EXHIBIT 10.9
MASTER LEASE AGREEMENT
This Master Lease Agreement ("Master Agreement"), dated as of Mar 01, 1999
and referred to as Lease Number 0000003 is entered into by and between Silicon
Valley Bank ("Lessor"), with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Digital Insight Corporation, a
___________________ ("Lessee"), with its principal place of business at ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
DEFINITIONS. As used herein, all terms shall have the meanings set forth below.
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"ACCEPTANCE CERTIFICATE" means the form of certificate provided by Lessor
to evidence Lessee's acceptance of the Equipment.
"ACCEPTANCE DATE" the date the Lessee signs and delivers to Lessor the
Acceptance Certificate.
"APPLICABLE TERM" the Initial Term and any renewal or extension thereof.
"ASSIGNEE" means any party to whom Lessor assigns Lessor's rights to any
Lease.
"CASUALTY" means any event upon which any Equipment is condemned, taken,
lost, destroyed, stolen or damaged beyond repair.
"CLAIMS" means any and all claims, actions, suits, proceedings, costs,
expenses (including court costs and reasonable attorneys' fees), damages,
obligations, penalties, injuries and liabilities, including actions based on
Lessor's strict liability in tort.
"COMMITMENT AMOUNT" has the meaning set forth in the Schedule.
"CUT-OFF DATE" means the date specified in Section 7 of the Schedule.
"DEFAULT" means any of the events of default described in Section 16 of
this Master Agreement.
"EQUIPMENT" means the items of Equipment leased under each Schedule.
"EQUIPMENT LOCATION" means the location of the Equipment specified in each
Schedule.
"FIRST PAYMENT DATE" has the meaning set forth in the Schedule.
"IMPOSITION" means each license fee, assessment, and sales, use, property,
excise and other tax.
"INTERIM RENT" has the meaning, if any, set forth in Section 5 of the
Schedule.
"INITIAL TERM" means the total monthly, quarterly or other term of each
Lease, as specified in the Schedule.
"LEASE" means each Schedule.
"LICENSE" means collectively, if the Equipment includes any software, a
license identical to that held by Lessee relating to the use of any software,
technical information, confidential business information and other
documentation.
"MATERIAL AGREEMENT" means collectively this Master Agreement, any Lease,
any Transaction Document or any other agreement between Lessee and Lessor, or
any material agreement between Lessee and any third party, specifically
including, without limitation, any agreement or agreements between Lessee and
any third party which in the aggregate give the third party the right, whether
or not exercised, to accelerate any indebtedness exceeding $100,000.
"ORIGINAL" means the single counterpart of the Schedule, including Rider 1
attached thereto and incorporated therein by reference, marked "Original".
"PURCHASE DOCUMENTS" means collectively any purchase order, contract or
other documents Lessee has approved or entered into with Supplier.
"RENT" means the amounts payable by Lessee to Lessor for the Equipment.
"RIDER 1" means the rider marked "Rider 1" which is attached to and
incorporated within each Schedule.
"SCHEDULE" means each schedule containing the specific terms of each
individual lease.
"STIPULATED LOSS VALUE" means the stipulated loss value of the Equipment as
specified in Rider 1 to the Schedule.
"SUPPLIER" means the seller of the Equipment.
"TOTAL COST" means the Equipment acquisition cost including such shipping,
delivery, installation and other charges as Lessor shall have approved set forth
in Section 3 of the Schedule, as adjusted pursuant to Section 6 of this Master
Agreement.
"TAX BENEFITS" means collectively certain deductions, credits, and other
tax benefits as are provided in the Internal Revenue Code of 1986, as amended,
including without limitation, accelerated depreciation and interest deductions
to which Lessor may be entitled.
"TRANSACTION DOCUMENTS" means collectively this Master Agreement, all
Leases and all other related instruments or documents executed and/or delivered
hereunder or in connection herewith.
1. LEASE OF EQUIPMENT. This Master Agreement sets forth the general terms
and conditions which apply to the lease of equipment from Lessor to Lessee. The
specific terms of each individual lease are set forth in a separate Schedule,
including the Equipment leased under the applicable Schedule. Each Schedule
constitutes a separate and distinct Lease, enforceable according to its terms.
In the event of any conflict between the terms of this Master Agreement and any
related Schedule, the provisions of the applicable
Schedule shall govern. The parties agree that each Schedule incorporates this
Master Agreement by reference by listing the Lease Number (as specified above)
on the Schedule. A Lease shall not become effective until accepted by Lessor.
2. TERM. This Master Agreement shall commence upon the execution hereof
by both parties, and
shall continue until the full performance of all terms hereunder. The Initial
Term shall be as specified in each Schedule. The Applicable Term shall be
automatically extended for successive one-month periods unless either party
gives the other party ninety days' prior written notice that it intends to
terminate the Lease at the end of the Applicable Term.
3. ACCEPTANCE. The Equipment is unconditionally accepted under the Lease
on the Acceptance Date. Lessee shall accept the Equipment as soon as it is
delivered or, if acceptance requirements are specified in the applicable
Purchase Documents, as soon as such requirements are met. Upon the execution of
the Acceptance Certificate, Lessee shall promptly deliver it to Lessor.
4. RENT; NON-CANCELLABLE NET LEASE. As Rent for the Equipment, Lessee
agrees to pay the amounts specified in the Schedule. Lessee acknowledges and
agrees that all Leases hereunder are non-cancellable net Leases, and Lessee
agrees that its obligation to pay Rent and all other amounts when due is
unconditional. Lessee is not entitled to ▇▇▇▇▇ or reduce rent or any other
amounts due, or to set off any charges against those amounts. Lessee is not
entitled to claim or assert any recoupments, cross-claims, counterclaims or any
other defenses to any rent payments or other amounts due hereunder, whether
those defenses arise out of claims by Lessee against Lessor, Supplier, this
Master Agreement, any Schedule or otherwise. If the Equipment is not properly
installed, does not operate as represented or warranted by Supplier or is
unsatisfactory for any reason whatsoever, Lessee shall make any claim or account
thereof solely against Supplier and shall nevertheless pay all sums payable
under any Lease. Lessee hereby waives any such claims against Lessor and any
Assignee.
5. ASSIGNMENT OF PURCHASE DOCUMENTS. Lessee assigns to Lessor all of
Lessee's right, title and interest in and to the Equipment described in the
Purchase Documents and in the Schedule. This assignment is an assignment of
rights only, and Lessee shall remain liable for all obligations under the
Purchase Documents, except that Lessor shall pay for the Equipment within 30
days of the Acceptance Date or as otherwise agreed by Lessor in writing. If
Lessee has not entered into Purchase Documents for such Equipment, Lessee
authorizes Lessor to act as Lessee's agent to execute such Purchase Documents.
Lessee also represents and warrants that it has received and approved a copy of
the Purchase Documents, or has been advised by Lessor of (a) the name of the
Supplier of the Equipment, (b) that Lessee may have rights under such Supplier's
Purchase Documents, and (c) that Lessee may contact the Supplier for information
on such rights. In addition, Lessee shall deliver to Lessor a document
acceptable to Lessor whereby Supplier acknowledges and provides any consent
required by Lessor or otherwise necessary to such assignment. If the Equipment
includes any software, Supplier shall agree in such acknowledgment and consent
that upon the return of the Equipment to Lessor the Supplier will either ▇▇▇▇▇
▇▇▇▇▇▇ a License and permit Lessor to assign such License to any subsequent end-
user of the Equipment, or grant any such subsequent end-user such a License, but
at no additional charge other than any regularly scheduled fee or charge
otherwise payable by Lessee; provided that Lessee shall at all times remain
liable to Supplier as the licensee under its license, and Lessor shall not have
any obligation thereunder unless and until such license is provided to Lessor in
accordance with these provisions. Lessor shall have no obligation or liability
with respect to Lessee's, or any subsequent third-party licensee's, compliance
under the applicable license. In addition, with respect to any such software,
Supplier shall agree that it will not terminate Lessee's license thereof without
first providing 90 days' prior written notice to Lessor of any intended
termination and providing Lessor the right to cure such breach by Lessee of its
license as gave rise to such notice of intended termination. Supplier shall also
agree to provide all software upgrades and modifications during the Applicable
Term to Lessee, or Lessor or other subsequent licensee, on the same basis as
offered to Supplier's other commercial customers. Lessee agrees that neither
Supplier nor any salesperson or other employee or representative of Supplier is
an agent of Lessor, nor is any such person authorized to waive or alter any
terms of this Master Agreement or any Lease.
6. ADJUSTMENTS. The Total Cost and Rent payment set forth in each
Schedule are estimates, and if the final invoice from the Supplier specifies a
Total Cost (including delivery, installation, taxes and other charges) that is
more or less than such estimated Total Cost, Lessee hereby authorizes Lessor to
adjust accordingly the Total Cost and Rent payment on the applicable Schedule.
All references in this Agreement and in any Schedule to Total Cost and Rent
payment shall mean the estimates thereof specified in the applicable Schedule,
as adjusted pursuant to this Section 6.
7. EQUIPMENT RETURN REQUIREMENTS. On or before the termination of a
Lease, Lessee shall pack the Equipment in accordance with the manufacturer's
guidelines and deliver such Equipment (along with all operating manuals) to
Lessor at any destination within the continental United States designated by
Lessor. All dismantling, packaging, transportation, in-transit insurance and
shipping charges shall be borne by Lessee. All Equipment shall be returned to
Lessor in the same condition and working order as when delivered to Lessee,
reasonable wear and tear excepted, and, if applicable, shall be certifiable for
maintenance by the manufacturer at its standard rates.
8. EQUIPMENT USE AND MAINTENANCE. Lessee is solely responsible for the
selection, installation, operation and maintenance of the Equipment and all
costs related thereto, including shipping charges. Lessee shall at all times
operate and maintain the Equipment in good operating order, repair, condition
and appearance, normal wear and tear excepted, and in
accordance with its manufacturer's specifications and recommendations. On
reasonable prior notice to Lessee, Lessor and Lessor's agents shall have the
right, during Lessee's business hours, to enter the premises where the Equipment
is located for the purpose of inspecting the Equipment and observing its use.
Lessee shall, at its expense, affix and maintain in a prominent position on each
item of Equipment any tags or identifying labels provided by Lessor to indicate
Lessor's ownership of the Equipment. Lessee shall, at its expense, enter into,
maintain and enforce at all times a maintenance agreement to service and
maintain the Equipment, upon terms and with a provider acceptable to Lessor.
9. EQUIPMENT OWNERSHIP; ATTACHMENTS; LOCATION. Lessor is the sole owner
of the Equipment and has sole title thereto. Lessee covenants that it will not
pledge or encumber the Equipment or Lessor's interest in the Equipment in any
manner whatsoever nor permit any liens to be attached thereto, other than liens
arising directly through Lessor. Lessee shall not make any representation to any
third-party inconsistent with Lessor's sole ownership of the Equipment. The
Equipment shall remain Lessor's personal property whether or not affixed to
realty and shall not become or be made to become a part of any real property on
which it is placed without Lessor's prior written consent. All additions,
attachments and accessories placed on the Equipment or repairs made to the
Equipment become a part thereof and Lessor's property. Lessee shall maintain the
Equipment so that it may be removed from any building in which it is placed
without damage thereto. The Equipment will be located at the Equipment Location,
and Lessee shall not move it and shall not permit it to be moved without the
prior written consent of Lessor.
10. INSURANCE. Lessee agrees to keep the Equipment insured at Lessee's
expense against all risks of loss, including theft or damage from any cause
whatsoever. Lessee agrees that such insurance shall name Lessor as a loss payee,
with a full waiver of warranties (Form BFU-438 or comparable) and provide
coverage not less than the greater of the Stipulated Loss Value of the Equipment
and the then-current fair market value of the Equipment. Lessee also agrees that
it shall carry public liability insurance in an amount consistent with prudent
business practices and customary to Lessee's industry. Each policy shall provide
that the insurance cannot be canceled without at least thirty (30) days prior
written notice to Lessor. Upon request by Lessor, Lessee agrees to furnish proof
of insurance coverage, including a certificate of insurance and a copy of the
policy. If Lessee fails to provide Lessor with such evidence, then Lessor will
have the right, but not the obligation, to have such insurance protecting Lessor
placed at Lessee's expense. Lessee's expense shall include a full premium paid
for such insurance and any customary charges, costs or fees of Lessor. Lessee
agrees to pay such amounts in equal installments allocated to each Rent payment
(plus interest on such amounts at the lesser of 1.5% per month or the maximum
rate allowable under applicable law). Lessee hereby appoints Lessor as its
attorney-in-fact while a Default exists to make any claim, receive payment or
execute or endorse all documents, checks or drafts for loss or damage or return
of any premium under such insurance and to apply any such amounts to satisfy
Lessee's obligations under this Master Agreement or any Lease.
11. RISK OF LOSS. In the event of any Casualty, on the next Rent payment
date Lessee shall pay Lessor the Stipulated Loss Value with respect to the item
of Equipment suffering the Casualty. Upon Lessor's full receipt of such
Stipulated Loss Value, the applicable Schedule shall terminate, and except as
provided in Section 22, Lessee shall be relieved of all obligations under the
applicable Schedule, and Lessor shall transfer all its interest in the Equipment
to Lessee "AS IS, WHERE IS," and without any warranty, express or implied from
Lessor, other than the absence of any liens or claims by, through, or under
Lessor. In the event of a partial destruction of or repairable damage to any
Equipment, the Lease shall continue with respect to such Equipment and Lease
shall at its expense promptly cause such Equipment to be repaired to a condition
acceptable to Lessor. There shall be no abatement of Rent in any such event.
Lessee shall immediately notify Lessor of any Casualty or partial destruction or
damage to any Equipment.
12. TAXES. On behalf of Lessee Lessor shall file and pay all Impositions
now or hereafter imposed or assessed by any foreign, federal, state or local
government upon the purchase, ownership, delivery, installation, leasing,
rental, use or sale of the Equipment, or the Rent or other charges payable
hereunder, whether assessed on Lessor or Lessee. As additional Rent, Lessee
shall reimburse Lessor for all Impositions, together with any penalties or
interest in connection therewith attributable to Lessee's acts or failure to
act, excepting only any Imposition on or measured by the net income of Lessor.
13. INDEMNITY. Lessee shall indemnify, defend and hold harmless Lessor,
its agents and assignees, from and against any and all Claims, arising, directly
or indirectly, out of or connected with any matter involving this Master
Agreement, the Equipment or any Lease, including but not limited to: (a) the
selection, manufacture, purchase, acceptance, rejection, ownership, delivery,
lease, possession, maintenance, use, condition, return or operation of the
Equipment; (b) any breach by Lessee of any representation, warranty or covenant
hereunder or any other Transaction Document; (c) any latent defects or other
defects in any Equipment, whether or not discoverable by Lessor or by Lessee;
(d) any patent, trademark or copyright infringement; and (e) the condition of
any Equipment arising or existing during Lessee's use. Notwithstanding the
foregoing, Lessee shall have no indemnity obligation with respect to any Claims
which arise solely out of the gross negligence or willful misconduct of Lessor.
14. DISCLAIMER OF WARRANTIES AND LESSEE WAIVERs. LESSEE LEASES THE
EQUIPMENT FROM LESSOR "AS IS" AND "WHERE IS." LESSEE HEREBY AGREES THAT: EXCEPT
AS TO QUIET ENJOYMENT, LESSOR MAKES ABSOLUTELY NO WARRANTIES, EXPRESS OR IMPLIED
TO LESSEE; LESSOR SHALL NOT BE LIABLE FOR ANY FAILURE OF ANY EQUIPMENT OR ANY
DELAY IN ITS DELIVERY OR INSTALLATION OR ANY BREACH OF ANY WARRANTY THAT SELLER
MAY HAVE MADE; LESSEE HAS SELECTED ALL EQUIPMENT WITHOUT LESSOR'S ASSISTANCE;
LESSOR IS NOT A MANUFACTURER OF ANY OF THE EQUIPMENT; LESSOR SHALL HAVE NO
LIABILITY TO LESSEE, LESSEE'S CUSTOMERS, OR ANY THIRD PARTIES FOR ANY DIRECT,
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR ANY
SCHEDULE OR CONCERNING ANY EQUIPMENT, OR FOR ANY DAMAGES BASED ON STRICT OR
ABSOLUTE TORT LIABILITY OR LESSOR'S NEGLIGENCE; LESSEE'S SOLE RECOURSE FOR ANY
AND ALL CLAIMS AND WARRANTIES RELATING TO THE EQUIPMENT SHALL BE AGAINST SELLER.
Lessor hereby assigns to Lessee for the Applicable Term the right to enforce,
provided that no Default then exists under this Master Agreement or any Lease
and such enforcement is pursued in Lessee's name, any representations,
warranties and agreements made by the Supplier pursuant to the Purchase
Documents, and Lessee may retain any recovery resulting from any such
enforcement efforts. LESSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED
UPON A LESSEE BY ARTICLE 2A (CALIFORNIA COMMERCIAL CODE DIVISION 10) OF THE
UNIFORM COMMERCIAL CODE (INCLUDING LESSEE'S RIGHTS, CLAIMS AND DEFENSES UNDER
UCC ARTICLE 2A SECTIONS 508-522) AND ANY RIGHTS NOW OR HEREAFTER CONFERRED BY
STATUTE OR OTHERWISE THAT MAY LIMIT OR MODIFY LESSOR'S RIGHTS AS DESCRIBED IN
THIS SECTION OR OTHER SECTIONS OF THIS MASTER AGREEMENT.
15. LESSEE WARRANTIES. Lessee represents, warrants and covenants to Lessor
that: (a) all Equipment is leased for business purposes only and not for
personal, family or household purposes; (b) Lessee is duly organized, validly
existing and in good standing under applicable law; (c) Lessee has the power and
authority to enter into the Transaction Documents; (d) the Transaction Documents
are enforceable against Lessee in accordance with their terms and do not violate
or create a default under any instrument or agreement binding on Lessee; (e)
there are no pending or threatened actions or proceedings before any court or
administrative agency which could have a material adverse effect on Lessee or
any Transaction Document, unless such actions are disclosed to Lessor and
consented to in writing by Lessor; (f) Lessee shall comply in all material
respects with all laws and regulations the violation of which could have a
material adverse effect upon the Equipment or Lessee's performance of its
obligations under any Transaction Document; (g) each Transaction Document shall
be effective against all creditors of Lessee under applicable law, including
fraudulent conveyance and bulk transfer laws, and shall raise no presumption of
fraud; (h) financial statements and other related information furnished by
Lessee shall be prepared in accordance with generally accepted accounting
principles and shall fairly present Lessee's financial position as of the dates
given on such statements; (i) Lessee shall furnish Lessor with its financial
statements certified by an officer of Lessee on a monthly basis within thirty
(30) days of the end of each month, and audited financial statements on an
annual basis within 120 days of the end of each fiscal year, resolutions, and
such other information and documents as Lessor may reasonably request; (j) all
Equipment is tangible personal property and shall not become a fixture or real
property under Lessee's use thereof; and (k) there has not been a material
adverse change in the general affairs, management, results of operations,
condition (financial or otherwise) or prospects of Lessee, whether or not
arising from transactions in the ordinary course of business. Lessee shall be
deemed to have reaffirmed the foregoing warranties each time it executes any
Transaction Document.
16. DEFAULT. Any of the following shall constitute a Default under this
Master Agreement and all Leases: (a) Lessee fails to pay any Rent payment or any
other amount payable to Lessor hereunder when due; or (b) Lessee fails to pay
any amounts payable under any Material Agreement when due; or (c) Lessee
defaults on or breaches any of the other material terms and conditions of any
Material Agreement which default or breach is not cured within five (5) days of
such default or breach; or (d) any representation or warranty made by Lessee in
a Material Agreement proves to be incorrect in any material respect when made or
reaffirmed; or (e) Lessee becomes insolvent or fails generally to pay its debts
as they become due; or (f) the Equipment is levied against, seized or attached
and the same is not bonded against, released or stayed within ten days; or (g)
Lessee makes an assignment for the benefit of creditors, whether voluntary or
involuntary; or (h) a proceeding under any bankruptcy, reorganization,
arrangement of debt, insolvency or receivership law is filed by or against
Lessee or Lessee takes any action to authorize any of the foregoing matters and,
if filed against Lessee, is not dismissed within 30 days; or (i) any letter of
credit, guaranty, surety bond or like instrument issued in support of a Lease is
revoked, breached, canceled or terminated; (j) any guarantor, surety or like
third-party obligor under this Master Agreement fails to fulfill any of the
obligations of Lessor which it agreed to perform; or (k) in the good faith,
reasonable commercial judgment of Lessor, there has occurred or will likely
occur a material adverse change in the general affairs, management, results of
operations, condition (financial or otherwise) or prospects of Lessee, whether
or not arising from transactions in the ordinary course of
business, or in Lessee's or any such third-party obligor's willingness or
ability to perform under any Transaction Document.
17. REMEDIES. If a Default occurs, Lessor may, in its sole discretion,
exercise one or more of the following remedies, without notice of election and
without demand: (a) terminate this Master Agreement or any Lease; without notice
of election and without demand, (b) take possession of, or render unusable, any
Equipment wherever the Equipment may be located, without demand or notice,
without any court order or other process of law and without liability to Lessor
for any damages occasioned by such action, and no such action shall constitute a
termination of any Lease; or (c) require Lessee to deliver the Equipment to a
location specified by Lessor; or (d) declare the Stipulated Loss Value for any
or all Leases to be due and payable as liquidated damages for loss of a bargain
and not as a penalty and in lieu of any further Rent payments under the
applicable Lease or Leases; or (e) proceed by court action to enforce
performance by Lessee of any Lease and/or to recover all damages and expenses
incurred by Lessor by reason of any Default; or (f) terminate any other
agreement that Lessor may have with Lessee; or (g) suspend or terminate funding
of the Commitment Amount or any other amount in connection with the Transaction
Documents; or (h) exercise any other right or remedy available to Lessor at law
or in equity. Any Rent not received on or before the due date shall bear
interest at the lesser of 1.5% per month or the highest interest rate legally
permissible. Lessee shall pay Lessor all costs and expenses that Lessor may
incur to maintain, safeguard or preserve the Equipment, and other expenses
incurred by Lessor in enforcing any of the terms, conditions or provisions of
this Agreement (including reasonable legal fees and collection agency costs).
Upon repossession or surrender of any Equipment, Lessor shall lease, sell or
otherwise dispose of the Equipment in compliance with applicable law and apply
the net proceeds thereof (after deducting all expenses, including reasonable
legal fees and costs, incurred in connection therewith) to the amounts owed to
Lessor hereunder; provided, however, that Lessee shall remain liable to Lessor
for any deficiency that remains after any sale or lease of such Equipment. These
remedies are cumulative of every other right or remedy given hereunder or now or
hereafter existing at law or in equity or by statute or otherwise, and may be
enforced concurrently therewith or from time to time.
18. PERFORMANCE OF LESSEE'S OBLIGATIONS. If Lessee fails to perform any of
its obligations hereunder, Lessor may perform any act or make any payment that
Lessor deems reasonably necessary for the maintenance and preservation of the
Equipment and Lessor's interests therein; provided that the performance of any
act or payment by Lessor shall not be deemed a waiver of, or release Lessee
from, the obligation at issue. All sums so paid by Lessor, together with
expenses (including reasonable legal fees and costs) incurred by Lessor in
connection therewith, shall be considered Rent hereunder, will bear interest at
the lesser of 1.5% per month or the highest interest rate legally permissible,
and shall be, without demand, immediately due and payable to Lessor by Lessee.
19. ASSIGNMENT. Lessor may assign, pledge, transfer, mortgage or otherwise
convey any of its interest in this Master Agreement, any Lease, Schedule or
Equipment, in whole or in part, without notice to or the consent of Lessee. If
any Lease is assigned, Lessee shall: (a) unless otherwise specified by Lessor
and Assignee, pay all amounts due under the applicable Lease to such Assignee,
notwithstanding any defense, setoff or counterclaim whatsoever that Lessee may
have against Lessor or Assignee, all of which are hereby waived by Lessee as to
any Assignee; (b) not require the Assignee to perform any obligations of Lessor,
other than those that are expressly assumed in writing by such Assignee; and (c)
execute such acknowledgements thereto as may be requested by Lessor. It is
further agreed that: (x) each Assignee shall be entitled to all of Lessor's
rights, powers and privileges under the applicable Lease, to the extent
assigned; (y) any Assignee may reassign its rights and interests under the
applicable Lease with the same force and effect as the assignment described
herein; and (z) any payments received by the Assignee from Lessee with respect
to the assigned Lease shall, to the extent thereof, discharge the obligations of
Lessee to Lessor with respect to the assigned Lease. Lessee acknowledges that
any assignment or transfer by Lessor or any Assignee will not materially change
Lessee's obligations under the assigned Lease. Without Lessor's prior written
consent, Lessee shall not assign this Master Agreement or any Lease or assign
its rights in or sublet the Equipment or any interest therein.
20. FURTHER ASSURANCES. Lessee shall promptly execute and deliver to
Lessor such further documents and take such further action as Lessor may require
in order to more effectively carry out the intent and purpose of this Master
Agreement and any Lease, including executing and delivering any and all
financing statements which Lessor may request. Upon demand, Lessee will promptly
reimburse Lessor for any filing or recording fees or expenses (including
reasonable legal fees and costs) incurred by Lessor in perfecting or protecting
its interests in the Equipment.
21. SURVIVAL. All representations, warranties and covenants made by Lessee
hereunder shall survive the termination of this Agreement and shall remain in
full force
and effect. All of Lessor's rights, privileges and indemnities, to the extent
they are fairly attributable to events or conditions occurring or existing on or
prior to the termination of this Agreement, shall survive such termination and
be enforceable by Lessor and Lessor's successors and assigns.
22. WAIVER OF JURY TRIAL. LESSEE AND LESSOR HEREBY EXPRESSLY WAIVE ANY
RIGHT TO DEMAND A JURY TRIAL WITH RESPECT TO ANY ACTION OR PROCEEDING INSTITUTED
BY LESSOR OR
LESSEE IN CONNECTION WITH THIS MASTER LEASE OR ANY LEASE OR SCHEDULE.
23. CAPTIONS; COUNTERPARTS; LESSOR'S AFFILIATES. The captions contained in
this Agreement are for convenience only and shall not affect the interpretation
of this Master Agreement. Only the Original shall be marked "Original", and all
other counterparts of the Schedule shall be marked as, and shall be, duplicates.
To the extent that any Schedule constitutes chattel paper (as such term is
defined in the Uniform Commercial Code in effect in the applicable
jurisdiction), no security interest in such Schedule may be created through the
transfer or possession of any counterpart other than the Original.
24. MISCELLANEOUS. This Master Agreement and each Lease hereunder shall be
governed by the internal laws (as opposed to conflicts of law provisions) of the
state of California. If any provision of this Master Agreement or any Schedule
shall be prohibited by or invalid under any law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Master Agreement or any Lease. Lessor and Lessee consent to the jurisdiction of
any local, state or federal court located within the County of Santa ▇▇▇▇▇,
State of California, and waive any objection relating to improper venue or forum
non conveniens to the conduct of any proceeding in any such court. This
Agreement and the other Transaction Documents constitute the entire agreement
between Lessor and Lessee relating to the leasing of the Equipment, and
supersede all prior agreements relating thereto, whether written or oral, and
may not be amended or modified except in a writing signed by the parties hereto.
Any failure of Lessor to require strict performance by Lessee, or any written
waiver by Lessor of any provision hereof, shall not constitute consent or waiver
of any other breach of the same or any other provision hereof.
IN WITNESS WHEREOF, LESSOR AND LESSEE HAVE EXECUTED THIS MASTER AGREEMENT AS OF
THE DATE SPECIFIED.
LESSEE LESSOR
DIGITAL INSIGHT CORPORATION SILICON VALLEY BANK
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇ By:_______________________
▇▇▇ ▇▇▇▇▇▇ CORPORATE CONTROLLER __________________________
Name and Title Name and Title
CORPORATE RESOLUTION
LESSEE DIGITAL INSIGHT CORPORATION BANK: SILICON VALLEY BANK
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
I, THE UNDERSIGNED SECRETARY OR ASSISTANT SECRETARY OF DIGITAL INSIGHT
CORPORATION ("LESSEE"), HEREBY CERTIFY that Lessee is a corporation duly
organized and existing under and by virtue of the laws of the State of Delaware
I FURTHER CERTIFY that at a meeting of the Directors of Lessee (or by other duly
authorized corporate action in lieu of a meeting), duly called and held, at
which a quorum was present and voting, the following resolutions were adopted.
BE IT RESOLVED, that any one (1) of the following named officers, employees, or
agents of Lessee, whose actual signatures are shown below:
NAMES POSITIONS ACTUAL SIGNATURES
▇▇▇▇ ▇. ▇▇▇▇▇▇ President and CEO /s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ CONTROLLER /s/ ▇▇▇ ▇▇▇▇▇▇▇
_________________ _________________ _________________
_________________ _________________ _________________
_________________ _________________ _________________
acting for and on behalf of Lessee and as its act and deed be, and they hereby
are, authorized and empowered:
FINANCE OR LEASE. To finance or lease from time to time from Silicon Valley
Bank ("Bank"), on such terms as may be agreed upon between the officers of
Lessee and Bank, such hardware products and related maintenance charges, if
any as in their judgment should be financed or leased.
EXECUTE FINANCING OR LEASE DOCUMENTS. To execute and deliver to Bank the
financing or lease documents of Lessee, on Bank's forms, upon such terms as
may be agreed upon, evidencing the indebtedness of Lessee to Bank, and also
to execute and deliver to Bank one or more renewals, extensions,
modifications, refinancings, consolidations, or substitutions for one or
more of the financing or lease documents, or any portion thereof.
GRANT SECURITY. To grant a security interest to Bank in any of Lessee's
assets, which security interest shall secure all of Lessee's obligations to
Bank.
NEGOTIATE ITEMS. To draw, endorse, and discount with Bank all drafts, trade
acceptances, promissory notes, or other evidences of indebtedness payable
to or belonging to Lessee or in which Lessee may have an interest, and
either to receive cash for the same or to cause such proceeds to be
credited to the account of Lessee with Bank, or to cause such other
disposition of the proceeds derived therefrom as they may deem advisable.
ISSUE WARRANTS. To issue warrants to purchase Lessee's capital stock, for
such class, series and number, and on such terms, as an officer of Lessee
shall deem appropriate.
FURTHER ACTS. To designate additional or alternate individuals as being
authorized to request financings or additional leases, and in all cases, to
do and perform such other acts and things, to pay any and all fees and
costs, and to execute and deliver such other documents and agreements,
including agreements waiving the right to a trial by jury, as they may in
their discretion deem reasonably necessary or proper in order to carry into
effect the provisions of these Resolutions.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to these
Resolutions and performed prior to the passage of these resolutions are hereby
ratified and approved, that these Resolutions shall remain in full force and
effect and Bank may rely on these Resolutions until written notice of their
revocation shall have been delivered to and received by Bank. Any such notice
shall not affect any of Lessee's agreements or commitments in effect at the time
notice is given.
I FURTHER CERTIFY that the persons named above are principal officers of the
Lessee and occupy the positions set opposite their respective names; that the
foregoing Resolutions now stand of record on the books of the Lessee; and that
they are in full force and effect and have not been modified or revoked in any
manner whatsoever.
IN WITNESS WHEREOF, I have hereunto set my hand on Mar 01, 1999 and attest that
------------
the signatures set opposite the names listed above are their genuine signatures.
CERTIFIED TO AND ATTESTED BY
X /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ X_______________
*Secretary or Assistant Secretary
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
*NOTE: In case the Secretary or other certifying officer is designated by the
foregoing resolutions as one of the signing officers, this resolution should
also be signed by a second Officer or Director of Lessee.
RIDER 1
TO
ALL SCHEDULES
TO MASTER LEASE AGREEMENT
This Rider 1 applies to all Schedules (the "Schedule") to the Master Lease
Agreement between Silicon Valley Bank ("Lessor") and Digital Insight Corporation
("Lessee") and is attached to and made part of the Schedule.
A. END OF TERM PAYMENT. At the end of the term of this Lease, Lessee shall
exercise either (i) a fixed price purchase option of 15% of the Total Cost (the
"Fixed Purchase Price"); or (ii) a fixed price renewal option based on a
percentage of the monthly Rent payment to be mutually agreed upon in good faith
by Lessee and Lessor prior to Lessee's exercise of the fixed price renewal
option (the "Fixed Renewal Price"). Lessee hereby authorizes Lessor to adjust
the Fixed Purchase Price and Fixed Renewal Price to reflect the Total Cost.
B. PURCHASE AND RENEWAL. The following provisions shall govern the purchase
of the Equipment and the renewal of the Lease: (a) when Lessee elects to
purchase the Equipment or renew the Lease, in any such case, Lessee shall advise
Lessor thereof in writing at least 90 days prior to the expiration of the then
Applicable Term; (b) if Lessee elects to purchase the Equipment, it may do so by
purchasing all (but not less than all) of the Equipment at the end of the then
Applicable Term at the Fixed Purchase Price; or (c) if Lessee elects to renew
the Lease it may do so with respect to all (but not less than all) of the
Equipment by entering into a mutually agreeable renewal agreement with Lessor at
least 30 days prior to the expiration of the then Applicable Term, confirming
the length of the renewal term and the Rent for such period in an amount equal
to the Fixed Renewal Price; (d) in the event that Lessee fails to fulfill the
foregoing provisions of this Section B for either a purchase or renewal, as the
case may be, the Lease will be automatically extended for successive 30 day
periods until Lessee complies with the applicable purchase or renewal
provisions; (e) if this Lease is extended (as opposed to renewed) pursuant to
any of the provisions hereof, Lessee shall continue to pay Lessor the monthly
Rent payments in effect prior to the expiration of the Applicable Term and all
other provisions of the Master Agreement and this Schedule (including Lessee's
purchase and renewal options) shall remain in full force and effect; (f) if
Lessee elects to purchase the Equipment and has fulfilled the terms and
conditions of the Master Agreement and this Section B, then on the last day of
the Applicable Term: (A) this Schedule shall terminate and, except as provided
in Section 21 of the Master Agreement, Lessee shall be relieved of all
obligations under this Schedule; and (B) Lessor shall transfer all of its
interest in the Equipment to Lessee "AS IS, WHERE IS," and without any warranty,
express or implied from Lessor, other than the absence of any liens or claims
by, through, or under Lessor; and (g) notwithstanding any of the foregoing
provisions to the contrary, if Lessee is in Default of the Lease, Lessor may
cancel any extension or renewal of any term upon ten (10) days prior written
notice to Lessee.
C. STIPULATED LOSS VALUE. The parties agree that the stipulated loss value
of the Equipment ("Stipulated Loss Value") shall equal the sum of (i) all Rent
and other amounts then due and owing under the Lease; plus (ii) an amount
calculated by Lessor that is the present value (discounted at 5% per annum
compounded monthly) of all Rent payments from the date of the Casualty or
Default in question to the scheduled date of expiration of the Initial Term and
any renewal or extension term; plus (iii) the present value (computed as
described above and calculated by Lessor as of the date of the Casualty or
Default in question) of the Fixed Purchase Price. The applicable percentage
shall be 30% for any Lease of an Initial Term of less than 36 months; 25% for a
term of 36 months or more, but less than 48 months; 20% for a term of 48 months
or more, but less than 60 months; 15% for a term of 60 months or more, but less
than 72 months, and 10% for a term of 72 months or more.
INITIALS:
LESSEE ▇▇▇ ▇▇▇▇▇▇▇ LESSOR
DIGITAL INSIGHT CORPORATION SILICON VALLEY BANK__________
