Lessee subleases the Equipment for a term extending beyond the expiration of
such Initial Term of the applicable Schedule, Lessee shall remain obligated
upon the expiration of the Initial Term to return such Equipment, or, at
Lessor's sole discretion to (i) return Like Equipment or (ii) negotiate a
mutually acceptable lease extension or purchase. If the parties cannot mutually
agree upon the terms of an extension or purchase, the term of the Schedule will
extend upon the original terms and conditions until terminated pursuant to
Section 2.
No relocation or sublease will relieve Lessee from any of its
obligations under this Master Lease and the applicable Schedule.
5.3 Assignment by Lessor. The terms and conditions of each Schedule
have been fixed by Lessor in order to permit Lessor to sell and/or assign or
transfer its interest or grant a security interest in each Schedule and/or the
Equipment to a Secured Party or Assignee. In that event the term Lessor will
mean the Assignee and any Secured Party. However, any assignment, sale, or other
transfer by Lessor will not relieve Lessor of its obligations to Lessee and will
not materially change Lessee's duties or materially increase the burdens or
risks imposed on Lessee. The Lessee consents to and will acknowledge such
assignments in a written notice given to Lessee. Lessee also agrees that:
(a) The Secured Party will be entitled to exercise all of Lessor's
rights, but will not be obligated to perform any of the obligations of Lessor.
The Secured Party will not disturb Lessee's quiet and peaceful possession and
unrestricted use of the Equipment so long as Lessee is not in default and the
Secured Party continues to receive all Rent payable under the Schedule;
(b) Lessee will pay all Rent and all other amounts payable to the
Secured Party, despite any defense or claim which it has against Lessor. Lessee
reserves its right to have recourse directly against lessor for any defense or
claim; and
(c) Subject to and without impairment of Lessee's leasehold rights in
the Equipment, Lessee holds the Equipment for the Secured Party to the extent
of the Secured Party's rights in that Equipment.
6. NET LEASE AND TAXES AND FEES.
6.1 Net Lease. Each Schedule constitutes a net lease. Lessee's
obligation to pay Rent and all other amounts is absolute and unconditional and
is not subject to any abatement, reduction, set-off, defense, counterclaim,
interruption, deferment or recoupment for any reason whatsoever.
6.2 Taxes and Fees. Lessee will pay when due or reimburse Lessor for
all taxes, fees or any other charges (together with any related interest or
penalties not arising from the negligence of Lessor) accrued for or arising
during the term of each Schedule against Lessor, Lessee or the Equipment by any
governmental authority (except only Federal, state and local taxes on the
capital or the net income of Lessor). Lessor will file all personal property
tax returns for the Equipment and pay all property taxes due. Lessee will
reimburse Lessor for property taxes within thirty (30) days of receipt of an
invoice.
7. CARE, USE AND MAINTENANCE, ATTACHMENTS AND RECONFIGURATIONS AND INSPECTION
BY LESSOR.
7.1 Care, Use and Maintenance. Lessee will maintain the Equipment in
good operating order and appearance, protect the Equipment from deterioration,
other than normal wear and tear, and will not use the Equipment for any purpose
other than that for which it was designed. If commercially available, Lessee
will maintain in force a standard maintenance contract with the manufacturer of
the Equipment, or another party acceptable to Lessor, and upon request will
provide Lessor with a complete copy of that contract. If Lessee has the
Equipment maintained by a party other than the manufacturer, Lessee agrees to
pay any costs necessary for the manufacturer to bring the Equipment to then
current release, revision and engineering change levels, and to re-certify the
Equipment as eligible for manufacturer's maintenance at the expiration of the
lease term. The lease term will continue upon the same terms and conditions
until recertification has been obtained.
7.2 Attachments and Reconfigurations. Upon prior written notice to
Lessor, Lessee may reconfigure and install Attachments on the Equipment. In the
event of such a Reconfiguration or Attachment, Lessee shall, upon return of the
Equipment, at its expense, restore the Equipment to the original configuration
specified on the Schedule in accordance with the manufacturer's specifications
and in the same operating order, repair and appearance as when installed
(normal wear and tear excluded). If any parts are removed from the Equipment
during the Reconfiguration or Attachment, the restoration will include, at
Lessee's option, the installation of either the original removed parts or Like
Parts. Alternatively, with Lessor's prior written consent which will not be
unreasonably withheld, Lessee may return the Equipment with any Attachment or
upgrade. If any parts of the Equipment are removed during a Reconfiguration or
Attachment, Lessor may require Lessee to provide additional security,
satisfactory to the Lessor, in order to ensure performance of Lessee's
obligations set forth in this subsection. Neither Attachments nor parts
installed on Equipment in the course of Reconfiguration shall be accessions to
the Equipment.
However, if the Reconfiguration or Attachment (i) adversely affects
Lessor's tax benefits relating to the Equipment; (ii) is not capable of being
removed without causing material damage to the Equipment; or (iii) if at the
time of the Reconfiguration or Attachment the manufacturer does not offer on a
commercial basis a means for the removal of the additional items then such
Reconfiguration or
<PAGE> 8
Attachment is subject to the prior written consent of Lessor.
7.3 Inspection by Lessor. Upon request, Lessee, during reasonable
business hours and subject to Lessee's security requirements, will make the
Equipment and its related log and maintenance records available to Lessor for
inspection.
8. REPRESENTATIONS AND WARRANTIES OF LESSEE.
Lessee represents and warrants that for the Master Lease and each
Schedule:
(a) The execution, delivery and performance of the Lessee have been
duly authorized by all necessary corporate action;
(b) The individual executing was duly authorized to do so;
(c) The Master Lease and each Schedule constitute legal, valid and
binding agreements of the Lessee enforceable in accordance with
their terms; and
(d) The Equipment is personal property and when subjected to use by the
Lessee will not be or become fixtures under applicable law.
9. DELIVERY AND RETURN OF EQUIPMENT.
Lessee assumes the full expense of transportation and in-transit
insurance to Lessee's premises and for installation of the Equipment. Upon
expiration or termination of each Schedule, Lessee will, at Lessor's
instructions and at Lessee's expense (including transportation and in-transit
insurance), have the Equipment deinstalled, audited by the manufacturer, packed
and shipped in accordance with the manufacturer's specifications and returned
to Lessor in the same operating order, repair and appearance as when installed
(ordinary wear and tear excluded), to a location within the continental United
States as directed by Lessor. All items returned to Lessor in addition to the
Equipment become property of Lessor.
10. LABELING.
Upon request, Lessee will mark the Equipment indicating Lessor's
interest. Lessee will keep all Equipment free from any other marking or
labeling which might be interpreted as a claim of ownership.
11. INDEMNITY.
Lessee will indemnify and hold Lessor, any Assignee and any Secured
Party harmless from and against any and all claims, costs, expenses, damages
and liabilities, including reasonable attorney's fees, arising out of the
ownership (for strict liability in tort only), selection, possession, leasing,
operation, control, use, maintenance, delivery, return or other disposition of
the Equipment. However, Lessee is not responsible to a party indemnified
hereunder for any claims, costs, expenses, damages and liabilities occasioned
by the negligent acts of such indemnified party. Lessee agrees to carry bodily
injury and property damage liability insurance during the term of the Master
Lease in amounts and against risks customarily insured against by the Lessee on
equipment owned by it. Any amounts received by Lessor under that insurance will
be credited against Lessee's obligations under this Section.
12. RISK OF LOSS.
12.1 Lessee's Risk of Loss. If the Schedule indicates that the Lessee
has responsibility for the risk of loss of the Equipment, then the following
terms will apply:
Effective upon delivery and until the Equipment is returned, Lessee
relieves Lessor of responsibility for all risks of physical damage to or loss
or destruction of the Equipment. Lessee will carry casualty insurance for each
item of Equipment in an amount not less than the Casualty Value. All policies
for such insurance will name the Lessor and any Secured Party as additional
insured and as loss payee, and will provide for at least thirty (30) days prior
written notice to the Lessor of cancellation or expiration. The Lessee will
furnish appropriate evidence of such insurance.
Lessee shall promptly repair any damaged item of Equipment unless such
Equipment has suffered a Casualty Loss. Within fifteen (15) days of a Casualty
Loss, Lessee will provide written notice of that loss to Lessor and Lessee
will, at Lessor's option, either (a) replace the item of Equipment with Like
Equipment and marketable title to the Like Equipment will automatically vest in
Lessor or (b) pay the Casualty Value and after that payment and the payment of
all other amounts due and owing, Lessee's obligation to pay further Rent for
the item of Equipment will cease.
12.2 Lessor's Risk of Loss. If the Schedule indicates that the Lessor
has responsibility for the risk of loss of the Equipment, then the following
terms will apply:
Effective upon delivery and throughout the initial Term of a Schedule
and any extension, Lessor agrees to insure the Equipment against physical
damage to or loss or destruction due to external cause as specified by the
terms of Lessor's then current insurance policy. Lessor relieves Lessee of
responsibility for physical damage to or loss or destruction of Equipment
reimbursed by that insurance. Lessee will give Lessor prompt notice of any
damage, loss or destruction to any item of Equipment and Lessor will determine
within fifteen (15) days of its receipt of that notice whether the item has
suffered a Casualty Loss.
If any item of Equipment suffers damage or a Casualty Loss which is
reimbursable under Lessor's insurance, upon payment by Lessee of Lessor's
deductible, Lessor will (i) pay for damaged Equipment, arrange and pay for the
repair of any damaged item of Equipment; or (ii) (for any Casualty Loss) at
Lessor's option either replace the item of Equipment with Like Equipment, or
upon payment of all other amounts due by Lessee terminate the relevant Schedule
as it relates to that item of Equipment.
If any item of Equipment suffers damage or a Casualty Loss which is not
reimbursable under Lessor's insurance, then Lessee will comply with the
provisions of the last paragraph of Section 12.1 regarding repair, replacement
or payment of Casualty Value.
If Lessor fails to maintain insurance coverage as required by this
subsection 12.2, Lessee will assume such risk of loss and, at the request of
any Assignee or Secured Party, will promptly provide insurance coverage. This
paragraph does not relieve Lessor or its obligations to maintain coverage of
the Equipment.
13. DEFAULT, REMEDIES AND MITIGATION.
13.1 Default. The occurrence of any one or more of the following Events
of Default constitutes a default under a Schedule:
(a) Lessee's failure to pay Rent or other amounts payable by Lessee
when due if that failure continues for ten (10) days after written
notice; or
(b) Lessee's failure to perform any other term or condition of the
Schedule or the material inaccuracy of any representation or
warranty made by the Lessee in the Schedule or in any document or
certificate furnished to the Lessor hereunder if that failure or
inaccuracy continues for fifteen (15) days after written notice; or
(c) An assignment by Lessee for the benefit of its creditors, the
failure by Lessee to pay its debts when due, the insolvency of
Lessee, the filing by Lessee or the filing against Lessee of any
petition under any bankruptcy or insolvency law or for the
appointment of a trustee or other officer with similar powers,
the adjudication of Lessee as insolvent, the liquidation of Lessee,
or the taking of any action for the purpose of the foregoing; or
(d) The occurrence of an Event of Default under any Schedule or other
agreement between Lessee and Lessor or its Assignee or Secured
Party.
13.2 Remedies. Upon the occurrence of any of the above Events of
Default, Lessor, at its option, may:
(a) enforce Lessee's performance of the provisions of the applicable
Schedule by appropriate court action in law or in equity;
(b) recover from Lessee any damages and or expenses, including Default
Costs;
(c) with notice and demand, recover all sums due and accelerate and
recover the present value of the remaining payment stream of all
Rent due under the defaulted Schedule (discounted at the same rate
of interest at which such defaulted Schedule was discounted with a
Secured Party plus any prepayment fees charged to Lessor by the
Secured Party or, if there is no Secured Party, then discounted at
6%) together with all Rent and other amounts currently due as
liquidated damages and not as a penalty;
(d) with notice and process of law and in compliance with Lessee's
security requirements, Lessor may enter Lessee's premises to remove
and repossess the Equipment without being liable to Lessee for
damages due to the repossession, except those resulting from
Lessor's, its assignees', agents' or representatives' negligence;
and
(e) pursue any other remedy permitted by law or equity.
The above remedies, in Lessor's discretion and to the extent permitted
by law, are cumulative and may be exercised successively or concurrently.
13.3 Mitigation. Upon return of the Equipment pursuant to the terms of
Section 13.2, Lessor will use its best efforts in accordance with its normal
business procedures (and without obligation to give any priority to such
Equipment) to mitigate Lessor's damages as described below. EXCEPT AS SET FORTH
IN THIS SECTION, LESSEE HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER CONFERRED BY
STATUTE OR OTHERWISE WHICH MAY REQUIRE LESSOR TO MITIGATE ITS DAMAGES OR MODIFY
ANY OF LESSOR'S RIGHTS OR REMEDIES STATED HEREIN. Lessor may sell, lease or
otherwise dispose of all or any part of the Equipment at a public or private
sale for cash or credit with the privilege of purchasing the Equipment. The
proceeds from any sale, lease or other disposition of the Equipment are defined
as either:
(a) if sold or otherwise disposed of, the cash proceeds less the Fair
Market Value of the Equipment at the expiration of the Initial Term
less the Default Costs; or
(b) if leased, the present value (discounted at three points over the
prime rate as referenced in the Wall Street Journal at the time of
the mitigation) of the rentals for a term not to exceed the Initial
Term, less the Default Costs.
Any proceeds will be applied against liquidated damages and any other
sums due to Lessor from Lessee. However, Lessee is liable to Lessor for, and
Lessor may recover, the amount by which the proceeds are less than the
liquidated damages and other sums due to Lessor from Lessee.
<PAGE> 9
14. ADDITIONAL PROVISIONS.
14.1 Entire Agreement. This Master Lease and associated Schedules
supersede all other oral or written agreements or understandings between the
parties concerning the Equipment including, for example, purchase orders. ANY
AMENDMENT OF THIS MASTER LEASE OR A SCHEDULE, MAY ONLY BE ACCOMPLISHED BY A
WRITING SIGNED BY THE PARTY AGAINST WHOM THE AMENDMENT IS SOUGHT TO BE ENFORCED.
14.2 No Waiver. No action taken by Lessor or Lessee shall be deemed to
constitute a waiver of compliance with any representation, warranty or covenant
contained in this Master Lease or a Schedule. The waiver by Lessor or Lessee of
a breach of any provision of this Master Lease or a Schedule will not operate or
be construed as a waiver of any subsequent breach.
14.3 Binding Nature. Each Schedule is binding upon, and inures to the
benefit of Lessor and its assigns. LESSEE MAY NOT ASSIGN ITS RIGHTS OR
OBLIGATIONS.
14.4 Survival of Obligations. All agreements, obligations including, but
not limited to those arising under Section 6.2, representations and warranties
contained in this Master Lease, any Schedule or in any document delivered in
connection with those agreements are for the benefit of Lessor and any Assignee
or Secured Party and survive the execution, delivery, expiration or termination
of this Master Lease.
14.5 Notices. Any notice, request or other communication to either party by
the other will be given in writing and deemed received upon the earlier of
actual receipt or three days after mailing if mailed postage prepaid by regular
or airmail to Lessor (to the attention of "Lease Administrator") or Lessee, at
the address set out in the Schedule or, one day after it is sent by courier or
facsimile transmission if receipt is verified by the receiving party.
14.6 Applicable Law. THIS MASTER LEASE HAS BEEN, AND EACH SCHEDULE WILL
HAVE BEEN MADE, EXECUTED AND DELIVERED IN THE STATE OF ILLINOIS AND WILL BE
GOVERNED AND CONSTRUED FOR ALL PURPOSES IN ACCORDANCE WITH THE LAWS OF THE STATE
OF ILLINOIS WITHOUT GIVING EFFECT TO CONFLICT OF LAW PROVISIONS. NO RIGHTS OR
REMEDIES REFERRED TO IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE WILL BE
CONFERRED ON LESSEE UNLESS EXPRESSLY GRANTED IN THIS MASTER LEASE OR A SCHEDULE.
14.7 Severability. If any one or more of the provisions of this Master
Lease or any Schedule is for any reason held invalid, illegal or unenforceable,
the remaining provisions of this Master Lease and any such Schedule will be
unimpaired, and the invalid, illegal or unenforceable provision replaced by a
mutually acceptable valid, legal and enforceable provision that is closest to
the original intention of the parties.
14.8 Counterparts. This Master Lease and any Schedule may be executed in
any number of counterparts, each of which will be deemed an original, but all
such counterparts together constitute one and the same instrument. If Lessor
grants a security interest in all or any part of a Schedule, the Equipment or
sums payable thereunder, only that counterpart Schedule marked "Secured Party's
Original" can transfer Lessor's rights and all other counterparts will be
marked "Duplicate".
14.9 Nonspecified Features and Licensed Products. If the Equipment is
supplied from Lessor's inventory and contains any features not specified in the
Schedule, Lessee grants Lessor the right to remove any such features. Any
removal will be performed by the manufacturer or another party acceptable to
Lessee, upon the request of Lessor, at a time convenient to Lessee, provided
that Lessee will not unreasonably delay the removal of such features.
Lessee shall obtain no title to Licensed Products which will at all times
remain the property of the owner of the Licensed Products. A license from the
owner may be required and it is Lessee's responsibility to obtain any required
license before the use of the Licensed Products. Lessee agrees to treat the
Licensed Products as confidential information of the owner, to observe all
copyright restrictions, and not to reproduce or sell the Licensed Products.
14.10 Additional Documents. Lessee will, upon execution of this Master
Lease and as may be required thereafter, provide Lessor with a secretary's
certificate of incumbency and authority and any other documents reasonably
requested by Lessor. Upon the execution of each Schedule with an aggregate Rent
in excess of $2,000,000, Lessee will provide Lessor with an opinion from
Lessee's counsel regarding the representations and warranties in Section 8.
Lessee will furnish, upon request, audited financial statements for the most
recent period.
14.11 Electronic Communications. Each of the parties may communicate with
the other by electronic means under mutually agreeable terms.
14.12 Lessor's Right to Match. Lessee's rights under Section 5.2 and 7.2
are subject to Lessor's right to match any sublease or upgrade proposed by a
third party. Lessee will provide Lessor with the terms of the third party offer
and Lessor will have three (3) business days to match the offer. Lessee shall
obtain such upgrade from or sublease the Equipment to Lessor if Lessor has
timely matched the third party offer.
14.13 Definitions.
ASSIGNEE -- means an entity to whom Lessor has sold or assigned its rights as
owner and Lessor of Equipment.
ATTACHMENT -- means any accessory, equipment or device and the installation
thereof that does not impair the original function or use of the Equipment and
is capable of being removed without causing material damage to the Equipment and
is not an accession to the Equipment.
CASUALTY LOSS -- means the irreparable loss or destruction of Equipment.
CASUALTY VALUE -- means the greater of the aggregate Rent remaining to be paid
for the balance of the lease term or the Fair Market Value of the Equipment
immediately prior to the Casualty Loss. However, if a Casualty Value Table is
attached to the relevant Schedule its terms will control.
COMMENCEMENT CERTIFICATE -- means the Lessor provided certificate which must be
signed by Lessee within ten days of the Commencement Date as requested by
Lessor.
COMMENCEMENT DATE -- is defined in each Schedule.
DEFAULT COSTS -- means reasonable attorney's fees and remarketing costs
resulting from a Lessee default or Lessor's enforcement of its remedies.
EQUIPMENT -- means the property described on a Schedule and any replacement for
that property required or permitted by this Master Lease or a Schedule but not
including any Attachment.
EVENT OF DEFAULT -- means the events described in Subsection 13.1.
FAIR MARKET VALUE -- means the aggregate amount which would be obtainable in an
arm's-length transaction between an informed and willing buyer/user and an
informed and willing seller under no compulsion to sell.
INITIAL TERM -- means the period of time beginning on the first day of the
first full Rent Interval following the Commencement Date for all items of
Equipment and continuing for the number of Rent Intervals indicated on a
Schedule.
INSTALLATION DATE -- means the day on which Equipment is installed and
qualified for a commercially available manufacturer's standard maintenance
contract or warranty coverage, if available.
INTERIM RENT -- means the pro-rata portion of Rent due for the period from the
Commencement Date through but not including the first day of the first full
Rent Interval included in the initial Term.
LICENSED PRODUCTS -- means any software or other licensed products attached to
the Equipment.
LIKE EQUIPMENT -- means replacement Equipment which is lien free and of the same
model, type, configuration and manufacture as Equipment.
LIKE PART -- means a substituted part which is lien free and of the same
manufacturer and part number as the removed part, and which when installed on
the Equipment will be eligible for maintenance coverage with the manufacturer
of the Equipment.
NOTICE PERIOD -- means the time period described in a Schedule during which
Lessee may give Lessor notice of the termination of the term of that Schedule.
OVERDUE RATE -- means the lesser of 18% per year or the maximum rate permitted
by the law of the state where the Equipment is located.
OWNER -- means the owner of Equipment.
RECONFIGURATION -- means any change to Equipment that would upgrade or
downgrade the performance capabilities of the Equipment in any way.
RENT -- means the rent, including Interim Rent, Lessee will pay for each item
of Equipment expressed in a Schedule either as a specific amount or an amount
equal to the amount which Lessor pays for an item of Equipment multiplied by a
lease rate factor plus all other amounts due to Lessor under this Master Lease
or a Schedule.
RENT INTERVAL -- means a full calendar month or quarter as indicated on a
Schedule.
SCHEDULE -- means an Equipment Schedule which incorporates all of the terms and
conditions of this Master Lease and, for purposes of Section 14.8, its
associated Commencement Certificate(s).
SECURED PARTY -- means an entity to whom Lessor has granted a security interest
in a Schedule and related Equipment for the purpose of securing a loan.
IN WITNESS WHEREOF, the parties hereto have executed this Master Lease on or as
of the day and year first above written.
First Virtual Holdings Incorporated COMDISCO, INC.
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as Lessee as Lessor
By: /s/ John Stachowiak By:
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