EXHIBIT 10.6
M A S T E R L E A S E A G R E E M E N T
MASTER LEASE AGREEMENT(the "Master Lease") dated September 30, 1997 by and
between COMDISCO, INC. ("Lessor") and Copper Mountain Networks, Inc. ("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.
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.
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.
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.
4.1 Selection. Lessee acknowledges that it has selected the 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 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.
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, 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 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 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;
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 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; Taxes and Fees.
6.1 Net Lease. Each Summary Equipment Schedule constitutes a 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 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 property
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.
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 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, 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 hereby 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
Lessee's business; and has full corporate power and authority to hold property
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
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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 affecting 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 of the Lessee, threatened 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 Lessee 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 copyrights 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 effect in all material respects, and are valid,
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.
Lessee hereby assumes the full expense of transportation and in-transit
insurance to Lessee's premises and installation 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.
Upon request, Lessee will 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.
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 that insurance will be
credited against Lessee's obligations under this Section.
12. Risk of Loss.
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, and will insure Lessor's
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 of 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.
13.1 Default. The occurrence of any one or more of the following 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 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 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 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
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(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.
14.1 Board Attendance. One representative of Lessor will have 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 certified 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.
14.2 Financial Statements. As soon as practicable at the end of 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 only those statements required by the Securities and Exchange
Commission.
14.3 Obligation to Lease Additional Equipment. Upon notice to 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 standing; or (iv) Lessor determines (in reasonable good faith) that
Lessee will be unable to perform its obligations under this Master Lease or any
Schedule.
14.4 Merger and Sale Provisions. Lessee will notify Lessor of 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 amounts 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 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 Lessee will 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.
14.7 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.
14.8 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, Summary Equipment 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.
14.9 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 (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
that the original is sent by personal delivery or mail by the sending party.
14.10 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.
14.11 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.
14.12 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."
14.13 Licensed Products. Lessee will 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.
14.14 Secretary's Certificate. Lessee will, upon execution of 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 communicate with the
other by electronic means under mutually agreeable terms.
14.16 Landlord/Mortgagee Waiver. Lessee agrees to provide 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 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.
Advance - means the amount due to Lessor by Lessee upon Lessee's execution of
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each Schedule.
Assignee - means an entity to whom Lessor has sold or assigned its rights as
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owner and Lessor of Equipment.
Casualty Loss - means the irreparable loss or destruction of Equipment.
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Casualty Value - means the greater of the aggregate Rent remaining to be paid
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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 resulting
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from a Lessee default or Lessor's enforcement of its remedies.
Delivery Date - means date of delivery of Inventory Equipment to Lessee's
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address.
Equipment - means the property described on a Summary Equipment Schedule and any
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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 obtainable in an
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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
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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 pro-rata portion of Rent due for the period from the
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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 or the
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maximum amount permitted by the law of the state where the Equipment is located.
Licensed Products - means any software or other licensed products attached to
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the Equipment.
Like Equipment - means replacement Equipment which is lien free and of the same
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model, type, configuration and manufacture as Equipment.
Merger - means any consolidation or merger of the Lessee with or into any other
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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 twelve (12)
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months prior to the expiration of the lease term.
Owner - means the owner of Equipment.
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Rent - means the rent Lessee will pay for each item of Equipment expressed 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 full calendar month or quarter as indicated on a
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Schedule.
Schedule - means either an Equipment Schedule or a Licensed Products Schedule
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which incorporates all of the terms and conditions of this Master Lease.
Secured Party - means an entity to whom Lessor has granted a security interest
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for the purpose of securing a loan.
Summary Equipment Schedule - means a certificate provided by Lessor summarizing
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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 leased thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Master Lease on or as
of the day and year first above written.
COPPER MOUNTAIN NETWORKS, INC., COMDISCO, INC.,
as Lessee as Lessor
By: /s/ XXX XXXXX By: /s/ XXXXX X. XXXX
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Title: V.P. Operations Title: XXXXX X. XXXX, PRESIDENT
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COMDISCO VENTURES DIVISION
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ADDENDUM TO THE MASTER LEASE AGREEMENT
DATED AS OF SEPTEMBER 30, 1997
BETWEEN COMDISCO, INC., AS LESSOR, AND
COPPER MOUNTAIN NETWORKS, INC., AS LESSEE
The undersigned hereby agree that the terms and conditions of the above-
referenced Master Lease Agreement are amended and modified as follows:
1. Section 5, "Title: Relocation or Sublease: and Assignment"
Subsection 5.2, second paragraph, line 8, add the word "reasonably" after
the word "documents."
Subsection 5.3, paragraph (b), first sentence, line 1, add the phrase
"After receipt of written notice of assignment from Lessor" before the
word "Lessee".
2. Section 6, "Net Lease: Taxes and Fees"
Subsection 6.2, add the following paragraph at the end of this subsection:
"Lessee shall not be liable for any taxes, fees or charges to the extent
the same result from any sale or assignment or grant of security interest
by Lessor, or to the extent any such action increases the taxes, fees or
charges that would otherwise be payable. Lessee shall have the right to
contest by proper legal proceedings any taxes levied, as agent for or in
the name of Lessor. Lessor will cooperate in any legal proceedings being
prosecuted by Lessee with regard to any taxes, but Lessee will pay the
expenses in such litigation. Lessee shall have the right to contest in good
faith and by appropriate proceeding the validity or the amount of taxes
unless such contest would adversely affect the title of the Lessor to the
Equipment or would subject it to forfeiture or sale. Lessee shall have the
rights to any refund received as a result of any such contest or proceeding
to the extent Lessee has previously reimbursed Lessor for such taxes."
3. Section 7, "Care, Use and Maintenance; Inspection by Lessor"
Last sentence, insert the following at the end thereof: "or Lessee has
exercised its option to purchase such Equipment."
4. Section 8, "Representations and Warranties of Lessee"
1
Paragraph (c), line 3, delete "if adversely determined, will" and insert
"are reasonably likely to".
5. Section 9 "Return of Equipment"
Third sentence, insert at the beginning "Provided that the Equipment is not
purchased or the term extended as permitted by the applicable Schedule,".
6. Section 11, "Indemnity"
First sentence, line 6, after the word "Equipment", delete the words
"during the term of this Master lease or until Lessee's obligations under
the Master Lease terminate" and insert "arising from acts or events during
the period from the Commencement Date of each Summary Equipment Schedule
until re-delivery of the Equipment to Lessor in accordance with the terms
of this Master Lease." Second sentence, line 3, insert "or wilful
misconduct" at the end of the sentence.
7. Section 13, "Default, Remedies and Mitigation"
Subsection 13.1:
Paragraph (b), line 1, insert "the applicable" before the word
"Schedule"
Paragraph (c), line 4, insert the following after "powers": "which
petition or appointment is not dismissed or vacated within sixty
(60) days."
Subsection 13.2, introduction, insert "and during the continuance" after
the word "occurrence."
Subsection 13.2, paragraph (d), line 5, insert "or wilful misconduct" after
"negligence"
Subsection 13.3, second sentence, line 1, insert "AND TO THE EXTENT
PERMITTED BY LAW" after the words "IN THIS SECTION".
8. Section 14, "Additional Provisions"
Subsection 14.1., "Board Attendance": Insert the words "at least one of"
after the word "attend" in the first line and insert the word "annually
during the term of the Lease or until an Initial Public Offering, whichever
is later" after the
2
word "meetings" in the second line of the first sentence. Insert the words
"and executive summaries" after the word "minutes" in the last sentence
Subsection 14.2, "Financial Statements." Delete the first sentence in its
entirety and replace it with the following:
"As soon as practicable at the end of each month (and in any event within
thirty (30) days), Lessee will provide to Lessor a monthly income statement
and balance sheet prepared in accordance with generally accepted accounting
principles, consistently applied (except that such financials will not
include footnotes required by generally accepted accounting principles)
(the "Financial Statements")."
In the second sentence, line 8, delete "ninety (90)" replace with "one
hundred twenty (120)"
Subsection 14.4, "Merger and Sale Provisions." In line 2, delete "sixty
(60)" and replace with "thirty (30)". In line 10 after the words "with
Section 9" add "or purchase the Equipment for a mutually agreeable price,
at Lessee's option." To the end of this Section, add the following:
"Notwithstanding the foregoing, Lessor hereby consents to any Merger
in which the surviving entity has, immediately after the Merger, a net
worth equal to or greater than ten (10) times the aggregate remaining
rentals under this Master Lease."
Subsection 14.7, second sentence, add the following at the end thereof:
"except any permitted assignment in accordance with the terms of Subsection
14.4 of this Master Lease."
Subsection 14.9, line 5, insert "applicable" before "Schedule".
Subsection 14.10, change "Illinois" to "California" in lines 2 and 4 and in
line 6, delete "ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE" and insert
"CALIFORNIA COMMERCIAL CODE SECTIONS 10508-10522, AS AMENDED"
Subsection 14.14, line 4, insert "reasonably" before "acceptable" and in line
5, insert "(a), (b) and (c)" after "8".
Subsection 14.18, "Definitions":
"Casualty Value", line 1, insert "present value of the" after the words
--------------
"greater of the" and line 2, insert "discounted at a rate of 6% per annum"
after the word "term".
3
"Merger", line 4, following the word "entity", add the words ", provided
------
that no such transactions shall constitute a Merger unless the Lessee's
stockholders, as constituted, immediately before any such transaction, hold
less than fifty percent (50%) of the outstanding voting securities of the
Lessee immediately following such transaction".
COPPER MOUNTAIN NETWORKS, INC. COMDISCO, INC.
as LESSEE as LESSOR
By: /s/ Xxx Xxxxx By: /s/ Xxxxx X. Xxxx, Pesident
----------------------------- ------------------------------
Xxxxx X. Xxxx, Pesident
Title: Vice President Operations Title: Comdisco Ventures Division
------------------------- ----------------------------
Date: 9/30/97 Date: 9/30/1997
------------------------ ----------------------------
4
EQUIPMENT SCHEDULE VL-1
DATED AS OF September 30, 1997
TO MASTER LEASE AGREEMENT
DATED AS OF September 30, 1997 (THE "MASTER LEASE")
LESSEE: COPPER MOUNTAIN NETWORKS, INC. LESSOR: COMDISCO, INC.
Admin. Contact/Phone No.: Address for all Notices:
------------------------ -----------------------
___________________________ 0000 Xxxxx Xxxxx Xxxx
Phone: (000) 000-0000 Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000 Attn.: Venture Group
Address for Notices:
-------------------
0000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Central Billing Location: Rent Interval: Monthly
------------------------ -------------
same as above
Attn.:
Lessee Reference No.:---------------
(24 digits maximum) Interim Rent: None
-------------
Location of Equipment: Initial Term: 48 months
---------------------- -------------
same as above (Number of Rent Intervals)
Lease Rate Factor: 2.403%
------------------
Attn.:
EQUIPMENT (as defined below): Advance: None*
--------
*Lessee's commitment fee of $1,500.00 shall be applied towards the first Rent
payment due hereunder.
Equipment specifically approved by Lessor, which shall be delivered to and
accepted by Lessee during the period September 30, 1997 through December 30,
1998 ("Equipment Delivery Period"), for which Lessor receives vendor invoices
approved for payment, up to an aggregate purchase price of $1,225,000.00
("Commitment Amount") available in two (2) phases, Phase I in the amount of
$700,000.00 which shall be available immediately, Phase II, in the amount of
$525,000.00 shall be contingent upon Lessor closing a round of equity financing
in the minimum amount of $4,000,000, 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 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 30, 1997 *. 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 5/1/97 and 9/30/97 100%
Between 3/31/97 and 5/30/97 80%
Between 12/30/97 and 3/30/97 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, accepted and approved 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. Notwithstanding the foregoing, if the
Commencement Date is on the first business day of the calendar month, the
Initial Term will commence on the first day of such month.
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 or extend the term of the 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 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
the 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.
In any event, Lessee may purchase the Equipment on the applicable Summary
Equipment Schedule at any time after the expiration of the Initial Term of the
Summary Equipment Schedule by paying a purchase price not to exceed 12.5% of the
Equipment cost.
5. Technology Exchange Option
If Lessee is not in default, and there is no material adverse change in
Lessee's credit, on or after the expiration of the 12th month of any Summary
Equipment Schedule, Lessee shall have the option once during the term of any
Summary Equipment Schedule, to replace any of the Equipment subject to such
summary Equipment Schedule with new technology equipment ("New Technology
Equipment") utilizing the following guidelines:
A. Equipment being replaced with New Technology Equipment shall have an
original cost equal to or greater than $20,000 and be comprised of full
configurations of equipment.
B. This technology Exchange Option shall be limited to a maximum in the
aggregate of fifty percent (50%) of the original equipment cost and shall not
apply to software.
C. The cost of the New Technology Equipment must be equal to or greater than
the original equipment cost of the replaced equipment, but in no event shall
exceed 150% of the original equipment cost.
D. The remaining lease payments applicable to the equipment being replaced by
the New Technology Equipment will be discounted to present value at 6%.
The wholesale market value of the equipment being replaced will be established
by Comdisco based upon then current market conditions. Upon the return of the
replaced equipment, the wholesale price will be deducted from the present value
of the remaining rentals and the differential will be added to the cost of the
New Technology Equipment in calculating the new rental. The lease for the New
Technology Equipment will contain terms and conditions substantially similar to
those for the replaced equipment and will have an Initial Term not less than the
balance of the remaining Initial Term for the replaced equipment.
6. Option Amount
So long as no Event of Default shall have occurred and is continuing and
upon Lessee's request, subject to final review by Lessor, Lessor agrees to
provide to Lessee an additional $1,000,000.00 of Equipment upon rates and terms
to be negotiated.
7. Special Terms
The terms and conditions of the Lease as they pertain to this Schedule are
hereby modified and amended as follows:
"Section 3 Rent and Payment", second sentence, line 1, delete "Interim Rent
is due and payable when invoiced" and revise "if" to read "If".
Phase II Financing: Availability of funds under Phase II is contingent
upon issuance by Lessee of a Warrant Agreement in favor of Lessor
substantially in the form attached hereto as Exhibit 2 ("Warrant
Agreement"). The Warrant Agreement will xxxxx Xxxxxx as Warrantholder the
right to purchase that number of fully paid and non-assessable shares of
the Lessee's Preferred Stock equal to $30,000.00 divided by the "Exercise
Price" as defined below. The Warrant Agreement shall be issued upon the
earlier of (i) the closing of the next round of equity financing where the
Lessee raises a minimum of $4,000,000.00 ("Next Round"), or (ii) April 30,
1998. In the event the closing of the Next Round occurs prior to April 30,
1998, the Warrant Agreement shall be for Series C Preferred Stock and the
Exercise Price will be the Next Round closing price per share. In the
event the Next Round does not close on or prior to April 30, 1998, the
Warrant Agreement shall be exercisable for Series B Preferred Stock at an
Exercise Price of $3.39 per share.
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.
COPPER MOUNTAIN NETWORKS, INC. COMDISCO, INC.
AS LESSEE AS LESSOR
BY: /s/ Xxx Xxxxx BY: /s/ Xxxxx X. Xxxx
----------------------- ------------------------------
TITLE: V.P. Operations TITLE: XXXXX X. XXXX, PRESIDENT
-------------------- ---------------------------
COMDISCO VENTURES DIVISION
DATE: 9-30-97 DATE: 9-30-97
-------------------- ----------------------------
EQUIPMENT SCHEDULE VL-2
DATED AS OF September 30, 1997
TO MASTER LEASE AGREEMENT
DATED AS OF September 30, 1997 (THE "MASTER LEASE")
LESSEE: COPPER MOUNTAIN NETWORKS, INC. LESSOR: COMDISCO, INC.
Admin. Contact/Phone No.: Address for all Notices:
------------------------ -----------------------
_________________________ 0000 Xxxxx Xxxxx Xxxx
Phone: (000) 000-0000 Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000 Attn.: Venture Group
Address for Notices:
-------------------
0000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Central Billing Location: Rent Interval: Monthly
------------------------ -------------
same as above
Attn.:
Interim Rent: None
------------
Lessee Reference No.: _________________
(24 digits maximum)
Location of Equipment: Initial Term: 48 months
--------------------- ------------
same as above (Number of Rent Intervals)
Lease Rate Factor: 2.403%
-----------------
Attn.:
EQUIPMENT (as defined below): Advance: $ None
-------
Software and tenant improvements specifically approved by Lessor, which shall be
delivered to and accepted by Lessee during the period September 30, 1997 through
December 30, 1997 ("Equipment Delivery Period") for which Lessor receives vendor
invoices approved for payment, up to an aggregate purchase price of $525,000.00
("Commitment Amount") available in two (2) phases, Phase I in the amount of
$300,000.00 which shall be available immediately, Phase II, in the amount of
$225,000.00 shall be contingent upon Lessor closing a round of equity financing
in the minimum amount of $4,000,000,; excluding custom use equipment,
installation costs and delivery costs, rolling stock, special tooling, hand held
items, molds and fungible items.
1
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 30, 1997*. 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 5/1/97 and 9/30/97 100%
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, accepted, and approved 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. Notwithstanding the foregoing, if the
Commencement
2
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.
(b) Phase II Financing
Availability of funds under Phase II is contingent upon issuance by Lessee
of a Warrant Agreement in favor of Lessor substantially in the form
attached hereto as Exhibit 2 ("Warrant Agreement"). The Warrant Agreement
will xxxxx Xxxxxx as Warrantholder the right to purchase that number of
fully paid and non-assessable shares of the Lessee's Preferred Stock equal
to $30,000.00 divided by the "Exercise Price" as defined below. The
Warrant Agreement shall be issued upon the earlier of (i) the closing of
the next round of equity financing where the Lessee raises a minimum of
$4,000,000.00 ("Next Round"), or (ii) April 30, 1998. In the event the
closing of the Next Round occurs prior to April 30, 1998, the Warrant
Agreement shall be for Series C Preferred Stock and the Exercise Price will
be the Next Round closing price per share. In the event the Next Round
does not close on or prior to April 30, 1998, the Warrant Agreement shall
be exercisable for Series B Preferred Stock at an Exercise Price of $3.39
per share.
(c) "Section 3 Rent & Payment," second sentence, line 1, delete "Interim
Rent is due & payable when Invoiced" and revise "if" to read "If
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.
COPPER MOUNTAIN NETWORKS, INC. COMDISCO, INC.
as Lessee as Lessor
By: /s/ Xxx Xxxxx By: /s/ Xxxxx X. Xxxx
----------------------------------- --------------------------------------
Title: V.P. Operations Title: XXXXX X. XXXX, PRESIDENT
-------------------------------- ----------------------------------
COMDISCO VENTURES DIVISION
Date: 9-30-97 Date: 9-30-97
-------------------------------- -----------------------------------
3
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:
-------------------
4
[LETTERHEAD OF COMDISCO]
FEDERAL EXPRESS
December 19, 1997
Mr. Xxxx Xxxx
Copper Mountain Networks, Inc.
0000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Re: Replacement Page for VL-2
Dear Xxxx,
Per your conversations with Xxx Xxxxxxx, enclosed please find a replacement page
one for the Equipment Schedule VL-2. This page changes the error in the
Equipment Delivery Date from "December 30, 1997" to "December 30, 1998". Please
discard the prior page one and replace it with this new page.
I apologize for any inconvenience this may have caused. If you have any
questions regarding the enclosed, please feel free to call me at (000) 000-0000.
Sincerely,
/s/ Xxxxxxxxx Xxxx
Xxxxxxxxx Xxxx
Portfolio Manager
Attachment
cc: Xxx Xxxxxxx (w/attachment)
EQUIPMENT SCHEDULE VL-2
DATED AS OF September 30, 1997
TO MASTER LEASE AGREEMENT
DATED AS OF September 30, 1997 (THE "MASTER LEASE")
LESSEE: COPPER MOUNTAIN NETWORKS, INC. LESSOR: COMDISCO, INC.
Admin. Contact/Phone No.: Address for all Notices:
------------------------ -----------------------
_________________________ 0000 Xxxxx Xxxxx Xxxx
Phone: (000) 000-0000 Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000 Attn.: Venture Group
Address for Notices:
-------------------
0000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Central Billing Location: Rent Interval: Monthly
------------------------ -------------
same as above
Attn.:
Interim Rent: None
------------
Lessee Reference No.: _________________
(24 digits maximum)
Location of Equipment: Initial Term: 48 months
--------------------- ------------
same as above (Number of Rent Intervals)
Lease Rate Factor: 2.403%
-----------------
Attn.:
EQUIPMENT (as defined below): Advance: $ None
-------
Software and tenant improvements specifically approved by Lessor, which
shall be delivered to and accepted by Lessee during the period September 30,
1997 through December 30, 1998 ("Equipment Delivery Period") for which Lessor
receives vendor invoices approved for payment, up to an aggregate purchase price
of $525,000.00 ("Commitment Amount") available in two (2) phases, Phase I in the
amount of $300,000.00 which shall be available immediately, Phase II, in the
amount of $225,000.00 shall be contingent upon Lessor closing a round of equity
financing in the minimum amount of $4,000,000,; excluding custom use equipment,
installation costs and delivery costs, rolling stock, special tooling, hand held
items, molds and fungible items.
1
