Exhibit 10.22
MASTER EQUIPMENT LEASE NO. 0047
Under this Master Equipment Lease No. 0047 (the "Lease"), dated as of December
1, 1996, PHOENIX LEASING INCORPORATED, a California corporation ("Lessor"),
hereby leases to INTERNET TRAVEL NETWORK, a California corporation ("Lessee"),
and Lessee hereby leases from Lessor, the equipment including custom use
equipment, installation and delivery costs, purchase tax, tooling, software, and
certain items which are generally considered by Lessor to be fungible and
expendable (referred to separately as "Soft Costs") (the Soft Costs and
equipment herein together called "Equipment") which is described on the schedule
attached hereto or any subsequently-executed schedule entered into by Lessor and
Lessee and which incorporates this Lease by reference. Any such schedules shall
hereinafter individually be referred to as a "Schedule" and collectively be
referred to as the "Schedules." Lessor hereby leases the Equipment to Lessee
upon the following terms and conditions:
1. TERM OF AGREEMENT. The term of this Lease begins on the date set
forth above and shall continue thereafter and be in effect so long as and at any
time any Schedule entered into pursuant to this Lease is in effect. The Initial
Term and rent payable with respect to each leased item of Equipment shall be as
set forth in and as stated in the respective Schedule(s). The terms of each
Schedule hereto are subject to all conditions and provisions of this Lease as it
may at any time be amended. Each Schedule shall constitute a separate and
independent lease and contractual obligation of Lessee and shall incorporate the
terms and conditions of this Master Equipment Lease and any additional
provisions contained in such Schedule. In the event of a conflict between the
terms and conditions of this Lease and any additional provisions of such
Schedule, the additional provisions of such Schedule shall prevail with respect
to such Schedule only.
2. NON-CANCELLABLE LEASE. This Lease and any Schedule cannot be
cancelled or terminated except as expressly provided herein. This Lease
(including all Schedules to this Lease) constitutes a net lease and Lessee
agrees that its obligations to pay all rent and other sums payable hereunder
(and under any Schedule) and the rights of Lessor and assignee in and to such
rent and other sums, are absolute and unconditional and are not subject to any
abatement, reduction, setoff, defense, counterclaim or recoupment due or alleged
to be due to, or by reason of, any past, present or future claims which Lessee
may have against Lessor, any assignee, the manufacturer or seller of the
Equipment, or against any person for any reason whatsoever.
3. LESSOR COMMITMENT. So long as no Event of Default or event which
with the giving of notice or passage of time, or both, could become an Event of
Default has occurred or is continuing, Lessor agrees to lease to Lessee the
groups of Equipment described on each Schedule, subject to the following
conditions: (i) that in no event shall Lessor be obligated to lease Equipment to
Lessee hereunder where the aggregate purchase price of all Equipment leased to
Lessee hereunder would exceed $500,000 ("Commitment") of which amount Lessor may
finance Soft Costs for lease to Lessee having an aggregate purchase price not
exceeding an amount equal to 20% of the utilized Commitment; (ii) the amount of
Equipment purchased by Lessor at any one time shall be at least equal to $25,000
except for a final advance which may be less than $25,000; (iii) Lessor shall
not be obligated to purchase
Equipment hereunder after June 30, 1997, provided that the funding period may be
extended to August 31, 1997 if Lessor has received and accepted Lessee's
calendar 1997 monthly financial plan ("1997 Business Plan"); (iv) all Lease
documentation required by Lessor has been executed by Lessee or provided by
Lessee no later than December 31, 1996 ; (v) the equipment described on the
Schedule is acceptable to Lessor; (vi) with respect to each funding Lessee has
provided to Lessor, and Lessor agrees to hold in confidence and trust and to act
in a fiduciary duty (even upon termination of the Lease) with respect to each of
the closing documents and other items described in Exhibit A hereto (which
documents shall be in form and substance acceptable to Lessor) and which list
may be modified for each subsequent funding; (vii) there is no material adverse
change in Lessee's condition, financial or otherwise, as reasonably determined
by Lessor and Lessee so certifies, from (yy) the date of the most recent
financial statements delivered by Lessee to Lessor prior to execution of this
Lease, to (zz) the date of the proposed lease of the Equipment; (viii) at all
fundings Lessee is performing according to the Income Statement and Cash Flow
portions of its business plan referred to as "Financial Projection, (five pages)
including Income Statement, Cash Flow, Transaction Fee Revenue Detail, Private
Label Revenue and Revenue Detail by Type" dated September 18, 1996, as may be
amended by Lessee's 1997 Business Plan and otherwise from time to time in form
and substance acceptable to Lessor (collectively, "Business Plan"); (ix) Lessor
or its agent has inspected and placed identification labels on the Equipment;
and (x) Lessor has received in form and substance acceptable to Lessor: (a)
Lessee's interim financial statements signed by a financial officer of Lessee;
(b) hard copy evidence of Lessee's $3,480,000 cash position as of May 31, 1996;
(c) Lessee's Capitalization Table; and (d) Lessee's corporate resolution
authorizing the transaction herein.
4. NO WARRANTIES BY LESSOR. (a) Lessee has selected both (i) the
Equipment and (ii) the suppliers (herein called "Vendor") from whom Lessor is to
purchase the Equipment. LESSOR MAKES NO WARRANTY EXPRESS OR IMPLIED AS TO ANY
MATTER WHATSOEVER, INCLUDING THE CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY
OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND AS TO LESSOR, LESSEE LEASES THE
EQUIPMENT "AS IS" AND WITH ALL FAULTS. (b) If the Equipment is not properly
installed, does not operate as represented or warranted by Vendor or is
unsatisfactory for any reason, Lessee shall make any claim on account thereof
solely against Vendor and shall, nevertheless, pay Lessor all rent payable under
this Lease, Lessee hereby waiving any such claims as against Lessor. Lessor
hereby agrees to assign to Lessee solely for the purpose of making and
prosecuting any said claim, to the extent assignable, all of the rights which
Lessor has against Vendor for breach of warranty or other representation
respecting the Equipment. Lessor shall have no responsibility for delay or
failure to fill the order. (c) Lessee understands and agrees that neither the
Vendor nor any salesman or other agent of the Vendor is an agent of Lessor. No
salesman or agent of Vendor is authorized to waive or alter any term or
condition of this Lease, and no representations as to the Equipment or any other
matter by the Vendor shall in any way affect Lessee's duty to pay the rent and
perform its other obligations as set forth in this Lease. (d) Lessee hereby
requests Lessor to purchase Equipment from Vendor and to lease Equipment to
Lessee on the terms and conditions of the Lease set forth herein. (e) Lessee
hereby authorizes Lessor to insert in this Lease and each Schedule hereto the
serial numbers and other identification data of the Equipment when determined by
Lessor.
2
5. LESSEE'S REPRESENTATIONS AND WARRANTIES. Lessee represents and
warrants that, (a) it is a corporation in good standing under the laws of the
state of its incorporation, and duly qualified to do business, and will use its
best efforts to remain duly qualified during the term of this Lease, in each
state where the Equipment will be located, as specified on each Schedule hereto;
(b) it has full authority to execute and deliver this Lease and perform the
terms hereof, and this Lease has been duly authorized and constitutes valid and
binding obligations of Lessee enforceable in accordance with its terms; (c) to
the best knowledge of Lessee, this Lease will not contravene any law, regulation
or judgment affecting Lessee or result in any breach of any agreement or other
instrument binding on Lessee; (d) no consent of Lessee's shareholders or holder
of any indebtedness, or to the best knowledge of Lessee, filing with, or
approval of, any governmental agency or commission, is a condition to the
performance of the terms hereof; (e) to its best knowledge, as of the date
hereof, there is no action or proceeding pending or threatened against Lessee
before any court or administrative agency which might have a materially adverse
effect on the business, financial condition or operations of Lessee; (f) no deed
of trust, mortgage or third party interest arising through Lessee will attach to
the Equipment or the Lease; (g) the Equipment will remain at all times under
applicable law, removable personal property, free and clear of any lien or
encumbrance in favor of Lessee or any other person except the Lessor,
notwithstanding the manner in which the Equipment may be attached to any real
property; (h) all credit, financial and any other information submitted to
Lessor herewith or any other time is true and correct; and (i) Lessee has
provided, or will provide if requested, Lessee's tax identification number.
6. EQUIPMENT-ORDERING. Lessee shall be responsible for all packing,
rigging, transportation and installation charges for the Equipment and Lessor
may separately invoice Lessee for such charges. Lessee has selected the
Equipment itself and shall arrange for delivery of Equipment so that it can be
accepted in accordance with Section 7 hereof. Lessee hereby agrees to indemnify
and hold Lessor harmless from any claims, liabilities, costs and expenses,
including reasonable attorneys' fees, incurred by Lessor arising out of any
purchase orders or assignments executed by Lessor with respect to any Equipment
or services relating thereto.
7. LESSEE ACCEPTANCE. Upon receipt, preparation and installation of
any item of Equipment, Lessee shall return to Lessor the signed and dated
Acceptance Notice attached to each Schedule hereto (a) acknowledging the
Equipment has been received, installed and is ready for use and (b) accepting it
as satisfactory in all respects for the purposes of this Lease. Lessor is
authorized to fill in the Rent Start Date on each Schedule in accordance with
the foregoing.
8. LOCATION; INSPECTION; LABELS. Equipment shall be delivered to and
shall not be removed from the Equipment "Location" shown on each Schedule
without Lessor's prior written consent which shall not be unreasonably withheld,
which "Location" shall in all events be within the United States. Lessor shall
have the right to inspect Equipment at any reasonable time mutually agreeable to
Lessor and Lessee upon one (1) day's prior notice. Lessee shall be responsible
for all labor, material and freight charges incurred in connection with any
removal or relocation of such Equipment which is requested by the Lessee and
consented to by Lessor, as well as for any charges due to the installation or
moving of the Equipment. The rental payments shall continue during any period in
which the Equipment is in transit during a
3
relocation. Lessor or its agent shall xxxx and label Equipment, which labels
shall state Equipment is owned by Lessor, and Lessee shall keep such labels on
the Equipment as labeled by Lessor or its agent.
9. EQUIPMENT MAINTENANCE. (a) General. Lessee will locate or base
-------
each item of Equipment where designated in an Acceptance Notice and will
reasonably permit Lessor to inspect such item of Equipment and its maintenance
records at a time mutually agreeable to Lessor and Lessee upon one (1) day's
prior notice. Lessee will at its sole expense comply with all applicable laws,
rules, regulations, requirements and orders with respect to the use,
maintenance, repair, condition, storage and operation of each item of Equipment.
Except as required herein, Lessee will not make any addition or improvement to
any item of Equipment that is not readily removable without causing material
damage to any item or impairing its original value or utility. Any addition or
improvement that is so required or cannot be so removed will immediately become
the property of Lessor. (b) Service and Repair. With respect to computer
------------------
equipment, other than personal computers, Lessee has entered into, and will
maintain in effect, Vendor's standard maintenance contract or another contract
satisfactory to Lessor for a period equal to the term of each Schedule and
extensions thereto which provides for the maintenance of the Equipment and
repairs and replacement parts thereof in good condition and working order, all
in accordance with the terms of such maintenance contract. Lessee shall have the
Equipment certified for the Vendor's standard maintenance agreement prior to
delivery to Lessor upon expiration of this Lease. With respect to any other
Equipment, Lessee will, at its sole expense, maintain and service, and repair
any damage to, each item of Equipment in a manner consistent with prudent
industry practice and Lessee's own practice so that such item of Equipment is at
all times (i) in the same condition as when delivered to Lessee, except for
ordinary wear and tear, (ii) in good operating order for the function intended
by its manufacturer's warranties and recommendations.
10. LOSS OR DAMAGE. Upon Lessee's acceptance of any particular item
of Equipment in accordance with Section 7 above, Lessee assumes the entire risk
of loss to such item of Equipment through use, operation or otherwise. Lessee
hereby indemnifies and holds harmless Lessor from and against all claims, loss
of rental payments, costs, damages, and expenses relating to or resulting from
any loss, damage or destruction of the Equipment and for which the Lessor bears
no fault, any such occurrence being hereinafter called a "Casualty Occurrence."
On the first rental payment date following such Casualty Occurrence, or, if
there is no such rental payment date, thirty (30) days after such Casualty
Occurrence, Lessee shall (i) repair the Equipment, returning it to good
operating condition or (ii) replace the Equipment with substantially similar
equipment in good condition and repair, the title to which shall vest in Lessor
and which thereafter shall be subject to the terms of this Lease; or (iii) pay
to Lessor (a) any unpaid accrued amounts relating to such Equipment due Lessor
under this Lease up to the date of the Casualty Occurrence, and (b) a sum equal
to the Casualty Value as set forth in the Casualty Value table attached to each
Schedule hereto for such Equipment. Upon the making of such payment, the term of
this Lease as to each unit of Equipment with respect to which the Casualty Value
was paid shall terminate.
11. GENERAL INDEMNITY. Except where Lessor is in breach of the Lease
or is grossly negligent, Lessee will protect, indemnify and save harmless Lessor
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and
4
expenses, imposed upon or incurred by or asserted against Lessor or any assignee
of Lessor by Lessee or any third party by reason of the occurrence or existence
(or alleged occurrence or existence) of any act or event relating to or caused
by the Equipment, including but not limited to, consequential or special damages
of any kind, or any failure on the part of Lessee to perform or comply with any
of the terms of this Lease. In the event that any action, suit or proceeding is
brought against Lessor by reason of any such occurrence, Lessee, upon request of
Lessor, will at Lessee's expense resist and defend such action, suit or
proceeding or cause the same to be resisted and defended by counsel designated
by Lessee and approved by Lessor, such approval not to be unreasonably withheld.
Lessee's obligations under this Section 11 shall survive the termination or
expiration of this Lease only with respect to acts or events occurring or
alleged to have occurred prior to the return of the Equipment to Lessor at the
end of the Lease term.
12. INSURANCE. Lessee at its expense shall keep the Equipment insured
for the entire term and any extensions of this Lease against all risks for at
least the replacement value of such Equipment and shall provide for a loss
payable endorsement to Lessor or any assignee of Lessor. Lessee shall maintain
comprehensive general public liability insurance with respect to loss or damage
for personal injury, death or property damage in an amount not less than
$2,000,000 per occurrence, naming Lessor and Lessor's assignee as additional
insured. Such insurance shall contain insurer's agreement to give thirty (30)
days written notice to Lessor before cancellation or material change of any
policy of insurance. Lessee will provide Lessor and any assignee of Lessor with
a certificate of insurance from the insurer evidencing Lessor's or such
assignee's interest in the policy of insurance. Such insurance shall cover any
Casualty Occurrence to any unit of Equipment. Notwithstanding anything in
Section 10 or this Section 12 to the contrary, this Lease and Lessee's
obligations hereunder and under each Schedule shall remain in full force and
effect with respect to any unit of Equipment which is not subject to a Casualty
Occurrence. If Lessee fails to provide or maintain insurance as required herein,
Lessor shall have the right, but shall not be obligated to obtain such
insurance. In that event, Lessee shall pay to Lessor the cost thereof.
13. TAXES. Lessee agrees to reimburse Lessor for, (or pay directly if
instructed by Lessor), and agrees to indemnify and hold Lessor harmless from,
all fees (including, but not limited to, license, documentation, recording and
registration fees), and all sales, use, gross receipts, personal property,
occupational, value added or other taxes, levies, imposts, duties, assessments,
charges, or withholdings of any nature whatsoever, together with any penalties,
fines, additions to tax, or interest thereon (all of the foregoing being
hereafter referred to as "Impositions") except same as may be attributable to
Lessor's income, arising at any time prior to or during the term of this Lease,
or upon termination or early termination of this Lease and levied or imposed
upon Lessor directly or otherwise by any Federal, state or local government in
the United States or by any foreign country or foreign or international taxing
authority upon or with respect to (i) the Equipment, (ii) the exportation,
importation, registration, purchase, ownership, delivery, leasing, possession,
use, operation, storage, maintenance, repair, return, sale, transfer of title,
or other disposition thereof, (iii) the rentals, receipts, or earnings arising
from the Equipment, or, alternatively, any disposition of the rights to such
rentals, receipts, or earnings, (iv) any payment pursuant to this Lease, and (v)
this Lease or the transaction or any part thereof. Lessee's obligations under
this Section 13 shall survive the expiration of this Lease with respect to acts
or events occurring prior to the return of the Equipment to Lessor at the end of
the Lease term.
5
14. PAYMENT BY LESSOR. If Lessee shall fail to make any payment or
perform any act required hereunder, then Lessor may, but shall not be required
to, after such notice to Lessee as is reasonable under the circumstances, make
such payment or perform such act with the same effect as if made or performed by
Lessee. Lessee will upon demand reimburse Lessor for all sums paid and all costs
and expenses incurred in connection with the performance of any such act.
15. SURRENDER OF EQUIPMENT. Upon termination or expiration of this
Lease, with respect to each group of Equipment, Lessee will forthwith surrender
the Equipment to Lessor delivered in as good order and condition as originally
delivered, reasonable wear and tear excepted. Lessor may, at its sole option,
arrange for removal and transportation of the Equipment provided that Lessee's
obligations under Sections 10 and 12 shall terminate upon Lessor's receipt of
the Equipment and be released. Lessee shall bear all expenses of delivering
(which include, but are not limited to, the de-installation, insurance,
packaging and transportation of) the Equipment to Lessor's location. In the
event Lessee fails to deliver the Equipment as directed above, all obligations
of Lessee under this Lease, including rental payments, shall remain in full
force and effect until Lessee delivers the Equipment to Lessor.
16. ASSIGNMENT. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, SUCH CONSENT
NOT TO BE UNREASONABLY WITHHELD, LESSEE SHALL NOT (a) ASSIGN OR TRANSFER,
PLEDGE, HYPOTHECATE OR OTHERWISE DISPOSE OF THIS LEASE, EQUIPMENT, OR ANY
INTEREST THEREIN, OR (b) SUBLET OR LEND EQUIPMENT OR PERMIT IT TO BE USED BY
ANYONE OTHER THAN LESSEE OR LESSEE'S EMPLOYEES. LESSOR MAY ASSIGN THIS LEASE OR
GRANT A SECURITY INTEREST IN ANY OR ALL EQUIPMENT, OR BOTH, IN WHOLE OR IN PART
TO ONE OR MORE ASSIGNEES OR SECURED PARTIES WITHOUT NOTICE TO LESSEE.
Notwithstanding the above, Lessee may, without Lessor's prior written consent,
assign or transfer this Lease to a subsidiary of Lessee in connection with a
reincorporation of Lessee, the sole purpose of which is to change the state in
which Lessee is incorporated, provided, however, Lessee agrees to provide
reasonable advance notice to Lessor of such change and such change does not
result in a material adverse change in Lessee's condition, financial or
otherwise. If Lessee is given notice of such assignment it agrees to acknowledge
receipt thereof in writing and Lessee shall execute such additional
documentation as Lessor's assignee shall require. Each such assignee and/or
secured party shall have all of the rights, but none of the obligations, of
Lessor under this Lease, unless such assignee or secured party expressly agrees
to assume such obligations in writing. Lessee shall not assert against any
assignee and/or secured party any defense, counterclaim or offset that Lessee
may have against Lessor. Notwithstanding any such assignment, and providing no
Event of Default has occurred and is continuing, Lessor, or its assignees,
secured parties, or their agents or assigns, shall not interfere with Lessee's
right to quietly enjoy use of Equipment subject to the terms and conditions of
this Lease. Subject to the foregoing, this Lease inures to the benefit of and is
binding upon the successors and assignees of the parties hereto. Lessor agrees
and Lessee acknowledges that any such assignment by Lessor will not materially
change Lessee's duties or obligations under the Lease or increase any burden of
risk on Lessee.
17. DEFAULT. (a) Event of Default. Any of the following events or
----------------
conditions shall constitute an "Event of Default" hereunder: (i) Lessee's
failure to pay any
6
monies due to Lessor hereunder or under any Schedule beyond the thirtieth (30th)
day after the same is due, provided, however, Lessee shall pay late charges
pursuant to Section 18 hereof upon its failure to pay such monies beyond ten
(10) days after the same is due; (ii) Lessee's failure to comply with its
obligations under Section 12 or Section 16; (iii) Lessee's failure to comply
with or perform any term, covenant, condition, warranty or representation of
this Lease or any Schedule hereto or under any other agreement between Lessee
and Lessor or under any lease of real property covering the location of
Equipment if such failure to comply or perform is not cured by Lessee within
thirty (30) days of receipt of notice thereof; (iv) seizure of the Equipment
under legal process; (v) the filing by or against Lessee of a petition for
reorganization or liquidation under the Bankruptcy Code or any amendment thereto
or under any other insolvency law providing for the relief of debtors; (vi) the
voluntary or involuntary making of an assignment of all or substantially all of
its assets by Lessee, or any guarantor ("Guarantor") under any guaranty executed
in connection with this Lease ("Guaranty"), for the benefit of its creditors,
the appointment of a receiver or trustee for Lessee or any Guarantor for any of
Lessee's or Guarantor's assets, the institution by or against Lessee or any
Guarantor of any formal or informal proceeding for dissolution, liquidation,
settlement of claims against or winding up of the affairs of Lessee or any
Guarantor, provided that in the case of all such involuntary proceedings, same
--------
are not dismissed within sixty (60) days after commencement; or (vii) the making
by Lessee or any Guarantor of a transfer of all or substantially all of Lessee's
or Guarantor's assets or inventory not in the ordinary course of business.
(b) Remedies. If any Event of Default shall have occurred:
--------
(i) Lessor may proceed by appropriate court action or actions
either at law or in equity to enforce performance by Lessee, of the applicable
covenants of this Lease, or to recover damages therefor; or
(ii) Lessee will, without demand, on the next rent payment date
following the Event of Default, pay to Lessor as liquidated damages which the
parties agree are fair and reasonable under the circumstances existing at the
time this Lease is entered into, and not as a penalty, an amount equal to the
Casualty Value of the Equipment set forth in Exhibit C together with any rent or
other amounts past due and owing by Lessee hereunder; and
(iii) Lessor may, without notice to or demand upon Lessee;
(a) Take possession of the Equipment and lease or sell the
same or any portion thereof, for such period, amount, and to such entity as
Lessor shall elect. The proceeds of such lease or sale will be applied by Lessor
(A) first, to pay all costs and expenses, including reasonable legal fees and
disbursements, incurred by Lessor as a result of the default and the exercise of
its remedies with respect thereto, (B) second, to pay Lessor an amount equal to
any unpaid rent or other amounts past due and payable plus the Casualty Value,
to the extent not previously paid by Lessee, and (C) third, to reimburse Lessee
for the Casualty Value to the extent previously paid. Any surplus remaining
thereafter will be retained by Lessor.
(b) Take possession of the Equipment and hold and keep
idle the same or any portion thereof provided that Lessor shall reimburse Lessee
for the Casualty Value to the extent previously paid pursuant to this Section
17.
7
Notwithstanding the remedies set forth herein, in the event the Lessee
has paid to Lessor all amounts set forth in Section 17(b)(ii) above, title to
all such Equipment shall immediately, and without need for further
documentation, vest in the Lessee following the payment of such Casualty Values
and past due rents and amounts, and Lessor agrees to execute any instruments or
documents as reasonably requested by Lessee for Lessee's purposes to evidence
such transfer of title.
Lessee agrees to pay all internal and out-of-pocket costs of Lessor
related to the exercise of its remedies, including direct costs of its in-house
counsel and out-of-pocket legal fees and expenses. At Lessor's request, Lessee
shall assemble the Equipment and make it available to Lessor at such location as
Lessor may reasonably designate. Lessee waives any right it may have to redeem
the Equipment.
Repossession of any or all Equipment shall terminate this Lease and
any Schedule and Lessor shall notify Lessee in writing. Any amount required to
be paid under this Section shall be increased by a service charge at the rate of
1.5% per month, or the highest rate of interest permitted by applicable law,
whichever is less, accruing from the date the Casualty Value or other amounts
are payable hereunder until such amounts are paid.
None of the above remedies is intended to be exclusive, but each is
cumulative and in addition to any other remedy available to Lessor, and all may
be enforced separately or concurrently.
18. LATE PAYMENTS. Lessee shall pay to Lessor an amount equal to the
greater of 10% per month of all amounts owed Lessor by Lessee which are not paid
when due or $100, but in no event an amount greater than the highest rate
permitted by applicable law. If such funds have not been received by Lessor at
Lessor's place of business or by Lessor's designated agent by the date such
funds are due under this Lease, Lessor shall xxxx Lessee for such charges.
Lessee acknowledges that invoices for rentals due hereunder are sent by Lessor
for Lessee's convenience only. Lessee's non-receipt of an invoice will not
relieve Lessee of its obligation to make rent payments hereunder.
19. LESSOR'S EXPENSE. Lessee shall pay Lessor all costs and expenses
including reasonable attorney's fees and the fees of the collection agencies,
incurred by Lessor in enforcing any of the terms, conditions or provisions
hereof.
20. OWNERSHIP; PERSONAL PROPERTY. The Equipment shall be and remain
personal property of Lessor, and Lessee shall have no right, title or interest
therein or thereto except as expressly set forth in this Lease, notwithstanding
the manner in which it may be attached or affixed to real property, and upon
termination or expiration of the Lease term, Lessee shall have the duty and
Lessor shall have the right to remove the Equipment from the premises where the
same be located whether or not affixed or attached to the real property or any
building, at the cost and expense of Lessee.
21. ALTERATIONS; ATTACHMENTS. No alterations or attachments shall be
made to the Equipment without Lessor's prior written consent, which shall not be
given for changes that will affect the reliability and utility of the Equipment
or which cannot be
8
removed without damage to the Equipment, or which in any way affect the value of
the Equipment for purposes of resale or re-lease.
22. FINANCING STATEMENT. Lessee will execute financing statements
with respect to any item of Equipment under this Lease pursuant to the Uniform
Commercial Code. Lessee authorizes Lessor to file financing statements with
respect to any item of Equipment under this Lease signed only by Lessor (where
such authorization is permitted by law) at all places where Lessor deems
necessary.
23. MISCELLANEOUS. (a) Lessee shall make available to Lessor such
corporate resolutions and financial statements that Lessor may reasonably
request from time to time. (b) Lessee represents that the Equipment is being
leased hereunder for business purposes. (c) Time is of the essence with respect
to this Lease. (d) Lessee shall keep its books and records in accordance with
generally accepted accounting principles and practices consistently applied and
shall deliver to Lessor its annual audited financial statements, unaudited
monthly financial statements and signed by an officer of Lessee and such other
unaudited financial statements as may be reasonably requested by Lessor.
24. NOTICES. All notices hereunder shall be in writing, by registered
mail, or reliable messenger or delivery service and shall be directed, as the
case may be, to Lessor at 0000 Xxxxxx Xxxxxxxxx, Xxx Xxxxxx, Xxxxxxxxxx 00000,
Attention: Asset Management, and to Lessee at 000 Xxxxxxx Xxxxxx, Xxxx Xxxx, XX
00000, Attention: Xxxxxxx Xxxxxxxx.
25. ENTIRE AGREEMENT. Lessee acknowledges that Lessee has read this
Lease, understands it and agrees to be bound by its terms, and further agrees
that it and each Schedule constitute the entire agreement between Lessor and
Lessee with respect to the subject matter hereof and supersedes all previous
agreements, promises, or representations. The terms and conditions hereof shall
prevail notwithstanding any variance with the terms of any purchase order
submitted by the Lessee with respect to any Equipment covered hereby.
26. AMENDMENT. This Lease may not be changed, altered or modified
except by an instrument in writing signed by an officer of the Lessor and the
Lessee.
27. WAIVER. Any failure of Lessor to require strict performance by
Lessee or any waiver by Lessor of any provision herein shall constitute a
consent or waiver of such provision, but shall not be construed as a consent or
waiver of any other breach of any other provision.
28. SEVERABILITY. If any provision of this Lease is held invalid,
such invalidity shall not affect any other provisions hereof.
29. JURISDICTION. This Lease shall be governed by and construed under
the laws of the State of California. It is agreed that exclusive jurisdiction
and venue for any legal action between the parties arising out of this Lease
shall be in the Superior Court for Marin County, California, or, in cases where
Federal diversity jurisdiction is available' in the United States District Court
for the Northern District of California.
9
30. NATURE OF TRANSACTION. Lessor makes no representation whatsoever,
express or implied, concerning the legal character of the transaction evidenced
hereby, for tax or any other purpose.
31. SECURITY INTEREST. (a) One executed copy of the Lease will be
marked "Original" and all other counterparts will be duplicates. To the extent,
if any, that this Lease constitutes chattel paper (as such term is defined in
the Uniform Commercial Code as in effect in any applicable jurisdiction) no
security interest in the lease may be created in any documents other than the
"Original." (b) There shall be only one original of each Schedule and it shall
be marked "Original, n and all other counterparts will be duplicates. To the
extent, if any, that any Schedule(s) to this Lease constitutes chattel paper (or
as such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction) no security interest in any Schedule(s) may be created
in any documents other than the "Original."
32. SUSPENSION OF OBLIGATIONS. The obligations of Lessor hereunder
will be suspended to the extent that it is hindered or prevented from complying
therewith because of labor disturbances, including but not limited to strikes
and lockouts, acts of God, fires, storms, accidents, failure of the manufacturer
to deliver any item of Equipment, governmental regulations or interference, or
any cause whatsoever not within the sole and exclusive control of Lessor.
33. SOFTWARE. For the term of this Lease, and so long as no Event of
Default has occurred and is continuing, Lessor hereby assigns to Lessee all of
Lessor's rights under any License Agreement executed by Lessor in connection
with the Equipment (except for any right of Lessor to be reimbursed for the
License Fee). Lessee agrees to be bound by the provisions of any such License
Agreement and to perform all obligations of Lessor (except Lessor's payment
obligations) thereunder. Lessee acknowledges that all of Lessee's obligations
under the Lease with respect to the Equipment will apply equally to the
software, including but not limited to Lessee's obligation to pay rent to
Lessor.
34. COMMITMENT FEE. Lessee has paid to Lessor a commitment fee
("Fee") of $10,000. The Fee shall be applied by Lessor first to reimburse Lessor
for all out-of-pocket UCC search costs, inspections and appraisal fees incurred
by Lessor, and then proportionally to the first month's rent for each Schedule
hereunder in the proportion that the purchase price of the Equipment leased
pursuant to the Schedule bears to Lessor's entire commitment. However, the
portion of the Fee which is not applied to rental shall be non-refundable except
if Lessor defaults in its obligations pursuant to Section 3.
35. FINANCE LEASE. The parties agree that this lease is a "Finance
Lease" as defined by section 10-103(a)(7) of the California Commercial Code
(Cal.Com.C.). Lessee has reviewed and approved any written Supply Contract (as
defined by Cal.Com.C. Section 10-103(a)(25)) covering Equipment purchased from
the "Supplier" (as defined by Cal.Com.C. Section 10-103(a)(24)) thereof for
lease to Lessee or (b) that Lessor has informed or advised Lessee, in writing,
either previously or by this Lease of the following: (i) the identity of the
Supplier; (ii) that the Lessee may have rights under the Supply Contract; and
(iii) that the Lessee may contact the Supplier for a description of any such
rights Lessee may have under the Supply Contract.
36. PURCHASE OR RENEWAL REQUIREMENT FOR ALL SCHEDULES TO MASTER
EQUIPMENT LEASE. At the expiration of the Initial Term for Schedule No. 1, and
notwithstanding anything to the contrary in the Lease, upon at least 90 days
prior written notice to Lessor, Lessee shall either:
No. 1
-----
Purchase AS-IS, WHERE-IS all, but not less than all, of the Equipment
covered under all Schedules to this Lease at the expiration of the
Initial Term for each such Schedule for an amount equal to twenty
percent (20%) of the Equipment's original purchase price, whereupon
Lessor shall issue to Lessee a Xxxx of Sale for the Equipment
transferring it to Lessee without any representation or warranty
whatsoever, or
No. 2
-----
Extend the Initial Term of all Schedules to this Lease for an
additional twelve (12) months ("Renewal Term") commencing with the end
of the Initial Term of each Schedule at a rate of 1.9% per month of
the Equipment's original purchase price followed by an option to
purchase all, but not less than all, the Equipment, AS-IS, WHERE-IS,
for $1.00. Upon expiration of each Renewal Term, Lessor shall issue to
Lessee a Xxxx of Sale for the Equipment under the applicable Schedule
transferring it to Lessee without any representation or warranty
whatsoever.
In the event Lessee does not provide 90 days prior written notice as specified
above, Lessee shall be deemed to have selected No. 1 above for all Schedules to
the Lease.
Lessee shall be responsible for all applicable taxes in connection with any
purchase of Equipment by Lessee.
IN WITNESS WHEREOF, the parties hereto have executed this Lease.
PHOENIX LEASING INCORPORATED INTERNET TRAVEL NETWORK
By:_________________________ By:____________________________
Title:______________________ Title:_________________________
Headquarters Location:
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
County of Santa Xxxxx
Exhibit A - Closing Memorandum
11
ADDITIONAL COMMITMENT SCHEDULE
Schedule (Additional Commitment) No. 05
to Lease No. 0047 dated as of December 1, 1996
Between INTERNET TRAVEL NETWORK
and PHOENIX LEASING INCORPORATED
A. Description and Purchase Price of Equipment
-------------------------------------------
Description of
Equipment
(quantity, model Street Address
and serial number) Purchase Price Rent Mft./Vendor City, State and County
------------------ -------------- ---- ----------- ----------------------
See Exhibit A attached hereto.
Total: $505,750.26 $ 5,507.50 Months 1-12
$18,459.88 Months 13-42
B. Terms
-----
Initial Term: The Initial Term shall commence on the date the
Equipment is received, installed and accepted for
use, as shown on the Acceptance Notice, and
continue for 42 full months after the "Rent Start
Date."
Rent Start Date: This shall be the first day of the month following
the month during which the Initial Term commences;
provided, however, that if the Equipment is
accepted on the first day of the month, the Rent
Start Date shall commence on the same day that the
Initial Term commences.
Initial Rental Amount Per Month: $5,507.50, for Months 1 through 12, plus
applicable taxes, and $18,459.88, for Months 13 through 42, plus applicable
taxes, which amount shall be adjusted in accordance with the Rate Factors and
Terms shown hereinbelow:
Lease Rate Factor (as a percentage of Equipment's original Purchase Price):
Months 1-12: 1.00%
Months 13-42 3.65%
Monthly Rental Payments in advance.
Initial Rent Due: Payable on the Rent Start Date shall be (1) the
first Monthly Rental Amount including any sales or
use tax and (2) an amount equal to 1/30th of the
Monthly Rental Amount using a rate of 1.00%
multiplied by the number of days, if any, between
(and including) the date the Initial Term
commences and (but not including) the Rent Start
Date.
Schedule (Additional Commitment) No. 05
to Lease No. 0047 dated as of December 1, 1996
Between INTERNET TRAVEL NETWORK
and PHOENIX LEASING INCORPORATED
C. Invoice Information: Lessee's and Lessor's addresses for invoice purposes
-------------------
for the Equipment on the Schedule shall be as follows:
Lessor's Invoice Address: Remit Monthly Rental Amount To:
------------------------- ------------------------------
INTERNET TRAVEL NETWORK PHOENIX LEASING INCORPORATED
000 Xxxxxxx Xxxxxx X.X. Xxx 000000
Xxxx Xxxx, XX 00000 Xxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx
D. Casualty Values: See attachment hereto.
---------------
E. Special Provisions: 1. Lessor's payment for Equipment hereunder is
------------------
conditioned on Lessor's satisfaction that there has been no adverse change in
Lessee's financial condition subsequent to initial credit approval, 2. Sale
Leaseback Addendum, and 3. Purchase or Renewal Requirement set forth in Section
36A of the Lease, as amended, and repeated for convenience below.
36A. PURCHASE OR RENEWAL REQUIREMENT FOR ALL ADDITIONAL COMMITMENT
SCHEDULES TO MASTER EQUIPMENT LEASE. At the expiration of the Initial Term for
Schedule No. 1, and notwithstanding anything to the contrary in the Lease, upon
at least 90 days prior written notice to Lessor, Lessee shall either:
No. 1: Purchase AS-IS, WHERE-IS all, but not less than all, of the
-----
Equipment covered under all Schedules to this Lease at the expiration of the
Initial Term for each such Schedule for an amount equal to fifteen (15%) of the
Equipment's original purchase price, whereupon Lessor shall issue to Lessee a
Xxxx of Sale for the Equipment transferring it to Lessee without any
representation or warranty whatsoever, or
No. 2: Extend the Initial Term of all Schedules to this Lease for an
-----
additional twelve (12) months ("Renewal Term") commencing with the end of the
Initial Term of each Schedule at a rate of 1.60% per month of the Equipment's
original purchase price followed by an option to purchase all, but not less than
all, the Equipment, AS-IS, WHERE-IS, for $1.00. Upon expiration of each Renewal
Term, Lessor shall issue to Lessee a Xxxx of Sale for the Equipment under the
applicable Schedule transferring it to Lessee without any representation or
warranty whatsoever.
In the event Lessee does not provide 90 days prior written notice as specified
above, Lessee shall be deemed to have selected No. 1 above for all Schedules to
the Lease.
Lessee shall be responsible for all applicable taxes in connection with any
purchase of Equipment by Lessee.
LESSOR AND LESSEE AGREE THAT THIS SCHEDULE SHALL CONSTITUTE A LEASE OF THE
EQUIPMENT DESCRIBED ABOVE, SUBJECT TO THE TERMS AND
2
Schedule (Additional Commitment) No. 03
to Lease No. 0047 dated as of December 1, 1996
Between INTERNET TRAVEL NETWORK
and PHOENIX LEASING INCORPORATED
CONDITIONS OF THIS SCHEDULE AND OF THE MASTER EQUIPMENT LEASE DATED DECEMBER 1,
1996, AS AMENDED, BETWEEN LESSEE AND LESSOR. THE TERMS AND CONDITIONS OF SUCH
MASTER EQUIPMENT LEASE ARE HEREBY INCORPORATED BY REFERENCE AND MADE A PART
HEREOF TO THE SAME EXTENT AS IF SUCH TERMS AND CONDITIONS WERE SET FORTH IN FULL
HEREIN.
PHOENIX LEASING INCORPORATED INTERNET TRAVEL NETWORK
By: _________________________ By: ______________________________
Name: Xxxxxx Xxxxxxxx Name: Xx Xxxxxx
------------------------- ------------------------------
Title: Contract Admin. Title: Secretary
------------------------- ------------------------------
Date: 2/20/98 Date: 2/19/98
------------------------- ------------------------------
3
ADDITIONAL COMMITMENT SCHEDULE
Schedule (Additional Commitment) No. 04
to Lease No. 0047 dated as of December 1, 1996
Between INTERNET TRAVEL NETWORK
and PHOENIX LEASING INCORPORATED
A. Description and Purchase Price of Equipment
-------------------------------------------
Description of
Equipment
(quantity, model Street Address
and serial number) Purchase Price Rent Mft./Vendor City, State and County
--------------------- -------------- ---- ----------- ----------------------
See Exhibit A attached hereto.
Total: $ 473,907.37 $ 4,739.07 Months 1-12
$17,297.62 Months 13-42
B. Terms
-----
Initial Term: The Initial Term shall commence on the date the
Equipment is received, installed and accepted for use,
as shown on the Acceptance Notice, and continue for 42
full months after the "Rent Start Date."
Rent Start Date: This shall be the first day of the month following the
month during which the Initial Term commences; provided,
however, that if the Equipment is accepted on the first
day of the month, the Rent Start Date shall commence on
the same day that the Initial Term commences.
Initial Rental Amount Per Month: $4,739.07, for Months 1 through 12, plus
applicable taxes, and $17,297.62, for Months 13 through 42, plus applicable
taxes, which amount shall be adjusted in accordance with the Rate Factors and
Terms shown hereinbelow:
Lease Rate Factor (as a percentage of Equipment's original Purchase Price):
Months 1-12: 1.00%
Months 13-42: 3.65%
Monthly Rental Payments in advance.
Initial Rent Due: Payable on the Rent Start Date shall be (1) the first
Monthly Rental Amount including any sales or use tax and
(2) an amount equal to 1/30th of the Monthly Rental
Amount using a rate of 1.00% multiplied by the number of
days, if any, between (and including) the date the
Initial Term commences and (but not including) the Rent
Start Date.
Schedule (Additional Commitment) No. 04
to Lease No. 0047 dated as of December 1, 1996
Between INTERNET TRAVEL NETWORK
and PHOENIX LEASING INCORPORATED
C. Invoice Information: Lessee's and Lessor's addresses for invoice purposes
-------------------
for the Equipment on the Schedule shall be as follows:
Lessor's Invoice Address: Remit Monthly Rental Amount To:
------------------------ ------------------------------
INTERNET TRAVEL NETWORK PHOENIX LEASING
000 Xxxxxxx Xxxxxx XXXXXXXXXXXX
Xxxx Xxxx, XX 00000 P.O. Box 200432
Attention: Xxxxxxx Xxxxxxxx Xxxxxx, XX 00000-0000
D. Casualty Values: See attachment hereto.
----------------
E. Special Provisions: 1. Lessor's payment for Equipment hereunder is
-------------------
conditioned on Lessor's satisfaction that there has been no adverse change in
Lessee's financial condition subsequent to initial credit approval, 2. Sale
Leaseback Addendum, and 3. Purchase or Renewal Requirement set forth in Section
36A of the Lease, as amended, and repeated for convenience below.
36A. PURCHASE OR RENEWAL REQUIREMENT FOR ALL ADDITIONAL COMMITMENT
SCHEDULES TO MASTER EQUIPMENT LEASE. At the expiration of the Initial Term for
Schedule No. 1, and notwithstanding anything to the contrary in the Lease, upon
at least 90 days prior written notice to Lessor, Lessee shall either:
No. 1: Purchase AS-IS, WHERE-IS all, but not less than all, of the
-----
Equipment covered under all Schedules to this Lease at the expiration of the
Initial Term for each such Schedule for an amount equal to fifteen (15%) of the
Equipment's original purchase price, whereupon Lessor shall issue to Lessee a
Xxxx of Sale for the Equipment transferring it to Lessee without any
representation or warranty whatsoever, or
No. 2: Extend the Initial Term of all Schedules to this Lease for an
-----
additional twelve (12) months ("Renewal Term") commencing with the end of the
Initial Term of each Schedule at a rate of 1.60% per month of the Equipment's
original purchase price followed by an option to purchase all, but not less than
all, the Equipment, AS-IS, WHERE-IS, for $1.00. Upon expiration of each Renewal
Term, Lessor shall issue to Lessee a Xxxx of Sale for the Equipment under the
applicable Schedule transferring it to Lessee without any representation or
warranty whatsoever.
In the event Lessee does not provide 90 days prior written notice as specified
above, Lessee shall be deemed to have selected No. 1 above for all Schedules to
the Lease.
Lessee shall be responsible for all applicable taxes in connection with any
purchase of Equipment by Lessee.
LESSOR AND LESSEE AGREE THAT THIS SCHEDULE SHALL CONSTITUTE A LEASE OF THE
EQUIPMENT DESCRIBED ABOVE, SUBJECT TO THE TERMS AND
5
Schedule (Additional Commitment) No. 04
to Lease No. 0047 dated as of December 1, 1996
Between INTERNET TRAVEL NETWORK
and PHOENIX LEASING INCORPORATED
CONDITIONS OF THIS SCHEDULE AND OF THE MASTER EQUIPMENT LEASE DATED DECEMBER 1,
1996, AS AMENDED, BETWEEN LESSEE AND LESSOR. THE TERMS AND CONDITIONS OF SUCH
MASTER EQUIPMENT LEASE ARE HEREBY INCORPORATED BY REFERENCE AND MADE A PART
HEREOF TO THE SAME EXTENT AS IF SUCH TERMS AND CONDITIONS WERE SET FORTH IN FULL
HEREIN.
PHOENIX LEASING INCORPORATED INTERNET TRAVEL NETWORK
By: ________________________ By: __________________________
Name: Xxxxxx Xxxxxxxx Name: Xx Xxxxxx
------------------------ --------------------------
Title: Contract Admin. Title: Secretary
------------------------ --------------------------
Date: 2/20/98 Date: 2/19/98
------------------------ --------------------------
6
ADDITIONAL COMMITMENT SCHEDULE
Schedule (Additional Commitment) No. 05
to Lease No. 0047 dated as of December 1, 1996
Between INTERNET TRAVEL NETWORK
and PHOENIX LEASING INCORPORATED
A. Description and Purchase Price of Equipment
Description of
Equipment
(quantity, model Street Address
and serial number) Purchase Price Rent Mft./Vendor City, State and County
------------------ -------------- ---- ----------- ----------------------
See Exhibit A attached hereto.
Total: $505,750.26 $ 5,507.50 Months 1-12
$18,459.88 Months 13-42
B. Terms
-----
Initial Term: The Initial Term shall commence on the date the
Equipment is received, installed and accepted for
use, as shown on the Acceptance Notice, and
continue for 42 full months after the "Rent Start
Date."
Rent Start Date: This shall be the first day of the month following
the month during which the Initial Term commences;
provided, however, that if the Equipment is
accepted on the first day of the month, the Rent
Start Date shall commence on the same day that the
Initial Term commences.
Initial Rental Amount Per Month: $5,507.50, for Months 1 through 12, plus
applicable taxes, and $18,459.88, for Months 13 through 42, plus applicable
taxes, which amount shall be adjusted in accordance with the Rate Factors and
Terms shown hereinbelow:
Lease Rate Factor (as a percentage of Equipment's original Purchase Price):
Months 1-12: 1.00%
Months 13-42 3.65%
Monthly Rental Payments in advance.
Initial Rent Due: Payable on the Rent Start Date shall be (1) the
first Monthly Rental Amount including any sales or
use tax and (2) an amount equal to 1/30th of the
Monthly Rental Amount using a rate of 1.00%
multiplied by the number of days, if any, between
(and including) the date the Initial Term
commence3s and (but not including) the Rent Start
Date.
Schedule (Additional Commitment) No. 05
to Lease No. 0047 dated as of December 1, 1996
Between INTERNET TRAVEL NETWORK
and PHOENIX LEASING INCORPORATED
C. Invoice Information: Lessee's and Lessor's addresses for invoice purposes
-------------------
for the Equipment on the Schedule shall be as follows:
Lessor's Invoice Address: Remit Monthly Rental Amount To:
------------------------- ------------------------------
INTERNET TRAVEL NETWORK PHOENIX LEASING INCORPORATED
000 Xxxxxxx Xxxxxx X.X. Xxx 000000
Xxxx Xxxx, XX 00000 Xxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx
D. Casualty Values: See attachment hereto.
---------------
E. Special Provisions: 1. Lessor's payment for Equipment hereunder is
------------------
conditioned on Lessor's satisfaction that there has been no adverse change in
Lessee's financial condition subsequent to initial credit approval, 2. Sale
Leaseback Addendum, and 3. Purchase or Renewal Requirement set forth in Section
36A of the Lease, as amended, and repeated for convenience below.
36A. PURCHASE OR RENEWAL REQUIREMENT FOR ALL ADDITIONAL COMMITMENT
SCHEDULES TO MASTER EQUIPMENT LEASE. At the expiration of the Initial Term for
Schedule No. 1, and notwithstanding anything to the contrary in the Lease, upon
at least 90 days prior written notice to Lessor, Lessee shall either:
No. 1: Purchase AS-IS, WHERE-IS all, but not less than all, of the
-----
Equipment covered under all Schedules to this Lease at the expiration of the
Initial Term for each such Schedule for an amount equal to fifteen (15%) of the
Equipment's original purchase price, whereupon Lessor shall issue to Lessee a
Xxxx of Sale for the Equipment transferring it to Lessee without any
representation or warranty whatsoever, or
No. 2: Extend the Initial Term of all Schedules to this Lease for an
-----
additional twelve (12) months ("Renewal Term") commencing with the end of the
Initial Term of each Schedule at a rate of 1.60% per month of the Equipment's
original purchase price followed by an option to purchase all, but not less than
all, the Equipment, AS-IS, WHERE-IS, for $1.00. Upon expiration of each Renewal
Term, Lessor shall issue to Lessee a Xxxx of Sale for the Equipment under the
applicable Schedule transferring it to Lessee without any representation or
warranty whatsoever.
In the event Lessee does not provide 90 days prior written notice as specified
above, Lessee shall be deemed to have selected No. 1 above for all Schedules to
the Lease.
Lessee shall be responsible for all applicable taxes in connection with any
purchase of Equipment by Lessee.
LESSOR AND LESSEE AGREE THAT THIS SCHEDULE SHALL CONSTITUTE A LEASE OF THE
EQUIPMENT DESCRIBED ABOVE, SUBJECT TO THE TERMS AND
8
Schedule (Additional Commitment) No. 05
to Lease No. 0047 dated as of December 1, 1996
Between INTERNET TRAVEL NETWORK
and PHOENIX LEASING INCORPORATED
CONDITIONS OF THIS SCHEDULE AND OF THE MASTER EQUIPMENT LEASE DATED DECEMBER 1,
1996, AS AMENDED, BETWEEN LESSEE AND LESSOR. THE TERMS AND CONDITIONS OF SUCH
MASTER EQUIPMENT LEASE ARE HEREBY INCORPORATED BY REFERENCE AND MADE A PART
HEREOF TO THE SAME EXTENT AS IF SUCH TERMS AND CONDITIONS WERE SET FORTH IN FULL
HEREIN.
PHOENIX LEASING INCORPORATED INTERNET TRAVEL NETWORK
By: _________________________ By: ______________________________
Name: Xxxxxx Xxxxxxxx Name: Xx Xxxxxx
------------------------- ------------------------------
Title: Contract Admin. Title: Secretary
------------------------- ------------------------------
Date: 2/20/98 Date: 2/19/98
------------------------- ------------------------------
9
ADDITIONAL COMMITMENT SCHEDULE
Schedule (Additional Commitment) No. 06
to Lease No. 0047 dated as of December 1, 1996
Between INTERNET TRAVEL NETWORK
and PHOENIX LEASING INCORPORATED
A. Description and Purchase Price of Equipment
-------------------------------------------
Description of
Equipment
(quantity, model Street Address
and serial number) Purchase Price Rent Mft./Vendor City, State and County
----------------- -------------- ---- ----------- ----------------------
See Exhibit A attached hereto.
Total: $128,378.00 $1,283.78 Months 1-12
$4,685.80 Months 13-42
B. Terms
-----
Initial Term: The Initial Term shall commence on the date the Equipment is
received, installed and accepted for use, as shown on the
Acceptance Notice, and continue for 42 full months after the
"Rent Start Date."
Rent Start Date: This shall be the first day of the month following the month
during which the Initial Term commences; provided, however,
that if the Equipment is accepted on the first day of the
month, the Rent Start Date shall commence on the same day
that the Initial Term commences.
Initial Rental Amount Per Month: $1,283.78, for Months 1 through 12, plus
applicable taxes, and $4,685.80, for Months 13 through 42, plus applicable
taxes, which amount shall be adjusted in accordance with the Rate Factors and
Terms shown hereinbelow:
Lease Rate Factor (as a percentage of Equipment's original Purchase Price):
Months 1-12: 1.00%
Months 13-42 3.65%
Monthly Rental Payments in advance.
Initial Rent Due: Payable on the Rent Start Date shall be (1) the first
Monthly Rental Amount including any sales or use tax and (2)
an amount equal to 1/30th of the Monthly Rental Amount using
a rate of 1.00% multiplied by the number of days, if any,
between (and including) the date the Initial Term commence3s
and (but not including) the Rent Start Date.
Schedule (Additional Commitment) No. 06
to Lease No. 0047 dated as of December 1, 1996
Between INTERNET TRAVEL NETWORK
and PHOENIX LEASING INCORPORATED
C. Invoice Information: Lessee's and Lessor's addresses for invoice purposes
------------------
for the Equipment on the Schedule shall be as follows:
Lessor's Invoice Address: Remit Monthly Rental Amount To:
------------------------ -----------------------------
INTERNET TRAVEL NETWORK PHOENIX LEASING INCORPORATED
000 Xxxxxxx Xxxxxx X.X. Xxx 000000
Xxxx Xxxx, XX 00000 Xxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx
D. Casualty Values: See attachment hereto.
---------------
E. Special Provisions: 1. Lessor's payment for Equipment hereunder is
-------------------
conditioned on Lessor's satisfaction that there has been no adverse change in
Lessee's financial condition subsequent to initial credit approval, 2. Sale
Leaseback Addendum, and 3. Purchase or Renewal Requirement set forth in Section
36A of the Lease, as amended, and repeated for convenience below.
36A. PURCHASE OR RENEWAL REQUIREMENT FOR ALL ADDITIONAL COMMITMENT
SCHEDULES TO MASTER EQUIPMENT LEASE. At the expiration of the Initial Term for
Schedule N. 1, and notwithstanding anything to the contrary in the Lease, upon
at least 90 days prior written notice to Lessor, Lessee shall either:
No. 1: Purchase AS-IS, WHERE-IS all, but not less than all, of the
-----
Equipment covered under all Schedules to this Lease at the expiration of the
Initial Term for each such Schedule for an amount equal to fifteen (15%) of the
Equipment's original purchase price, whereupon Lessor shall issue to Lessee a
Xxxx of Sale for the Equipment transferring it to Lessee without any
representation or warranty whatsoever, or
No. 2: Extend the Initial Term of all Schedules to this Lease for an
-----
additional twelve (12) months ("Renewal Term") commencing with the end of the
Initial Term of each Schedule at a rate of 1.60% per month of the Equipment's
original purchase price followed by an option to purchase all, but not less than
all, the Equipment, AS-IS, WHERE-IS, for $1.00. Upon expiration of each Renewal
Term, Lessor shall issue to Lessee a Xxxx of Sale for the Equipment under the
applicable Schedule transferring it to Lessee without any representation or
warranty whatsoever.
In the event Lessee does not provide 90 days prior written notice as specified
above, Lessee shall be deemed to have selected No. 1 above for all Schedules to
the Lease.
Lessee shall be responsible for all applicable taxes in connection with any
purchase of Equipment by Lessee.
LESSOR AND LESSEE AGREE THAT THIS SCHEDULE SHALL CONSTITUTE A LEASE OF THE
EQUIPMENT DESCRIBED ABOVE, SUBJECT TO THE TERMS AND
11
Schedule (Additional Commitment) No. 06
to Lease No. 0047 dated as of December 1, 1996
Between INTERNET TRAVEL NETWORK
and PHOENIX LEASING INCORPORATED
CONDITIONS OF THIS SCHEDULE AND OF THE MASTER EQUIPMENT LEASE DATED DECEMBER 1,
1996, AS AMENDED, BETWEEN LESSEE AND LESSOR. THE TERMS AND CONDITIONS OF SUCH
MASTER EQUIPMENT LEASE ARE HEREBY INCORPORATED BY REFERENCE AND MADE A PART
HEREOF TO THE SAME EXTENT AS IF SUCH TERMS AND CONDITIONS WERE SET FORTH IN FULL
HEREIN.
PHOENIX LEASING INCORPORATED INTERNET TRAVEL NETWORK
By: ____________________________ By: _______________________________
Name: Xxxxxx Xxxxxxxx Name: Xx Xxxxxx
---------------------------- -------------------------------
Title: Contract Admin. Title: Secretary
---------------------------- ------------------------------
Date: 2/20/98 Date: 2/19/98
---------------------------- ------------------------------
12
