EXHIBIT 10.13
MASTER LEASE AGREEMENT
MASTER LEASE AGREEMENT (the "Master Lease") dated December 2, 1998 by and
between COMDISCO, INC. ("Lessor") and RAMP 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
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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
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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
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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 Lessee
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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 to the
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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
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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
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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
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(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.
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6.1 Net Lease. Each Summary Equipment Schedule constitutes a net
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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
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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.
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7.1 Care, Use and Maintenance. Lessee will maintain the Equipment in
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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,
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during reasonable business hours and subject to Lessee's security requirements,
will make the Equipment and its related to log and maintenance records available
to Lessor for inspection.
8. Representations and Warranties of Lessee. Lessee hereby represents,
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warrants and convenants that with respect to the Master Lease and each Schedule
executed hereunder.
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(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 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 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.
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9. Delivery and Return of Equipment. Lessee hereby assumes the full
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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
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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
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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
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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
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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, 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
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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
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of Section 13.2, Lessor will use its best efforts in accordance with its normal
business procedures (and without obligation to give any priority to such
Equipment) to mitigate Lessor's damages as described below. EXCEPT AS SET FORTH
IN THIS SECTION, LESSEE HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER CONFERRED BY
STATUTE OR OTHERWISE WHICH MAY REQUIRE LESSOR TO MITIGATE ITS DAMAGES OR MODIFY
ANY OF LESSOR'S RIGHTS OR REMEDIES STATED HEREIN. Lessor may sell, lease or
otherwise dispose of all or any part of the Equipment at a public or private
sale for cash or credit with the privilege of purchasing the Equipment. The
proceeds from any sale, lease or other disposition of the Equipment are defined
as either:
(a) if sold or otherwise disposed of, the cash proceeds less the
Fair Market Value of the Equipment at the expiration of the Initial Term less
the Default Costs; or
(b) if leased, the present value (discounted at 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 the
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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
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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
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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
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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 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
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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) terminates the Lease and
all relevant Schedules. If Lessor elects to consent to the assignment, Lessee
and its successor will sign the assignment document provided by Lessor. If
Lessor elects to terminates 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
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and Summary Equipment Schedules supersede all other oral or written agreements
or understanding 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
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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.
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14.7 Binding Nature. Each Schedule is binding upon, and inures to
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the benefit of Lessor and its assigns. LESSEE MAY NOT ASSIGN ITS RIGHTS OR
OBLIGATIONS.
14.8 Survival of Obligations. All agreements, obligations including,
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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
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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
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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
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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 Licensed
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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.
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14.14 Secretary's Certificate. Lessee will, upon execution of this
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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
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with the other by electronic means under mutually agreeable terms.
14.16 Landlord/Mortgagee Waiver. Lessee agrees to provide Lessor
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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
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agrees that Lessor shall not, but 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
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Lessee's execution of each Schedule.
Assignee - means an entity to whom Lessor has sold or assigned
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its 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
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remaining to be paid for the balance of the lease term or the Fair Market Value
of the Equipment immediately prior to the Casualty Loss. However, if a Casualty
Value Table is attached to the relevant Schedule its terms will control.
Commencement Date - is defined in each Schedule.
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Default Costs - means reasonable attorney's fees and
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remarketing costs resulting from a Lessee default or Lessor's enforcement of its
remedies.
Delivery Date - means date of delivery of Inventory Equipment
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to 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
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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
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day of the first full Rent Interval following the Commencement Date for all
items of Equipment and continuing for the number of Rent Intervals indicated on
a Schedule.
Interim Rent - means the pro-rata portion of Rent due for the
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period 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 lessor of five percent (5%) of the
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payment due or the maximum amount permitted by the law of the state where the
Equipment is located.
Licensed Products - means any software or other licensed
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products attached to the Equipment.
Like Equipment - means replacement Equipment which is lien free
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and of the same model, type, configuration and manufacture as Equipment.
Merger - means any consolidation or merger of the Lessee with
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or into 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
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than twelve (12) 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
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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
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indicated on a Schedule.
Schedule - means either an Equipment Schedule or a Licensed
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Products Schedule which incorporates all of the terms and conditions of this
Master Lease.
Secured Party - means an entity to whom Lessor has granted a
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security interest for the purpose of securing a loan.
Summary Equipment Schedule - means a certificate provided by
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Lessor 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
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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.
RAMP NETWORKS, INC. COMDISCO, INC.
as Lessee as Lessor
By: /s/ Mahesh Veenia By: /s/ Xxxxx Xxxx
_______________________ _______________________
Xxxxx X. Xxxx
Title: President & CEO Title: President
____________________ Comdisco Ventures Division
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ADDENDUM TO THE
MASTER LEASE AGREEMENT DATED AS OF DECEMBER 2, 1998
BETWEEN RAMP NETWORKS, INC., 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) 14.1., "Board Attendance"
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Delete this section in its entirety.
RAMP NETWORKS, INC. COMDISCO, INC.
as LESSEE as LESSOR
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx Xxxx
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Title: President & CEO Title: Xxxxx X. Xxxx
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Date: 12/7/98 Date: President
-------------------- Comdisco Ventures Division
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