EXHIBIT 10.11
ADDENDUM TO THE
MASTER LEASE AGREEMENT DATED AS OF SEPTEMBER 9, 1998
BETWEEN INTRAWARE, INC., AS LESSEE
AND COMDISCO, INC., AS LESSOR
The undersigned hereby agree that the terms and conditions of the
above-referenced Master Lease Agreement are hereby modified and amended as
follows:
1) SECTION 4.2 "WARRANTY AND DISCLAIMER OF WARRANTIES."
First Sentence, line 2, delete the words "Lessee is not in default"
and insert "no Event of Default has occurred and is continuing,
neither Lessor nor any person or entity claiming by or through
Lessor".
2) SECTION 5.1 "TITLE."
Delete the first sentence in its entirety and replace with: "Lessee
shall have no right, title or interest in the Equipment except as
set forth in this Master Lease or in any Schedule."
Third Sentence, line 3, after the words "caused by Lessor", insert
"or parties claiming by or through Lessor".
3) SECTION 5.3 "ASSIGNMENT BY LESSOR."
In Paragraph (a), second sentence, lines 3 and 4, delete the words
"Lessee is not in default and the Secured Party continues to
receive all Rent payable under the Schedule." and replace with "no
Event of Default has occurred and is continuing".
In Paragraph (b), insert the following clause at the beginning
thereof: "Upon written notice from Lessor,".
4) SECTION 6.1 "NET LEASE."
At the end of second sentence insert the following, ";provided,
however, that Lessee's ability to bring suit against Lessor for
breach of this Master Lease shall not be affected by this Section
6.1.".
5) SECTION 6.2 "TAXES AND FEES."
First Sentence, line 3 delete "accrued for or arising" and replace
with "attributable to periods".
-1-
6) SECTION 7.1 "CARE, USE AND MAINTENANCE; INSPECTION BY LESSOR."
Delete the fourth sentence in its entirety and replace with: "With
Lessor's prior written consent, Lessee may have the Equipment
maintained by a party other than the manufacturer. Lessor approves
Lessee as such maintenance contractor.".
7) SECTION 8 "REPRESENTATIONS AND WARRANTIES OF LESSEE."
Paragraph (f) insert the following at the end thereof: ", except
where the failure to do so would not reasonably be expected to have
a material adverse effect.".
8) SECTION 9 "DELIVERY AND RETURN OF EQUIPMENT."
Second sentence, line 3, after the words "to Lessor's" insert the
word "reasonable".
Fourth sentence, line 1, after the words "under Section 2" insert
",subject to Lessee's security requirements,".
Insert the following sentence at the end of Section 9: "All such
demonstrations will be conducted in such manner as to minimize any
interference with Lessee's operations.".
9) SECTION 11 "INDEMNITY."
Second sentence, in line 3, after the words "negligent acts" insert
"or willful conduct".
10) SECTION 13.1 "DEFAULT."
Paragraph (c), insert the following at the end thereof: "(and any
such involuntary event has not been dismissed or vacated within 30
days)".
11) SECTION 13.2 "REMEDIES."
Paragraph (c), line 5, delete "6%" and insert "U.S. Treasury Notes
of comparable maturity to the remaining term of the defaulted
Schedule".
12) SECTION 13.3 "MITIGATION."
-2-
Paragraph (b), lines 2 and 3, delete "3 percent (3%) over the U.S.
Treasury Notes of comparable maturity to the term of" and insert,
"the same interest rate implicit in".
13) SECTION 14.1 "BOARD ATTENDANCE"
Delete this section in its entirety.
14) SECTION 14.3 "OBLIGATION TO LEASE ADDITIONAL EQUIPMENT."
In line 3, delete "Lessee is in default" and replace with "an Event
of Default has occurred or is continuing".
In line 6 after the words "material indebtedness" insert "for borrowed
money in an amount in excess of $75,000".
15) SECTION 14.4 "MERGER AND SALE PROVISIONS."
In line 2, delete "sixty (60)" and replace with "twenty (20)".
16) SECTION 14.6 "NO WAIVER."
First sentence, insert the following at the beginning thereof:
"Except for a written waiver,".
17) SECTION 14.7 "BINDING NATURE."
Second sentence, insert the following at the end thereof: "EXCEPT
IN ACCORDANCE WITH SECTION 14.4.".
18) SECTION 14.9 "NOTICES."
Line 3, delete "three (3)" and insert "five (5)"; delete "postage
prepaid by regular or air mail" and insert "certified mail, return
receipt requested".
19) SECTION 14.13 "LICENSED PRODUCTS."
After the first sentence insert: "To the extent that Lessor, by
reason of its ownership of the Equipment, holds any license to a
Licensed Product, Lessor shall obtain the right for Lessee to use
any such Licensed Product for the duration of the lease term.".
Third sentence, line 2, after the word "owner" insert "of such
Licensed Product".
-3-
20) SECTION 14.18 "DEFINITIONS."
"Delivery Date" revise the word "Inventory" to read "inventory".
"Like Equipment" delete the words "of the same model, type,
configuration, and manufacture as Equipment." and replace with "of
the same manufacture and of a type, model and feature configuration
having a capability and value equal to or greater than the
Equipment being replaced.".
Except as amended hereby, all other terms and conditions of the Master
Lease Agreement remain in full force and effect.
INTRAWARE, INC. COMDISCO, INC.
as Lessee as Lessor
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxx
----------------------------- ---------------------
Title: Executive Vice President Title: President, Comdisco
and Chief Financial Officer Ventures Division
----------------------------- ---------------------
Date: 9/10/98 Date: 9/11/98
----------------------------- ---------------------
-4-
EQUIPMENT SCHEDULE VL-1
DATED AS OF SEPTEMBER 9, 1998
TO MASTER LEASE AGREEMENT
DATED AS OF SEPTEMBER 9, 1998 (THE "MASTER LEASE")
LESSEE: INTRAWARE, INC. LESSOR: COMDISCO, INC.
ADMIN. CONTACT/PHONE NO.: ADDRESS FOR ALL NOTICES:
------------------------- ------------------------
Name: Xxx Xxxxx, CFO 0000 Xxxxx Xxxxx Xxxx
Phone: (000) 000-0000 Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000 Attn.: Venture Group
Address for Notices:
--------------------
00 Xxxxxx Xxx
Xxxxxx, XX 00000
Central Billing Location: Rent Interval: Monthly
------------------------- --------------
same as above
Attn.:
Lessee Reference No.: ________
(24 digits maximum)
Location of Equipment: Initial Term: 48 months
---------------------- -------------
VARIOUS (Number of Rent Intervals)
Lease Rate Factor: 2.381%
------------------
Attn.:
EQUIPMENT (as defined below): Advance: $11,905.00
--------
Equipment specifically approved by Lessor, which shall be delivered to and
accepted by Lessee during the period September 9, 1998 through March 9, 2000
("Equipment Delivery Period"), for which Lessor receives vendor invoices
approved for payment, up to an aggregate purchase price of $500,000.00
("Commitment Amount"); excluding custom use equipment, leasehold
improvements, installation costs and delivery costs, rolling stock, special
tooling, "stand-alone" software, application software bundled into computer
hardware, hand held items, molds and fungible items.
1. EQUIPMENT PURCHASE
This Schedule contemplates Lessor's acquisition of Equipment for lease to
Lessee, either by one of the first three categories listed below or by
providing Lessee with Equipment from the fourth category, in an aggregate
value up to the Commitment Amount referred to on the face of this Schedule.
If the Equipment acquired is of category (i), (ii), (iii) below, the
effectiveness of the Schedule as it relates to those items of Equipment is
contingent upon Lessee's acknowledgment at the time Lessor acquires the
Equipment that Lessee has either received or approved the relevant purchase
documentation between vendor and Lessor for that Equipment.
(i) NEW ON-ORDER EQUIPMENT. Lessor will purchase new Equipment which is
obtained from a vendor by Lessee for its use subject to Lessor's
prior approval of the Equipment.
(ii) SALE-LEASEBACK EQUIPMENT. Any in-place Equipment installed at
Lessee's site and to which Lessee has clear title and ownership may
be considered by Lessor for inclusion under this Lease (the
"Sale-Leaseback Transaction"). Any request for a Sale-Leaseback
Transaction must be submitted to Lessor in writing (along with
accompanying evidence of Lessee's Equipment ownership satisfactory
to Lessor for all Equipment submitted) no later than October 9,
1998*. Lessor will not perform a Sale-Leaseback Transaction for any
request or accompanying Equipment ownership documents which arrive
after the date marked above by an asterisk (*). Further, any
sale-leaseback Equipment will be placed on lease subject to:
(1) Lessor prior approval of the Equipment; and (2) if approved, at
Lessor's actual net appraised Equipment value pursuant to the
schedule below:
ORIGINAL EQUIPMENT INVOICE PERCENT OF ORIGINAL MANUFACTURER'S
DATE NET EQUIPMENT COST PAID BY LESSOR
-------------------------- ----------------------------------
Between 6/11/98 and 9/9/98 100%
Between 4/11/98 and 6/10/98 80%
Between 1/9/98 and 4/10/98 70%
Lessee represents that it has paid all California sales tax due on the cost
of that portion of Equipment to be installed in California and agrees to
provide evidence of such payment to Lessor, if specifically requested. As a
result of the election, Lessor agrees that it will not invoice Lessee for use
tax on the monthly rental rate. Lessee understands that this is an
irrevocable election to measure the tax by the Equipment Cost and cannot be
changed except prior to installation of the Equipment.
(iii) USED ON-ORDER EQUIPMENT. Lessor will purchase used Equipment which
is obtained from a third party by Lessee for its use subject to
Lessor's prior approval of the Equipment and at Lessor's appraised
value for such used Equipment.
(iv) 800 NUMBER EQUIPMENT. Upon Lessee's use of Comdisco's 1-800 Direct
Service, Lessor will purchase new or used Equipment from a third
party or Lessor will supply new or used Equipment from its inventory
for use by Lessee at rates provided by Lessor.
2. COMMENCEMENT DATE
The Commencement Date for each item of new on-order or used on-order
Equipment will be the install date as confirmed in writing by Lessee as set
forth on the vendor invoice of which a facsimile transmission will constitute
an original document. The Commencement Date for sale-leaseback Equipment
shall be the date Lessor tenders the purchase price. The Commencement Date
for 800 Number Equipment shall be fifteen (15) days from the ship date, such
ship date to be set forth on the vendor invoice or if unavailable on the
vendor invoice the ship date will be determined by Lessor upon other
supporting shipping documentation Lessor will summarize all approved
invoices, purchase documentation and evidence of delivery, as applicable,
received in the same calendar month into a Summary Equipment Schedule in the
form attached to this Schedule as Exhibit 1, and the Initial Term will begin
the first day of the calendar month thereafter. Each Summary Equipment
Schedule will contain the Equipment location description, serial number(s)
and cost and will incorporate the terms and conditions of the Master Lease
and this Schedule and will constitute a separate lease.
3. OPTION TO EXTEND
So long as no Event of Default has occurred and is continuing hereunder,
and upon written notice no earlier than twelve (12) months and no later than
ninety (90) days prior to the expiration of the Initial Term of a Summary
Equipment Schedule, Lessee will have the right to extend the Initial Term of
such Summary Equipment Schedule for a period of one (1) year. In such event,
the rent to be paid during said extended period shall be mutually agreed upon
and if the parties cannot mutually agree, then the Summary Equipment Schedule
shall continue in full force and effect pursuant to the existing terms and
conditions until terminated in accordance with its terms. The Summary
Equipment Schedule will continue in effect following said extended period
until terminated by either party upon not less than ninety (90) days prior
written notice, which notice shall be effective as of the date of receipt.
4. PURCHASE OPTION
So long as no Event of Default has occurred and is continuing hereunder,
and upon written notice no earlier than twelve (12) months and no later than
ninety (90) days prior to the expiration of the Initial Term or the extended
term of the applicable Summary Equipment Schedule, Lessee will have the
option at the expiration of the Initial Term of Summary Equipment Schedule to
purchase all, but not less than all, of the Equipment listed therein for a
purchase price not to exceed 12.5% of the Equipment cost and upon terms and
conditions to be mutually agreed upon by the parties following Lessee's
written notice, plus any taxes applicable at time of purchase. Said purchase
price shall be paid to Lessor at least thirty (30) days before the expiration
date of the Initial Term or extended term. Title to the Equipment shall
automatically pass to Lessee upon payment in full of the purchase price but,
in no event earlier than the expiration of the fixed Initial Term or extended
term, if applicable. If the parties are unable to agree on the purchase price
or terms and conditions with respect to said purchase, then the Summary
Equipment Schedule with respect to this Equipment shall remain in full force
and effect. Notwithstanding the exercise by Lessee of this option and payment
of the purchase price, until all obligations under the applicable Summary
Equipment Schedule have been fulfilled, it is agreed and understood that
Lessor shall retain a purchase money security interest in the Equipment
listed therein and the Summary Equipment Schedule shall constitute a Security
Agreement under the Uniform Commercial Code of the state in which the
Equipment is located.
5. SPECIAL TERMS
The terms and conditions of the Lease as they pertain to this Schedule
are hereby modified and amended as follows:
Master Lease: This Schedule is issued pursuant to the Lease identified on
page 1 of this Schedule. All of the terms and condition of the Lease are
incorporated in and made a part of this Schedule as if they were expressly
set forth in this Schedule. The parties hereby reaffirm all of the terms and
conditions of the Lease (including, without limitation, the representations
and warranties set forth in Section 8) except as modified herein by this
Schedule. This Schedule may not be amended or rescinded except by a writing
signed by both parties.
INTRAWARE, INC. COMDISCO, INC.
AS LESSEE AS LESSOR
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxx
------------------------ --------------------------------
XXXXX X. XXXX
PRESIDENT
Title: EVP/CFO Title: COMDISCO VENTURES DIVISION
--------------------- -----------------------------
Date: 9/10/98 Date: SEP 11 1998
---------------------- ------------------------------
EXHIBIT 1
SUMMARY EQUIPMENT SCHEDULE
This Summary Equipment Schedule dated XXXX is executed pursuant to
Equipment Schedule No. X to the Master Lease Agreement dated XXXX between
Comdisco, Inc. ("Lessor") and XXXX ("Lessee"). All of the terms, conditions,
representations and warranties of the Master Lease Agreement and Equipment
Schedule No. X are incorporated herein and made a part hereof, and this
Summary Equipment Schedule constitutes a Schedule for the Equipment on the
attached invoices.
1. FOR PERIOD BEGINNING: AND ENDING:
2. INITIAL TERM STARTS ON: INITIAL TERM:
(Number of Rent Intervals)
3. TOTAL SUMMARY EQUIPMENT COST:
4. LEASE RATE FACTOR:
5. RENT:
6. ACCEPTANCE DOC TYPE:
EQUIPMENT SCHEDULE VL-2
DATED AS OF SEPTEMBER 9, 1998
TO MASTER LEASE AGREEMENT
DATED AS OF SEPTEMBER 9, 1998 (THE "MASTER LEASE")
LESSEE: INTRAWARE, INC. LESSOR: COMDISCO, INC.
Admin. Contact/Phone No.: Address for all Notices:
------------------------- ------------------------
Name: Xxx Xxxxx 0000 Xxxxx Xxxxx Xxxx
Phone: (000) 000-0000 Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000 Attn.: Venture Group
Address for Notices:
--------------------
00 Xxxxxx Xxx
Xxxxxx, XX 00000
Central Billing Location: Rent Interval: Monthly
------------------------- --------------
same as above
Attn.:
Lessee Reference No.:______________
(24 digits maximum)
Location of Equipment: Initial Term: 48 months
---------------------- -------------
VARIOUS (Number of Rent Intervals)
Lease Rate Factor: 2.381%
------------------
Attn.:
EQUIPMENT (as defined below): Advance: $11,905.00
--------
Software and tenant improvements specifically approved by Lessor, which shall
be delivered to and accepted by Lessee during the period September 9, 1998
through March 9, 2000 ("Equipment Delivery Period") for which Lessor receives
vendor invoices approved for payment, up to an aggregate purchase price of
$500,000.00 ("Commitment Amount"); excluding custom use equipment,
installation costs and delivery costs, rolling stock, special tooling, hand
held items, molds and fungible items.
1. EQUIPMENT PURCHASE
This Schedule contemplates Lessor's acquisition of Equipment for lease
to Lessee, either by one of the first three categories listed below or by
providing Lessee with Equipment from the fourth category, in an aggregate
value up to the Commitment Amount referred to on the face of this Schedule.
If the Equipment acquired is of category (i), (ii), (iii) below, the
effectiveness of this Schedule as it relates to those items of Equipment is
contingent upon Lessee's acknowledgment at the time Lessor acquires the
Equipment that Lessee has either received or approved the relevant purchase
documentation between vendor and Lessor for that Equipment.
(i) NEW ON-ORDER EQUIPMENT. Lessor will purchase new Equipment which
is obtained from a vendor by Lessee for its use subject to Lessor's
prior approval of the Equipment.
(ii) SALE-LEASEBACK EQUIPMENT. Any in-place Equipment installed at
Lessee's site and to which Lessee has clear title and ownership may
be considered by Lessor for inclusion under this Lease (the
"Sale-Leaseback Transaction"). Any request for a Sale-Leaseback
Transaction must be submitted to Lessor in writing (along with
accompanying evidence of Lessee's Equipment ownership satisfactory
to Lessor for all Equipment submitted) no later than October 9,
1998 *. Lessor will not perform a Sale-Leaseback Transaction for
any request or accompanying Equipment ownership documents which
arrive after the date marked above by an asterisk (*). Further,
any sale-leaseback Equipment will be placed on lease subject to:
(1) Lessor prior approval of the Equipment; and (2) if approved,
at Lessor's actual net appraised Equipment value pursuant to the
schedule below:
ORIGINAL EQUIPMENT INVOICE PERCENT OF ORIGINAL MANUFACTURER'S
DATE NET EQUIPMENT COST PAID BY LESSOR
-------------- -------------------------------------
Between 6/11/98 and 9/9/98 100%
Between 4/11/98 and 6/10/98 80%
Between 1/9/98 and 4/10/98 70%
Lessee represents that it has paid all California sales tax due on the cost
of that portion of Equipment to be installed in California and agrees to
provide evidence of such payment to Lessor, if specifically requested. As a
result of the election, Lessor agrees that it will not invoice Lessee for use
tax on the monthly rental rate. Lessee understands that this is an
irrevocable election to measure the tax by the Equipment cost and cannot be
changed except prior to installation of the Equipment.
(iii) USED ON-ORDER EQUIPMENT. Lessor will purchase used Equipment
which is obtained from a third party by Lessee for its use subject to
Lessor's prior approval of the Equipment and at Lessor's appraised value for
such used Equipment.
(iv) 800 NUMBER EQUIPMENT. Upon Lessee's use of Comdisco's 1-800
Direct Service, Lessor will purchase new or used Equipment from a third party
or Lessor will supply new or used Equipment from its inventory for use by
Lessee at rates provided by Lessor.
2. COMMENCEMENT DATE
The Commencement Date for each item of new on-order or used on-order
Equipment will be the install date as confirmed in writing by Lessee as set
forth on the vendor invoice of which a facsimile transmission will constitute
an original document. The Commencement Date for sale-leaseback Equipment
shall be the date Lessor tenders the purchase price. The Commencement Date
for 800 Number Equipment shall be fifteen (15) days from the ship date, such
ship date to be set forth on the vendor invoice or if unavailable on the
vendor invoice the ship date will be determined by Lessor upon other
supporting shipping documentation Lessor will summarize all approved
invoices, purchase documentation and evidence of delivery, as applicable,
received in the same calendar month into a Summary Equipment Schedule in the
form attached to this Schedule as Exhibit 1, and the Initial Term will begin
the first day of the calendar month thereafter. Each Summary Equipment
Schedule will contain the Equipment location description, serial number(s)
and cost and will incorporate the terms and conditions of the Master Lease
and this Schedule and will constitute a separate lease.
3. MISCELLANEOUS
In consideration of Lessor financing software and tenant improvements
hereunder, Lessee agrees in addition to its last Monthly Rent Payment to
remit to Lessor an amount equal to 12.5% of Lessor's aggregate cost of
software and tenant improvements provided hereunder.
4. SPECIAL TERMS
The terms and conditions of the Lease as they pertain to this Schedule
are hereby modified and amended as follows:
(a) SECTION 9. DELIVERY AND RETURN OF EQUIPMENT
Delete second, third and fourth sentences in their entirety.
Master Lease: This Schedule is issued pursuant to the Lease identified on
page 1 of this Schedule. All of the terms and conditions of the Lease are
incorporated in and made a part of this Schedule as if they were expressly
set forth in this Schedule. The parties hereby reaffirm all of the terms and
conditions of the Lease (including, without limitation, the representations
and warranties set forth in Section 8) except as modified herein by this
Schedule. This Schedule may not be amended or rescinded except by a writing
signed by both parties.
INTRAWARE, INC. COMDISCO, INC.
AS LESSEE AS LESSOR
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxx
---------------------------- ----------------------------
XXXXX X. XXXX
Title: EVP/CFO Title: PRESIDENT
------------------------- -------------------------
COMDISCO VENTURES DIVISION
Date: 9/10/98 Date: SEP 11 1998
-------------------------- --------------------------
EXHIBIT 1
SUMMARY EQUIPMENT SCHEDULE
This Summary Equipment Schedule dated XXXX is executed pursuant to
Equipment Schedule No. X to the Master Lease Agreement dated XXXX between
Comdisco, Inc. ("Lessor") and XXXX ("Lessee"). All of the terms, conditions,
representations and warranties of the Master Lease Agreement and Equipment
Schedule No. X are incorporated herein and made a part hereof, and this
Summary Equipment Schedule constitutes a Schedule for the Equipment on the
attached invoices.
1. FOR PERIOD BEGINNING: AND ENDING:
2. INITIAL TERM STARTS ON: INITIAL TERM:
(Number of Rent Intervals)
3. TOTAL SUMMARY EQUIPMENT COST:
4. LEASE RATE FACTOR:
5. RENT:
6. ACCEPTANCE DOC TYPE:
