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EXHIBIT 10.17
COMDISCO, INC.
GLOBAL MASTER RENTAL AGREEMENT
GLOBAL MASTER RENTAL AGREEMENT (the "Agreement") dated as of September
1, 1995 by and between:
COMDISCO, INC. (HEREINAFTER REFERRED TO AS "COMDISCO"), 0000 XXXXX XXXXX
XXXX, XXXXXXXX, XXXXXXXX 00000, XXX ACTING ON BEHALF OF ITSELF AND ITS
AFFILIATES AS HEREIN DESCRIBED
AND CONTINUUS SOFTWARE CORPORATION (HEREINAFTER REFERRED TO AS THE
"CUSTOMER"), ACTING ON BEHALF OF ITSELF AND ITS AFFILIATES AS HEREIN
DESCRIBED.
WHEREAS, Comdisco and its Affiliates are engaged in the rental of
equipment in various countries where Customer and its Affiliates may wish to
rent such equipment,
WHEREAS, to facilitate the transacting of rental operations between
Comdisco or an Affiliate of Comdisco and Customer or an Affiliate of the
Customer on an ongoing basis, Comdisco and the Customer wish to enter into the
present Agreement which, together with the Equipment Schedule under which each
individual rental operation is concluded, will establish the terms and
conditions applicable to such rental operation.
THEREFORE, it is agreed as follows:
1. GLOBAL MASTER RENTAL AGREEMENT
1.1 DEFINITIONS: "Affiliates of Comdisco" shall mean those
enterprises in which Comdisco owns and/or shall own at anytime after the date
hereof, directly or indirectly, the majority of the voting stock, including
without limitation all present Affiliates of Comdisco listed in Exhibit A
hereto.
"Affiliates of the Customer" shall mean those enterprises in which the
Customer, or its parent company owns and/or shall own at anytime after the date
hereof, directly or indirectly, the majority of the voting stock, or a
controlling interest, including without limitation all present Affiliates of the
Customer listed in Exhibit B hereto;
"Lessor" shall mean, with respect to any Equipment Schedule, the
Affiliate of Comdisco entering into such Equipment Schedule, or Comdisco, if
Comdisco enters into such Equipment Schedule.
"Lessee" shall mean, with respect to any Equipment Schedule, the
Affiliate of the Customer entering into such Equipment Schedule, or Customer, if
Customer enters into such Equipment Schedule.
"Rent Interval" shall mean the monthly, quarterly or such other billing
period set forth on an Equipment Schedule.
1.2 EQUIPMENT SCHEDULES: Lessor shall rent and Lessee shall take on
rent the equipment described in an Equipment Schedule executed hereunder
("Equipment") subject to the terms and conditions of this Agreement and such
Equipment Schedule. Each such Equipment Schedule shall be governed by all of the
terms and conditions of this Agreement and by such additional terms and
conditions as may be set forth in such Equipment Schedule.
Exhibit C hereto lists the countries for which Comdisco and Customer
have agreed upon the form of Equipment Schedule. Such Equipment Schedules shall
be substantially in the form attached to Exhibit C hereto. Further forms of
Equipment Schedules for use in transactions in other countries may be added by
agreement of Comdisco and Customer from time to time. The parties agree that
each local transaction will only be validly concluded if the relevant Equipment
Schedule is executed by signatories of Lessor and Lessee involved in such
transaction, and that any such Equipment Schedule may also be supplemented or
amended by special terms or conditions agreed upon by such Lessor or Lessee for
the particular transaction. The Customer shall, without notice, be jointly and
severally liable for the due performance of the obligations of its Affiliates
under all Equipment Schedules executed hereunder, including, without limitation,
all terms and conditions negotiated by its Affiliate.
2. TERM
2.1 The term of this Agreement shall commence on the date set forth
above and shall remain in force thereafter as long as any Equipment Schedule
entered into pursuant to this Agreement remains in effect.
2.2 The rental term and Lessee's rental obligations with respect to
each item of Equipment on an Equipment Schedule shall begin on the commencement
date ("Commencement Date"). The Commencement Date with respect to the type of
Equipment defined below and indicated on the applicable Equipment Schedule shall
be as follows:
a) Equipment installed and accepted by Lessee prior to the date of the
applicable Equipment Schedule ("Installed Equipment"), shall be the date Lessor
tenders payment of the Equipment purchase price;
b) Equipment supplied from Lessor's inventory ("Inventory Equipment")
shall be the date the Equipment is installed and approved for maintenance by the
manufacturer, (or an approved third party pursuant to Subsection 5.2 hereof) or
the seventh day after delivery if (i) Lessee delays the installation and
approval or (ii) the Equipment is not so approved due to defects in the
Equipment which are remediable by the manufacturer under a manufacturer's
maintenance contract but which are not remedied because Lessee has arranged for
third party maintenance pursuant to Subsection 5.2 hereof.
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c) Equipment on-order ("On-Order Equipment"), shall be the date Lessee
accepts the Equipment from the Equipment vendor, which date shall be confirmed
by Lessee to Lessor as evidenced by Lessee forwarding an Acceptance Certificate
in the form provided by Lessor, within ten (10) days following such acceptance
and which date shall in no event be later than the date the Equipment is placed
in service by Lessee.
The rental term shall continue, unless renewed in accordance with the
provisions hereof, for at least the full number of months, calendar quarters or
other Rent Interval set forth in the Equipment Schedule ("Initial Term"). The
Initial Term shall commence on the first day of the Rent Interval set forth in
the Equipment Schedule next following (i) the Commencement Date for all items of
Installed Equipment and Inventory Equipment to be rented thereunder or (ii)
Lessor's receipt of Acceptance Certificates for all items of On-Order Equipment
to be rented thereunder. On the Commencement Date the Lessee will execute and
deliver to the Lessor a letter, in a form to be specified by the Lessor, which
confirms such Commencement Date. The rental term for each Equipment Schedule
shall continue until the Equipment is returned and the Equipment Schedule is
terminated by either party upon not more than twelve (12) months nor less than
six (6) months prior written notice to the other party, provided that no such
termination shall be effective prior to the expiration of the Initial Term.
2.3 If the applicable Equipment Schedule has a single Initial Term
("Single Term"), Single Term shall be indicated on the applicable Equipment
Schedule and the terms of the following paragraph under this Subsection 2.3
shall apply to such Equipment Schedule:
All Rental Rate Factors set forth in the applicable Equipment Schedule
assume that Acceptance Certificates for all items of On-Order Equipment to be
rented thereunder will be received by Lessor no later than the outside date set
forth on the applicable Equipment Schedule ("Outside Date"). If any Acceptance
Certificates are received by Lessor after the Outside Date, Lessor may, on or
before the start of the Initial Term for all items of Equipment, adjust the
Rental Rate Factors (and, therefore, rental rates) to maintain an assumed
economic yield which Lessor would have required for a similar transaction at
such time.
2.4 If the applicable Equipment Schedule has multiple Initial Terms
("Multiple Term"), Multiple Term shall be indicated on the applicable Equipment
Schedule and the terms of the following paragraphs under this Subsection 2.4
shall apply to such Equipment Schedule:
a) Summary Equipment Schedule
Lessor shall summarize all items of Equipment for which Acceptance
Certificates have been received in the same calendar quarter into a Summary
Equipment Schedule in the form of Exhibit 1 hereto and, notwithstanding anything
to the contrary set forth in Subsection 2.2 of the Agreement, the Initial Term
shall begin the first day of the calendar quarter thereafter. Lessee agrees to
execute and return three copies of the Summary Equipment Schedules within 10
days of receipt. Each Summary Equipment Schedule shall incorporate the terms and
conditions of the Agreement and this Equipment Schedule with respect to those
items of Equipment listed in the Summary Equipment Schedule. Upon execution by
Lessor and Lessee, the Summary Equipment Schedule shall be referred to as an
Equipment Schedule and shall constitute a separate Equipment Schedule for
purposes of the Agreement, including without limitation, Section 11 thereof. The
Initial Term for Equipment listed in Acceptance Certificates received more than
10 days after the end of a calendar quarter and having an Acceptance Date in the
calendar quarter just ended, shall begin on the first day of the calendar
quarter following receipt of Acceptance Certificates.
b) If there is a default under the applicable Equipment Schedule or
there is an adverse change in Lessee's credit standing, Lessor, at its option
and upon prior written notice to Lessee, shall be relieved of its obligations to
lease Equipment under any Equipment Schedule with respect to Inventory Equipment
and Installed Equipment with a Commencement Date occurring after the date of
such notice and On-Order Equipment for which Lessor has not received an
Acceptance Certificate from Lessee prior to the date of such notice.
c) If prior to the Commencement Date for an item of Equipment the
manufacturer announces any change in comparable existing Equipment ("Comparable
Equipment") or announces the introduction of new or improved technology
("Replacement Technology Equipment"), Lessee may elect to lease the Replacement
Technology Equipment pursuant to the applicable Equipment Schedule in lieu of
the original Equipment described in such Equipment Schedule; provided, that
purchase documents with respect to the original Equipment and the Replacement
Technology Equipment are completed to Lessor's satisfaction. If Lessee elects
not to rent the Replacement Technology Equipment, then with respect to the
original Equipment with a Commencement Date occurring after the announced first
availability date stated in either of the aforementioned announcements, it is
agreed that Lessor may adjust the Rental Rate Factor in order to maintain an
assumed economic yield which Lessor would have expected had either such
announcement been made on the date of the applicable Equipment Schedule. This
paragraph 2.4(c) shall not apply to any Equipment having a Commencement Date
prior to the announced first availability date stated in either of the
aforementioned announcements.
3. RENT
3.1 Lessee shall pay to Lessor as rental for the Equipment the Rent
in an amount (i) as set forth in the applicable Equipment Schedule if the
Equipment is Inventory Equipment or (ii) equal to the Rental Rate Factor set
forth in the applicable Equipment Schedule multiplied by the "Lessor's Cost", as
hereinafter defined, if the Equipment is Installed Equipment or On-Order
Equipment. The Rent shall be paid in advance on the first day of the applicable
Rent Interval set forth in the applicable Equipment Schedule (in immediately
available funds in the local currency indicated on the Equipment Schedule) to
Lessor at its bank account, details of which are set forth in the Equipment
Schedule, or to such other person and/or at such other bank account as Lessor
may from time to time designate in writing. If the Commencement Date of any
Equipment Schedule shall be other than the first day of the applicable Rent
Interval, Lessee shall make rental payments equal to the daily prorata portion
of the Rent set forth in the Equipment Schedule for each day from and including
the Commencement Date through the last day of the applicable Rent Interval prior
to the beginning of the Initial Term ("Interim Rent"). The Rent, and Interim
Rent, if any, shall be payable without deduction or withholding on any account
whatsoever and regardless of whether an invoice has been supplied by Lessor. If
Lessee is required by law to make any such deduction or withholding, Lessee
shall pay to Lessor such additional amount as may be necessary to enable Lessor
to receive a net amount equal to the full amount which would otherwise have been
payable pursuant to any such Equipment Schedule, unless such deduction or
withholding is made by reference to Lessor's net income.
3.2 All Rental Rate Factors set forth in the applicable Equipment
Schedule shall be calculated using an interest rate based on the prevailing
rates for similar transactions with lessees of similar credit standing as of the
date of the applicable Equipment Schedule. If, on or before the start of
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the Initial Term for all items of Equipment to be leased under the applicable
Equipment Schedule, the comparable interest rate is greater, such Rental Rate
Factors may be adjusted accordingly.
3.3 Lessor's Cost shall be an amount equal to the purchase price
which Lessee would otherwise be responsible to pay for an item of Equipment if
not for this Agreement.
3.4 Lessee shall promptly pay and discharge all taxes or other
charges of whatever nature due with respect to the ownership or use of the
Equipment or the renting thereof by Lessee or the payment of Rent or other sums
payable hereunder but excluding any taxes payable by reference to Lessor's net
income.
3.5 Should Lessee fail to pay any Rent herein reserved or any sum
required to be paid by Lessee to Lessor upon the due date for payment thereof,
Lessee shall pay to Lessor additional Rent equivalent to interest thereon from
the due date until the date of payment at the rate of 3% per annum above the
then prevailing interbank offering rate provided that in no event shall such
additional Rent exceed any legal limitation.
3.6 Equipment Procurement Charges. If indicated on the applicable
Equipment Schedule, Lessor and Lessee agree that this Subsection shall apply. It
is acknowledged that certain portions of the Equipment will be delivered to
Lessee prior to the Commencement Date and that progress payments will be
required to be paid to the Equipment manufacturer prior to the Commencement Date
for any item of Equipment leased pursuant to the applicable Equipment Schedule
("Progress Payments"). Lessee agrees that with respect to the portions of the
Equipment delivered prior to the Commencement Date, all terms and conditions of
the applicable Equipment Schedule shall be applicable except the Lessee's rental
obligations, provided, however, that Lessee agrees to pay Lessor "Equipment
Procurement Charges" equal to the daily rental rate factor set forth on the
applicable Equipment Schedule multiplied by the aggregate of the Progress
Payments paid by Lessor to the manufacturer or the Lessee relating to the
Equipment for each day from the date Progress Payments are made by Lessor until
the Commencement Date. Accrued Equipment Procurement Charges shall be payable on
the first day of each applicable Rent Interval. If Lessee rejects the Equipment
prior to the Commencement Date in accordance with the terms of the purchase
agreement with the Equipment vendor and such purchase agreement is terminated as
a result of such rejection, then the applicable Equipment Schedule shall also
terminate. In such event or if Lessee is in default of the applicable Equipment
Schedule for failure to timely pay Equipment Procurement Charges, then Lessee
shall (i) reimburse Lessor for any and all amounts paid by Lessor to the
manufacturer or to the Lessee relating to the purchase of the Equipment and (ii)
pay all Equipment Procurement Charges due through the date of termination,
whereupon Lessor shall transfer to Lessee all of Lessor's interest in and to the
Equipment and under any purchase agreement relating to the applicable Equipment
Schedule.
4. USE
Lessee shall:
4.1 keep the Equipment for its sole use and in its possession
(except as provided in 11.4 below) at the address where the Equipment has been
installed or at such other address within the country of original installation
as Lessor may from time to time be notified in writing and shall use the
Equipment only for the purposes for which it was designed in a proper manner and
in accordance with any applicable statutory regulations which may from time to
time be in force and shall take such steps as are necessary to ensure that the
Equipment will be safe and without risk to health when properly used by Lessee,
its employees or other authorized users;
4.2 ensure that the Equipment is only used by trained personnel in
accordance with the recommendations of the supplier and/or manufacturer;
4.3 allow such persons as Lessor may authorize to have access to the
Equipment at reasonable times in order to inspect its state and condition and,
if required, allow Lessor to fix and/or keep affixed upon the Equipment such
name or other plates in such place and manner as Lessor shall require to
indicate the ownership of the Equipment;
4.4 protect the Equipment against seizure and indemnify Lessor
against all losses, charges, damages and expenses suffered or incurred by Lessor
by reason thereof; and
4.5 protect Lessor's title or interest in the Equipment against all
persons claiming against or through Lessee and for this purpose take any
necessary steps to prevent title in the Equipment from passing to any freeholder
or mortgagee of the premises at which the Equipment is located.
5. INSTALLATION, MAINTENANCE AND ADDITIONS
5.1 Responsibility for all costs and risks of delivery, in-transit
insurance and installation shall be as indicated in the relevant Equipment
Schedule. Notwithstanding such indication, Lessee shall be responsible for all
exceptional costs of delivery and installation including, without limitation,
the costs of special lifting and handling equipment and building alterations.
Lessee will, at the request of Lessor or its assignees, certify the date of
installation of any Equipment rented hereunder. If Lessee should have the
Equipment installed by a third party maintenance or engineering company, Lessee
assumes any and all liability for defects in the Equipment which are remediable
by manufacturer under a manufacturer's maintenance contract but which are not so
remedied because Lessee has elected to use a third party to install the
Equipment, Lessor's approval of such third party notwithstanding (see 5.2).
Lessee shall have the manufacturer or authorized third party remedy all such
defects at Lessee's expense.
5.2 Lessee shall at all times and at its own expense keep the
Equipment in good order, repair and condition (fair wear and tear excepted) and
shall enter into and maintain throughout the rental term, a contract for the
maintenance of the Equipment with the manufacturer of the Equipment, or with a
third party maintenance company as approved by Lessor provided that, if Lessee
uses a third party maintenance company, Lessee assumes any and all liability for
defects in the Equipment which are remediable by manufacturer under a
manufacturer's maintenance contract but which are not remedied because Lessee
has arranged for a third party to provide such maintenance. Upon termination of
the renting, Lessee shall provide Lessor with the manufacturer's maintenance
qualification letter and, if necessary, Lessee shall pay any costs necessary to
have the manufacturer re-certify the Equipment for maintenance eligibility.
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5.3 No additions, improvements, variations, modifications or
alterations of whatsoever kind or nature shall be made to the Equipment without
the consent in writing of Lessor (such consent not to be unreasonably withheld).
Subject to such consent, any additions to the Equipment shall first be offered
for renting by Lessor upon the terms and conditions of this Agreement and of the
relevant Equipment Schedule. If any such additions, improvements, variations,
modifications or alterations are made to the Equipment without Lessor's written
consent, then the same shall be deemed to be Lessor's property.
6. ACCEPTANCE AND WARRANTIES
6.1 Lessor will use its reasonable endeavors at the expense and
request of Lessee to extend to Lessee the benefit of any guarantees, conditions,
warranties or representations which may be given to Lessor by the manufacturer
or supplier of the Equipment or otherwise implied in favor of Lessor, provided
that such benefit shall only be extended if Lessee shall fully indemnify Lessor
against all costs, claims and expenses incurred in connection with any claim
relating to such guarantee, condition, warranty or representation.
6.2 The Equipment has been selected by Lessee with full knowledge of
the manufacturer's specifications and Lessee consequently assumes the entire
responsibility for its choice and Lessee's acceptance by certifying installation
shall be conclusive proof that the Equipment is satisfactory in every way to
Lessee.
7. LESSEE'S INDEMNITY
Throughout the rental term under any Equipment Schedule and until the
Equipment hereunder has been effectively re-delivered to Lessor, Lessee shall be
solely responsible for any loss, damage or injury to any party occasioned by the
use or possession of the Equipment or in any way relating to the Equipment.
Lessee shall indemnify and keep Lessor indemnified against all claims or
proceedings made or brought against Lessor, and all damages, losses, costs,
charges and expenses incurred by Lessor by reason of such claims or proceedings
arising out of the state, condition, presence or use of the Equipment or in any
way relating to the Equipment or arising out of the renting of the Equipment
hereunder provided that nothing in this clause shall restrict or exclude
Lessor's liability in respect of or shall entitle Lessor to be indemnified by
Lessee against any claims or proceedings in respect of any injury, death, loss
or damages caused by or resulting from the wilful default or gross negligence of
Lessor.
8. RISK OF LOSS AND INSURANCE
Throughout the rental term, unless otherwise indicated in the relevant
Equipment Schedule, the Lessee shall insure and at all times keep the Equipment
insured with reputable insurers. Lessor and Lessee agree as follows:
a) Effective upon delivery of the Equipment to Lessee and until the
Equipment is returned to Lessor, Lessee relieves Lessor of responsibility for
all risks of physical damage to or loss or destruction of the Equipment,
howsoever caused. During the continuance of the relevant Equipment Schedule,
Lessee shall, at its own expense, cause to be carried and maintained casualty
insurance with respect to each item of Equipment designated in this Equipment
Schedule in an amount at least equal at all times to the greater of (i) the
replacement value of the Equipment, or (ii) the aggregate unpaid Rent with
respect to the Equipment for the unexpired Initial Term. Lessee shall carry
public liability insurance, in each case in amounts and against risks
customarily insured against by the Lessee on similar equipment and, in any
event, in amounts and against risks comparable to those insured against by the
Lessee on equipment owned by it. All policies with respect to such insurance
shall name the Lessor as additional assured and (together with any Beneficiary)
as loss payee, and shall provide for at least 30 days' prior written notice by
the underwriter or insurance company to the Lessor in the event of cancellation
or expiration. Lessee shall furnish appropriate evidence of such insurance;
b) If any item of Equipment is lost or rendered unusable as a result of
any physical damage or destruction of such item of Equipment, Lessee shall give
to Lessor prompt notice thereof and the Agreement and the relevant Equipment
Schedule shall continue in effect without any abatement of Rent. Lessee shall
determine, within fifteen (15) days after the date of occurrence of such loss,
damage or destruction, whether such item of Equipment can be repaired. If Lessee
determines that such item of Equipment can be repaired, Lessee, at its expense,
shall cause such item of Equipment to be promptly repaired. If Lessee determines
that such item of Equipment is lost or cannot be repaired, Lessee shall promptly
notify Lessor and such Equipment shall be deemed to have suffered a "Casualty
Loss" for purposes of this Section as of the date of occurrence of such loss.
Within said 15 days, Lessee shall notify Lessor of the Equipment which has
suffered a Casualty Loss and Lessee shall, at the Lessor's option, either (i)
replace Equipment which has suffered a Casualty Loss with lien free equipment of
the same model, type and feature configuration in which case the replacement
equipment shall become the Equipment, the relevant Equipment Schedule shall
continue in full force and effect and marketable title in such Equipment shall
vest in Lessor or (ii) pay the aggregate unpaid Rent with respect to such
Equipment for the unexpired Initial Term for such Equipment ("Casualty Value").
If the Casualty Value is paid, any installment of Rent with respect to such
Equipment due prior to the date of the Casualty Loss shall remain due and
payable. After the payment of such Casualty Value and all other amounts due and
owing with respect to such Equipment, Lessee's obligation to pay further Rent
for such Equipment shall cease. Except in the case of loss or total destruction,
Lessor will be entitled to recover all Equipment for which a Casualty Value has
been paid; provided, however, that Lessee shall dispose of such Equipment for
the best price obtainable (on an "as-is, where-is," basis without representation
or warranty expressed or implied), and Lessee shall be entitled to retain all
amounts received for the Equipment up to the Casualty Value and Lessee's
reasonable costs of disposition attributable thereto, and shall remit the
excess, if any, to Lessor.
9. DEFAULT
9.1 If:
a) Lessee or Customer shall fail to pay any Rent or other sum payable
under this Agreement (and any Equipment Schedules entered into hereunder) within
fifteen (15) days of its becoming due or fail to observe or perform any of the
terms and conditions hereof or shall do or allow to be done any act or thing
which may jeopardize any of Lessor's rights in the Equipment;
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b) any distress, execution or other legal process shall be levied on or
against the Equipment or any part thereof or any premises where the same may be
or Lessee shall permit any judgment against it to remain unsatisfied for
fourteen days (14); or
c) Lessee or Customer shall enter into any liquidation, shall be
declared bankrupt or otherwise enter bankruptcy, shall call any meeting of its
creditors, or shall have any receiver or administrative receiver of all or any
of its undertakings or assets appointed, or shall be deemed unable to pay its
debts; then, in each and every such case, Lessor may at any time thereafter and
notwithstanding any subsequent acceptance by Lessor of any Rent (but without
prejudice to any other rights which Lessor may have against Lessee hereunder or
any pre-existing liability of Lessee to Lessor) by notice in writing to Lessee
forthwith and for all purposes terminate renting the Equipment hereunder and
under any Equipment Schedule executed by the Lessee and thereafter Lessee shall
no longer be in possession of the Equipment with Lessor's consent.
9.2 Upon such default, Lessee shall pay to Lessor:
a) all arrears then due by way of Rent or otherwise;
b) the costs of all repairs required as at the date of termination to
render the Equipment in good order and condition (fair wear and tear excepted);
c) all costs, charges and expenses incurred by Lessor in locating and
taking possession of the Equipment including all legal fees, costs and expenses;
and
d) as agreed compensation for Lessor's full financial loss, an amount
equal to the aggregate unpaid Rent with respect of the Equipment for the
unexpired balance of the Initial Term less a discount at the lower of the debt
rate of the Beneficiary (as defined in Subsection 11.1) at which the applicable
Equipment Schedule was financed or the rate of 2% per annum below the then
prevailing interbank offering rate, compounded quarterly, for accelerated
payment. Lessee confirms that the nature of the arrangement between it and
Lessor is such that, in computing the amount payable in such circumstances,
Lessor shall not be obliged to mitigate its loss by applying the sale proceeds
of the Equipment in reduction of such amount.
10. RETURN OF THE EQUIPMENT
At the end of the rental term of each Equipment Schedule executed
hereunder or upon the termination of the renting of the Equipment for whatever
reason, Lessee will at its own expense forthwith deinstall and deliver the
Equipment in good order and condition (fair wear and tear excepted) to Lessor at
such place as may be appointed by Lessor within the country in which it is then
installed if Comdisco has an affiliate in that country, or to the nearest
country with a Comdisco affiliate, and, upon the failure of Lessee to return the
Equipment as contemplated herein, Lessor may, without waiving Lessee's
obligations for the aforementioned expenses, repossess the Equipment at any time
and without notice and for this purpose shall be entitled freely to enter into
and upon any premises where the Equipment may be and whether the same is
occupied by or under the control of Lessee or otherwise.
11. ASSIGNMENT
11.1 Lessor shall be entitled to assign, sell or pledge in whole or
in part its rights related to any Equipment, to any Equipment Schedule and/or to
any amounts payable under any Equipment Schedule to one or more third parties
(collectively the "Beneficiary"). Lessee agrees that on receipt of written
notice from Lessor of such assignment, sale or pledge, if so instructed, Lessee
shall perform for the benefit of the Beneficiary those of its obligations under
any Equipment Schedule as are mentioned in such notice and, if so instructed,
Lessee shall pay all or part of the amounts payable under any Equipment Schedule
directly to the Beneficiary or its assignees. Lessee declares and certifies that
the Beneficiary shall be entitled to rely upon, and shall be considered a third
party beneficiary of, the following covenants and representations:
a) Lessee will not seek the performance by the Beneficiary of any of the
obligations of Lessor under this Agreement or any Equipment Schedule (unless
Lessor shall have assigned to the Beneficiary its obligations as lessor
hereunder or under any Equipment Schedule, in which case however Lessor shall
remain primarily liable for the performance of such obligations vis-a-vis
Lessee);
b) Lessee shall not agree to any modification or amendment of this
Agreement or of any Equipment Schedule assigned to the Beneficiary without the
prior written consent of the Beneficiary;
c) Lessee shall send to the Beneficiary a copy of any notice which is
required to be sent to Lessor; and
d) Lessee's obligations hereunder and under any assigned Equipment
Schedule shall not be subject to any abatement, reduction, defense, offset or
counterclaim available to Lessee for any reason whatsoever including, without
limitation, any defect in the Equipment or failure of Lessor to perform any of
its obligations hereunder or under any Equipment Schedule.
11.2 Upon receipt of notice of any assignment, sale or pledge, Lessee
agrees to execute and deliver to Lessor any document which may be required by a
Beneficiary in order to certify the rights and obligations of the parties under
this Agreement and any assigned Equipment Schedule and in order to perfect such
assignment, sale or pledge, including, without limitation:
a) an acknowledgement of receipt of, or a declaration of consent to,
such assignment, sale or pledge;
b) a certificate of Lessee's counsel in which he opines that Lessee is
validly bound by the terms of this Agreement and of any assigned Equipment
Schedule; and
c) a certificate of the delivery and acceptance of the related
Equipment.
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11.3 Lessee acknowledges that Lessor may not itself be the owner of
the Equipment rented under any Equipment Schedule and that Lessor may have
rented or leased such Equipment from a third party.
11.4 Lessee shall not sell, offer for sale, mortgage or charge the
Equipment or this Agreement or any Equipment Schedule executed hereunder nor
hold itself out as the owner of nor part with possession of the Equipment and
shall not create or allow to be created any lien or any encumbrance on the
Equipment and shall duly and punctually pay all rates and taxes, charges and
impositions payable in respect of the premises whereon any Equipment is
situated. Upon not less than sixty (60) days prior written notice to Lessor,
Lessee may subrent the Equipment to any party, or relocate the Equipment to any
location, within the country set forth in the respective Equipment Schedule,
provided that (i) any such sublessee's credit worthiness shall, in Lessor's
reasonable judgment, be equal to or better than Lessee's, and (ii) all costs of
any nature whatsoever resulting from such relocation or subrent shall be made
for the sole account of Lessee or its sublessee and any subrenting of the
Equipment shall be expressly subject and subordinate to the terms of this
Agreement and the respective Equipment Schedule. No subrenting of any Equipment
shall operate to relieve Lessee of its obligations hereunder. The Lessee hereby
grants to the Lessor the right and opportunity to submit or match the last
proposal for (i) the subrenting of the Equipment, and (ii) the financing of any
equipment which is replacing the Equipment leased pursuant to this Agreement and
any Equipment Schedule. Each of the foregoing shall be conducted in a
commercially reasonable time frame and manner.
11.5 Customer hereby agrees that its representations and obligations
under this Agreement may be assigned by Comdisco, without notice, to the Lessor
under any Equipment Schedule issued hereunder, and further assigned by such
Lessor, without notice, to the Beneficiary.
12. VALUE ADDED TAX ("VAT")
In addition to the Rent and other sums payable under this Agreement and
any Equipment Schedule, Lessee shall be responsible for and pay to Lessor any
value added tax, turnover tax, stamp tax, recording tax or similar tax thereon
at the rate in force on the due date of payment of any sums payable by Lessee
under this Agreement and any Equipment Schedule, and Lessee shall indemnify
Lessor and keep Lessor indemnified against any liability for such taxes which
may be incurred by Lessor in respect of the Equipment or its rental hereunder at
the location set forth in the Equipment Schedule. Lessee shall cooperate with
Lessor in obtaining any relevant documentation necessary to substantiate payment
of any such tax and in providing originals or certified copies thereof.
13. MISCELLANEOUS
13.1 Service of all notices under this Agreement or any Equipment
Schedule shall be sufficient if given personally or posted to the party to be
served at its address herein or in such Equipment Schedule or at such address as
the party to be served may from time to time by notice in writing inform the
other to be its address for service of notice hereunder or thereunder and, if
sent by first class post, shall be deemed to be delivered 48 hours after
posting.
13.2 It is acknowledged by the parties that the manufacturer or
supplier of the Equipment is not the agent and has no authority to act as the
agent of Lessor and that Lessor shall under no circumstances be responsible for
any warranty or representation made by any manufacturer or supplier except as
stated in this Agreement or such Equipment Schedule.
13.3 Lessor hereby excludes any conditions, warranties or
representations relating to the Equipment whether express or implied and whether
statutory or otherwise.
13.4 This Agreement shall be governed and construed for all purposes
in accordance with the law agreed upon in the applicable Equipment Schedule by
Lessor and Lessee. Comdisco and Customer hereby consent to such law.
13.5 Any payment hereunder or under any Equipment Schedule by Lessee
to Lessor shall be treated as paid on the date of its receipt by Lessor.
13.6 Neither this Agreement nor any Equipment Schedule executed
hereunder shall be varied in its terms by any oral agreement or representation
or otherwise than by an instrument in writing either of even date or subsequent
hereto or thereto executed by the respective parties or by their duly authorized
representatives.
13.7 The terms and conditions of any Equipment Schedule will
supersede those of all previous agreements either written or oral between Lessor
and Lessee relating to the Equipment.
13.8 No right or remedy herein conferred upon or reserved to Lessor
is exclusive of any other right or remedy herein or by law or equity provided or
permitted but each shall be cumulative of every right or remedy given hereunder
or hereafter existing and may be enforced currently therewith or from time to
time.
13.9 No forbearance or indulgence on the part of Lessor shown or
granted to Lessee shall in any way restrict or diminish the full rights and
powers of Lessor under this Agreement or any Equipment Schedule or shall operate
as a waiver of any breach by Lessee of any of the terms and conditions of this
Agreement.
13.10 No Equipment Schedule executed hereunder shall become binding
until accepted in writing by a representative authorized in writing on Lessor's
behalf.
13.11 The printed titles given to the clauses of this Agreement are
inserted for convenience only, do not form part of this Agreement and have no
effect upon its operation and interpretation.
13.12 Customer hereby submits to the jurisdiction of the court agreed
upon in the applicable Equipment Schedule by Lessor and Lessee regarding the
enforcement of Customer's representations and obligations hereunder with respect
to such Equipment Schedule and Customer hereby appoints the Lessee in the
applicable Equipment Schedule as the Customer's agent for service of process
with regard to the foregoing.
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13.13 In the event any one or more of the provisions of this Agreement
and/or any Equipment Schedule executed hereunder shall for any reason be held
invalid, illegal or unenforceable, the remaining provisions of this Agreement
and/or any such Equipment Schedule executed hereunder shall be unimpaired, and
the invalid, illegal or unenforceable provision shall be replaced by a mutually
acceptable valid, legal and enforceable provision, which comes closest to the
intention of the parties underlying the invalid, illegal or unenforceable
provision.
13.14 Lessee shall obtain no title to any software or other licensed
products ("Products") attached to the Equipment delivered to Lessee, and such
Products shall at all times remain the property of the owner thereof. Prior to
the legal use of any such Products, Lessee shall be responsible to obtain or
cause to be obtained a license to use such Products from the owner thereof.
13.15 Customer will, upon execution of this Agreement, and as may be
requested thereafter, provide Lessor and/or Comdisco with a secretary's
certificate of incumbency and authority and any other documents which may be
requested by Lessor and/or Comdisco.
Done in three copies this 29th day of Sept., 1995.
COMDISCO, INC. CONTINUUS SOFTWARE CORPORATION
By:_/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
Title: Executive Vice President International Title: Vice President Finance
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EXHIBIT A
To the Global Master Rental Agreement dated as of September 1, 1995 between
Comdisco, Inc. ("Comdisco") and Continuus Software Corporation ("Customer")
AFFILIATES OF COMDISCO, INC.
COMDISCO ASIA PTE LTD COMDISCO JAPAN, INC.
0 Xxxxxxx Xxx Xxxxxxxxxx Xxxxxxxx, 0xx Floor
#44-01A 2-19-8, Hatchobori, Chuo-Ku
Treasury Building J-Tokyo 104
Singapore 0106 (Japan)
COMDISCO AUSTRALIA PTY LTD COMDISCO NEDERLAND B.V.
(ACN 002 997-453) Xxxxxxxxxxxx 00, Xxxxxxx 0000
Xxxxx 18, 111 Pacific Highway NL-3606 AK Maarssen
North Sydney (The Netherlands)
XXX-Xxxxxxxxx 0000
COMPUTER DISCOUNT CORPORATION S.A.
COMDISCO HANDELSGESELLSCHAFT M.B.H. c/o Key Iberboard S.A.
Xxxxxxxxxxxxx 0/00 Xxxxxxxx Xxxxxxxx 00
X-0000 Xxxx X-00000 Xxxxxx
(Xxxxxxx) (Xxxxx)
COMDISCO BELGIUM S.A. COMDISCO SWEDEN AB
c/o KPMG c/o Advokatfirman Xxxxx
Rue Neerveld 101 - 103 Boite 3 Xxxxxxxxxxxxx 00, Xxx 0000
Xx Xxxxxxxxxx - Xxxxxx S-11187 Stockholm
B-1200 Bruxelles (Sweden)
(Belgium)
COMDISCO (SWITZERLAND) S.A.
COMDISCO CANADA LTD. Postfach 0000
Xxxxx Xxxx Xxxxx, Xxxxx Tower Xxxxxxxxxxxx 00
000 Xxx Xxxxxx, Xxxxx 0000 XX-0000 XXX
X.X. Xxx 000 (Xxxxxxxxxxx)
XXX-Xxxxxxx, Xxxxxxx X0X 0X0
(Xxxxxx) COMDISCO UNITED KINGDOM LIMITED
The Mondrian Building
COMDISCO FRANCE X.X. Xxxxxxxx Street
176 avenue Xxxxxxx de Gaulle XX-Xxxxxx, Xxxxxxxxx XX0 0XX
F-92200 Neuilly sur Seine (Great Britain)
(France)
PROMODATA S.A.
COMDISCO DEUTSCHLAND GMBH 176 avenue Xxxxxxx de Gaulle
Xxxxx-Xxxxxxx-Xxxxxxx 00 F-92200 Xxxxxxx xxx Xxxxx
X-00000 Xxxxxxxx/Xxxxxxx (Xxxxxx)
(Germany)
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EXHIBIT B
To the Global Master Rental Agreement dated as of September 1, 1995 between
Comdisco, Inc. ("Comdisco") and Continuus Software Corporation ("Customer")
AFFILIATES OF CUSTOMER
Continuus Software Limited
Xxxxx Xxxxx
Xxx Xxxx
Xxxxxxxxx, Xxxxxxxxx
Xxxxxxx XX 000 XX
Phone: 000-000-000000
Fax: 000-000-000000
Continuus Software France SARL
Immeuble Labrador
0, xxxxxx xx Xxxxxx
00000 Xxxxxxxxxxx Xxxxx
Xxxxxx
Phone: 331-644--60303
Fax: 000-000-00000
Continuus Gmbh
Address pending
Employee: Xxxxx Xxxxxxx
Phone: 00-00-0000000
Fax: 00-00-0000000
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EXHIBIT C
To the Global Master Rental Agreement ("Agreement") dated as of September 1,
1995 between Comdisco, Inc. ("Comdisco") and ContinuusSoftware Corporation
("Customer").
Effective as of the date of the Agreement, Comdisco and
Customer hereby agree, pursuant to Subsection 1.2, "Equipment
Schedules" of the Agreement that Equipment Schedules
substantially in the forms attached hereto and identified by
country name shall be used in the countries listed below which
match the country name on the attached Equipment Schedules.
Australia Japan
Austria Netherlands
Belgium **Norway
Canada *Portugal
*Denmark Singapore
*Finland Spain
France Sweden
Germany Switzerland
Hong Kong United Kingdom
*Ireland United States
*Italy
Initialled: Comdisco /s/ SH
--------
Customer
--------
* Leases will be written with Comdisco United Kingdom, as Lessor
**Leases will be written with Comdisco Nederland B.V., as Lessor
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EXHIBIT 1
SUMMARY EQUIPMENT SCHEDULE
SUMMARY EQUIPMENT SCHEDULE NO. _______ for the Period beginning ________________
and ending ________________ to the Global Master Rental Agreement dated as of
___________________________ and Equipment Schedule No. _______ thereto between
Lessor and Lessee (the "Lease").
LESSEE: LESSOR:
ADDRESS FOR NOTICES: ADDRESS FOR NOTICES: ADDRESS FOR REMITTANCES:
ATTENTION: ATTENTION: ATTENTION:
1. EQUIPMENT: As set forth in the attached Acceptance Certificates which are a
part hereof (No. of Acceptance Certificates: _______)
2. INITIAL TERM START DATE:
3. INITIAL TERM:
4. LESSOR'S COST:
5. __________ RENT:
6. LESSEE REPRESENTATIONS: The Lessee hereby represents and warrants that:
(a) It has accepted all items of Equipment listed on the attached Acceptance
Certificates as of the date set forth therein.
(b) No default or event which with the giving of notice or lapse of time, or
both, would become a default has occurred or is continuing.
GLOBAL MASTER RENTAL AGREEMENT: This Summary Equipment Schedule is issued
pursuant to the Global Master Rental Agreement and Equipment Schedule identified
above. All of the terms, conditions, representations and warranties of the
Global Master Rental Agreement and Equipment Schedule are hereby incorporated
herein and made a part hereof as if they were expressly set forth in the Summary
Equipment Schedule and this Summary Equipment Schedule constitutes a separate
lease with respect to the Equipment described herein.
CONTINUUS SOFTWARE CORPORATION COMDISCO, INC.
AS LESSEE AS LESSOR
BY:_________________________________ BY:________________________________
TITLE:______________________________ TITLE:_____________________________
DATE:_______________________________ DATE:______________________________
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ATTACHMENT TO
SUMMARY EQUIPMENT SCHEDULE_______
RENTAL BREAKDOWN BY LOCATION
Location
Number Location Rent Tax on Rental Total Rent
-------- -------- ---- ------------- ----------
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