Exhibit 10.21
MASTER LEASE AGREEMENT
MASTER LEASE AGREEMENT (the "Master Lease") dated April 2, 1996 by and
between COMDISCO, INC. ("Lessor") and Internet Travel Network ("Lessee").
IN CONSIDERATION of the mutual agreements described below, the parties
agree as follows (all capitalized terms are defined in Section 14.18):
1. Property Leased.
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Lessor leases to Lessee all of the Equipment described on each Summary
Equipment Schedule. In the event of a conflict, the terms of the applicable
Schedule prevail over this Master Lease.
2. Term.
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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 Summary Equipment 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.
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Rent is due and payable in advance on the first day of each Rent
Interval at the address specified in Lessor's invoice. Interim Rent is due and
payable when invoiced. If any payment is not made when due, Lessee will pay a
Late Charge on the overdue amount. Upon Lessee's execution of each Schedule,
Lessee will pay Lessor the Advance specified on the Schedule. The Advance will
be credited towards the final Rent payment if Lessee is not then in default. No
interest will be paid on the Advance.
4. Selection; Warranty and Disclaimer of Warranties.
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4.1 Selection. Lessee acknowledges that it has selected the
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Equipment and disclaims any reliance upon statements made by the Lessor, other
than as set forth in the Schedule.
4.2 Warranty and Disclaimer of Warranties. Lessor warrants to
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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 Summary Equipment 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 willful misconduct or negligent acts of Lessor. In
no event is Lessor responsible for special, incidental or consequential damages.
5. Title; Relocation or Sublease; and Assignment.
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5.1 Title. Lessee holds the Equipment subject and subordinate
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to the rights of the Owner, Lessor, any Assignee and any Secured Party. Lessee
authorizes Lessor, as Lessee's agent, and at Lessor's expense, 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 Summary
Equipment Schedules as appropriate. 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 the Owner, Lessor, any Assignee
and Secured Party harmless from and against any loss caused by Lessee's failure
to do so, except where such is caused by Lessor.
5.2 Relocation or Sublease. Upon prior written notice Lessee
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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) Lessee
executes sublease documents acceptable to Lessor.
No relocation or sublease will relieve Lessee from any of its
obligations under this Master Lease and the relevant Schedule.
5.3 Assignment by Lessor. The terms and conditions of each
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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
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Equipment so long as Lessee is not in default and the Secured Party continues to
receive all Rent payable under the Schedule; and
(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;
(c) Subject to and without impairment of Lessees leasehold
rights in the Equipment, Lessee holds the Equipment for the Secured Party to the
extent of the Secured Party's rights in the Equipment.
6. Net Lease; Taxes and Fees.
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6.1 Net Lease. Each Summary Equipment Schedule constitutes a
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net lease. Lessee's obligation to pay Rent and all other amounts due hereunder
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
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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 Summary Equipment Schedule against Lessor,
Lessee or the Equipment by any governmental authority (except only Federal,
state, local and franchise taxes on the capital or the net income of Lessor).
Lessor will file all personal properly tax returns for the Equipment and pay all
such property taxes due. Lessee will reimburse Lessor for property taxes within
thirty (30) days of receipt of an invoice.
7. Care, Use and Maintenance; Inspection by Lessor.
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7.1 Care, Use and Maintenance. Lessee will maintain the
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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 and considered common business practice for each item of Equipment,
Lessee will maintain in force a standard maintenance contract with the
manufacturer of the Equipment, or another party acceptable to Lessor, and will
provide Lessor with a complete copy of that contract. If Lessee has the
Equipment maintained by a party other than the manufacturer or self maintains,
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, provided re-certification is available and is
required by Lessor. The lease term will continue upon the same terms and
conditions until recertification has been obtained.
7.2 Inspection by Lessor. Upon reasonable advance notice,
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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.
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8. Representations and Warranties of Lessee. Lessee hereby
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represents, warrants and covenants that with respect to the Master Lease and
each Schedule executed hereunder:
(a) The Lessee is a corporation duly organized and validly
existing in good standing under the laws of the jurisdiction of its
incorporation, is duly qualified to do business in each jurisdiction (including
the jurisdiction where the Equipment is, or is to be, located) where its
ownership or lease of property or the conduct of its business requires such
qualification, except for where such lack of qualification would not have a
material adverse effect on the Company's business, and has full corporate power
and authority to hold properly under the Master Lease and each Schedule and to
enter into and perform its obligations under the Master Lease and each Schedule.
(b) The execution and delivery by the Lessee of the Master
Lease and each Schedule and its performance thereunder have been duly authorized
by all necessary corporate action on the part of the Lessee, and the Master
Lease and each Schedule are not inconsistent with the Lessee's Articles of
Incorporation or Bylaws, do not contravene any law or governmental rule,
regulation or order applicable to it, do not and will not contravene any
provision of, or constitute a default under, any indenture, mortgage, contract
or other instrument to which it is a party or by which it is bound, and the
Master Lease and each Schedule constitute legal, valid and binding agreements of
the Lessee, enforceable in accordance with their terms, subject to the effect of
applicable bankruptcy and other similar laws connecting the rights of creditors
generally and rules of law concerning equitable remedies.
(c) There are no actions, suits, proceedings or patent
claims pending or, to the knowledge against or affecting the Lessee in any court
or before any governmental commission, board or authority which, if adversely
determined will have a material adverse effect on the ability of the Lessee to
perform its obligations under the Master Lease and each Schedule.
(d) The Equipment is personal property and when subjected
to use by the Lessee will not be or become fixtures under applicable law.
(e) The Leasee has no material liabilities or obligations,
absolute or contingent (individually or in the aggregate), except the
liabilities and obligations of the Lessee as set forth in the Financial
Statements and liabilities and obligations which have occurred in the ordinary
course of business, and which have not been, in any case or in the aggregate,
materially adverse to Lessee's ongoing business.
(f) To the best of the Lessee's knowledge, the Lessee owns,
possesses, has access to, or can become licensed on reasonable terms under all
patents, patent applications, trademarks, trade names, inventions, franchises,
licenses, permits, computer software and copying necessary for the operations of
its business as now conducted, with no known infringement of, or conflict with,
the rights of others.
(g) All material contracts, agreements and instruments to
which the Lessee is a party are in full force and elect in all material
respects, and are valid,
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binding and enforceable by the Lessee in accordance with their respective terms,
subject to the effect of applicable bankruptcy and other similar laws affecting
the rights of creditors generally, and rules of law concerning equitable
remedies.
9. Delivery and Return of Equipment.
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Lessee hereby assumes the full expense of transportation and in-
transit insurance to Lessee's premises and indications thereat of the Equipment.
Upon termination (by expiration or otherwise) of each Summary Equipment
Schedule, Lessee shall, pursuant to Lessor's instructions and at Lessee's full
expense (including, without limitation, expenses of transportation and in-
transit insurance), return the Equipment to Lessor in the same operating order,
repair, condition and appearance as when received, less normal depreciation and
wear and tear. Lessee shall return the Equipment to Lessor at 0000 Xxxxx Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000 or at such other address within the continental
United States as directed by Lessor, provided, however, that Lessee's expense
shall be limited to the cost of returning the equipment to Lessor's address as
set forth herein. During the period subsequent to receipt of a notice under
Section 2, Lessor may demonstrate the Equipment's operation in place and Lessee
will supply any of its personnel as may reasonably be required to assist in the
demonstrations.
10. Labeling.
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Upon request, Lessee mill xxxx the Equipment indicating Lessor's
interest with labels provided by Lessor. Lessee will keep all Equipment free
from any other marking or labeling which might be interpreted as a claim of
ownership.
11. Indemnity.
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With regard to bodily injury and property damage liability only,
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 attorneys' 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 during the term of this Master Lease or until Lessee's obligations
under the Master Lease terminate. 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 the
insurance will be credited against Lessee's obligations under this Section.
12. Risk of Loss.
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Effective upon delivery and until the Equipment is resumed, 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, and will insure Lessor's
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interests regardless of any breach or violation by Lessee of any representation
warranty or condition contained in such policies and will be primary without
right to; contribution from any insurance effected by Lessor. Upon the execution
of any Schedule, the Lessee will furnish appropriate evidence of such insurance
acceptable to Lessor.
Lessee will 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 Lessee'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 with respect to that item of Equipment, Lessee's
obligation to pay further Rent for the item of Equipment will cease.
13. Default, Remedies and Mitigation.
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13.1 Default. The occurrence of any one or more of the following
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Events of Default constitutes a default under a Summary Equipment Schedule:
(a) Lessee's failure to pay Rent or other amounts payable
by Lessee when due if that failure continues for five (5) business 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 ten (10)
business 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, Summary Equipment 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
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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, cover all sums due and
accelerate and recover the present value of the remaining payment stream of all
rent due under the defaulted
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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 on 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
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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 LESSORS 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 3 percent
3%) over the U.S. Treasury Notes of comparable maturity to the term of the re-
lease) 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.
14. Additional Provisions.
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14.1 Board Attendance. One representative of Lessor will have
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the right to attend Lessee's corporate Board of Directors meetings and Lessee
will give Lessor reasonable notice in advance of any special Board of Directors
meeting, which notice will provide an agenda of the subject matter to be
discussed at such board meeting. Lessee will provide Lessor with a codified copy
of the minutes of each Board of Directors meeting within thirty (30) days
following the date of such meeting held during the term of this Master Lease.
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14.2 Financial Statements. As soon as practicable at the end of
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each month (and in any event within thirty (30) days), Lessee will provide to
Lessor the same information which Lessee provides to its Board of Directors, but
which will include not less than a monthly income statement, balance sheet and
statement of cash flows prepared in accordance with generally accepted
accounting principles, consistently applied (the "Financial Statements"). As
soon as practicable at the end of each fiscal year, Lessee will provide to
Lessor audited Financial Statements setting forth in comparative form the
corresponding figures for the fiscal year (and in any event within ninety (90)
days), and accompanied by an audit report and opinion of the independent
certified public accountants selected by Lessee. Lessee will promptly furnish to
Lessor any additional information (including, but not limited to, tax returns,
income statements, balance sheets and names of principal creditors) as Lessor
reasonably believes necessary to evaluate Lessee's continuing ability to meet
financial obligations. After the effective date of the initial registration
statement covering a public offering of Lessee's securities, the term "Financial
Statements" will be deemed to refer to one those statements required by the
Securities and Exchange Commission.
14.3 Obligation to Lease Additional Equipment. Upon notice to
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Lessee, Lessor will not be obligated to lease any Equipment which would have a
Commencement Date after said notice if: (i) Lessee is in default under this
Master Lease or any Schedule; (ii) Lessee is in default under any loan
agreement, the result of which would allow the lender or any secured party to
demand immediate payment of any material indebtedness, (iii) there is a material
adverse change in Lessee's credit dancing; or (iv) Lessor determines on
reasonable good faith) that Lessee will be unable to perform as obligations
under this Master Lease or any Schedule.
14.4 Merger and Sale Provisions. Lessee will notify Lessor of
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any proposed Merger at least sixty (60) days prior to the closing date. Lessor
may, in its discretion, either (i) consent to the assignment of the Master Lease
and all relevant Schedules to the successor entity, or (ii) terminate the Lease
and all relevant Schedules. If Lessor elects to consent to the assignment,
Lessee and its successor will sign the assignment documentation provided by
Lessor. If Lessor elects to terminate the Master Lease and all relevant
Schedules, then Lessee will pay Lessor all amount then due and owing and a
termination fee equal to the present value (discounted at 6%) of the remaining
Rent for the balance of the Initial Term(s) of all Schedules, and will return
the Equipment in accordance with Section 9. Lessor hereby consents to any Merger
in which the acquiring entity has a Xxxxx'x Bond Rating of BA3 or better or a
commercially acceptable equivalent measure of creditworthiness as reasonably
determined by Lessor.
14.5 Entire Agreement. This Master Lease and associated Schedules
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and Summary Equipment 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.
14.6 No Waiver. No action taken by Lessor or Lessor will be
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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
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this Master Lease or a Schedule will not operate or be conducted as a waiver of
any subsequent breach.
14.7 Binding Nature. Each Schedule is binding upon, and
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inures to the benefit of Lessor and its assigns. LESSEE MAY NOT ASSIGN ITS
RIGHTS OR OBLIGATIONS.
14.8 Survival of Obligations. All agreements, obligations
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including, bud not limited to those arising under Section 6.2, representations
and warranties contained in this Master Lease, any Schedule, Summary Equipment
Schedule or in any document delivered in connotation 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.
14.9 Notices. Any notice, request or other communication to
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either party by the other will be given in writing and deemed received upon the
earlier of (1) actual receipt or (2) three days after mailing if mailed postage
prepaid by regular or airmail to Lessor (to the attention of "the Comdisco
Venture Group") or Lessee, at the address set out in the Schedule, (3) one day
after it is sent by courier or (4) on the same day as sent via facsimile
transmission, provided the original is sent by personal delivery or mail by the
sending party.
14.10 Applicable Law. THIS MASTER LEASE HAS BEEN, AND EACH
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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.
14.11 Severability. If any one or more of the provisions of
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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.
14.12 Counterparts. This Master Lease and any Schedule may be
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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."
14.13 Licensed Products. Lessee will obtain no title to
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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
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confidential information of the owner, to observe all copyright restrictions,
and not to reproduce or sell the Licensed Products.
14.14 Secretary's Certificate. Lessee will, upon execution of
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this Master Lease, provide Lessor with a secretary's certificate of incumbency
and authority. Upon the execution of each Schedule with a purchase price in
excess of $1,000,000, Lessee will provide Lessor with an opinion from Lessee's
counsel in a form acceptable to Lessor regarding the representations and
warranties in Section 8.
14.15 Electronic Communications. Each of the parties may
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communicate with the other by electronic means under mutually agreeable terms.
14.16 Landlord/Mortgagee Waiver. Lessee agrees to provide
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Lessor with a Landlord/Mortgagee Waiver with respect to the Equipment. Such
waiver shall be in a form satisfactory to Lessor.
14.17 Equipment Procurement Charges/Progress Payments. Lessee
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hereby agrees that Lessor shall not, by virtue of its entering into this Master
Lease, be required to remit any payments to any manufacturer or other third
party until Lessee accepts the Equipment subject to this Master Lease.
14.18 Definitions.
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Advance - means the amount due to Lessor by Lessee upon Lessee's
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execution of each Schedule.
Assignee - means an entity to whom Lessor has sold or assigned its
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rights as owner and Lessor of Equipment.
Casualty Loss - means the irreparable loss or destruction of
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Equipment.
Casualty Value - means the greater of the aggregate Rent remaining to
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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 Date - is defined in each Schedule.
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Default Costs - means reasonable attorney's fees and remarketing costs
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resulting from a Lessee default or Lessor's enforcement of its remedies.
Delivery Date - means date of delivery of Inventory Equipment to
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Lessee's address.
Equipment - means the property described on a Summary Equipment
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Schedule and any replacement for that property required or permitted by this
Master Lease or a Schedule.
Event of Default - means the events described in Subsection 13.1.
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Fair Market Value - means the aggregate amount which would be
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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
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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.
Interim Rent - means the prorate portion of Rent due for the period
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from the Commencement Date through but not including the first day of the first
full Rent Interval included in the Initial Term.
Late Charge - means the lesser of five percent (5%) of the payment due
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or the maximum amount permitted by the law of the date where the Equipment is
located.
Licensed Products - means any software or other licensed products
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attached to the Equipment.
Like Equipment - means replacement Equipment which is lien free and of
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the same model, type, configuration and manufacture as Equipment.
Merger - means any consolidation or merger of the Lessee with or into
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any other corporation or entity, any sale or conveyance of all or substantially
all of the assets or stock of the Lessee by or to any other person or entity in
which Lessee is not the surviving entity.
Notice Period - means not less than ninety (90) days nor more than
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twelve (12) months prior to the expiration of the lease term.
Owner - means the owner of Equipment.
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Rent - the rent Lessee will pay for each item of Equipment expressed
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in a Summary Equipment 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 foil calendar month or quarter as indicated on
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a Schedule.
Schedule - means either an Equipment Schedule or a Licensed Products
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Schedule which incorporates all of the terms and conditions of this Master
Lease.
Secured Party - means an entity to whom Lessor has granted a security
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interest (for the purpose of securing a loan.
Summary Equipment Schedule - means a certificate provided by Lessor
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summarizing all of the Equipment for which Lessor has received Lessee approved
vendor invoices purchase documents and/or evidence of delivery during a calendar
quarter which will incorporate all of the terms and conditions of the related
Schedule and this Master Lease and will constitute a separate lease for the
equipment based thereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Master Lease
on or as of the day and year first above written.
INTERNET TRAVEL NETWORK COMDISCO, INC.,
as Lessee as Lessor
By:___________________________ By:____________________________
Title: Chief Financial Officer Title: Xxxxx X. Xxxx, President
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Venture Lease Division
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ADDENDUM TO THE
MASTER LEASE AGREEMENT DATED AS OF APRIL 2, 1996
BETWEEN INTERNET TRAVEL NETWORK AS LESSEE
AND COMDISCO, INC. AS LESSOR
The undersigned hereby agree that the terms and conditions of the
above-referenced Master Lease are hereby modified and amended as follows:
1) Section 3., "Rent and Payment"
----------------
In line 3, after the words, "payment is not made" insert "within five (5)
business days of".
2) Section 8., "Representations and Warranties of Lessee"
----------------------------------------
In line 9, after the word "enforceable" insert the words "against Lessee".
3) Section 11., "Indemnity"
---------
In line 9., after the words "negligent acts" insert the words "or willful
misconduct".
4) Section 13., "Default, Remedies and Mitigation"
--------------------------------
In the last line of paragraph (c), after the word "foregoing" add the words
"which, in the case of an involuntary petition or action, remains unstayed
and undismissed for at least sixty (60) days."
5) Section 13.2., "Remedies"
--------
In the last line of paragraph (d) after the word "negligence" add the words
"or misconduct".
6) 14.1., "Board Attendance"
----------------
Delete this section in its entirety.
7) Section 14.2., "Financial Statements"
--------------------
In the third to the last line, after the words "to meet financial
obligations" add the word "hereunder".
To the end of this section add the following:
"Any financial or other confidential information provided to Lessor by
Lessee hereunder shall be held in confidence by Lessor, shall not be used
for any purpose other than the lease transactions contemplated by this
Master Lease and shall not be disclosed by Lessor to any other person or
entity."
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8) Section 14.4 "Merger and Sale Provisions"
--------------------------
In the second line delete the words "sixty (60)" and replace it with
"twenty (20)".
9) Section 14.7., "Binding Nature"
--------------
To the end of the second sentence add ", except as provided in Section
14.4."
10) Section 14.13., "Licensed Products"
-----------------
To the end of last sentence add the words "except as may be permitted by
the applicable license agreement".
INTERNET TRAVEL NETWORK COMDISCO, INC.
as LESSEE as LESSOR
By:____________________________ By:_____________________________
Title: Chief Financial Officer Title: Xxxxx X. Xxxx, President
------------------------ -------------------------
Venture Lease Division
Date: 4/2/96 Date:___________________________
-------------------------
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