{"id":42544,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/master-lease-agreement-comdisco-inc-and-intraware-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"master-lease-agreement-comdisco-inc-and-intraware-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/master-lease-agreement-comdisco-inc-and-intraware-inc.html","title":{"rendered":"Master Lease Agreement &#8211; Comdisco Inc. and Intraware Inc."},"content":{"rendered":"<pre>                                                          M A S T E R  L E A S E  A G R E E M E N T\n\nMASTER LEASE AGREEMENT (the 'Master Lease') dated September  9, 1998 by and \nbetween COMDISCO, INC. ('Lessor') and INTRAWARE, INC. ('Lessee').\n\nIN CONSIDERATION of the mutual agreements described below, the parties agree \nas follows (all capitalized terms are defined in Section 14.18):\n\n1.  PROPERTY LEASED.\n\nLessor leases to Lessee all of the Equipment described on each Summary \nEquipment Schedule. In the event of a conflict, the terms of the applicable \nSchedule prevail over this Master Lease.\n\n2.  TERM.\n\nOn the Commencement Date, Lessee will be deemed to accept the Equipment, will \nbe bound to its rental obligations for each item of Equipment and the term of \na Summary Equipment Schedule will begin and continue through the Initial Term \nand thereafter until terminated by either party upon prior written notice \nreceived during the Notice Period. No termination may be effective prior to \nthe expiration of the Initial Term.\n\n3.  RENT AND PAYMENT.\n\nRent is due and payable in advance on the first day of each Rent Interval at \nthe address specified in Lessor's invoice. Interim Rent is due and payable \nwhen invoiced. If any payment is not made when due, Lessee will pay a Late \nCharge on the overdue amount. Upon Lessee's execution of each Schedule, \nLessee will pay Lessor the Advance specified on the Schedule. The Advance \nwill be credited towards the final Rent payment if Lessee is not then in \ndefault. No interest will be paid on the Advance.\n\n4.  SELECTION; WARRANTY AND DISCLAIMER OF WARRANTIES.\n\n4.1 SELECTION. Lessee acknowledges that it has selected the Equipment and \ndisclaims any reliance upon statements made by the Lessor, other than as set \nforth in the Schedule.\n\n4.2 WARRANTY AND DISCLAIMER OF WARRANTIES. Lessor warrants to Lessee that, so \nlong as Lessee is not in default, Lessor will not disturb Lessee's quiet and \npeaceful possession, and unrestricted use of the Equipment. To the extent \npermitted by the manufacturer, Lessor assigns to Lessee during the term of \nthe Summary Equipment Schedule any manufacturer's warranties for the \nEquipment. LESSOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED AS TO ANY \nMATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY OF THE \nEQUIPMENT OR ITS FITNESS FOR A PARTICULAR PURPOSE. Lessor is not responsible \nfor any liability, claim, loss, damage or expense of any kind (including \nstrict liability in tort) caused by the Equipment except for any loss or \ndamage caused by the willful misconduct or negligent acts of Lessor. In no \nevent is Lessor responsible for special, incidental or consequential damages. \n\n5.  TITLE; RELOCATION OR SUBLEASE; AND ASSIGNMENT.\n\n5.1 TITLE. Lessee holds the Equipment subject and subordinate to the rights \nof the Owner, Lessor, any Assignee and any Secured Party. Lessee authorizes \nLessor, as Lessee's agent, and at Lessor's expense, to prepare, execute and \nfile in Lessee's name precautionary Uniform Commercial Code financing \nstatements showing the interest of the Owner, Lessor, and any Assignee or \nSecured Party in the Equipment and to insert serial numbers in Summary \nEquipment Schedules as appropriate. Lessee will, at its expense, keep the \nEquipment free and clear from any liens or encumbrances of any kind (except \nany caused by Lessor) and will indemnify and hold the Owner, Lessor, any \nAssignee and Secured Party harmless from and against any loss caused by \nLessee's failure to do so, except where such is caused by Lessor.\n\n5.2 RELOCATION OR SUBLEASE. Upon prior written notice, Lessee may relocate \nEquipment to any location within the continental United States provided (i) \nthe Equipment will not be used by an entity exempt from federal income tax, \nand (ii) all additional costs (including any administrative fees, additional \ntaxes and insurance coverage) are reconciled and promptly paid by Lessee.\n\nLessee may sublease the Equipment upon the reasonable consent of the Lessor \nand the Secured Party. Such consent to sublease will be granted if: (i) \nLessee meets the relocation requirements set out above, (ii) the sublease is \nexpressly subject and subordinate to the terms of the Schedule, (iii) Lessee \nassigns its rights in the sublease to Lessor and the Secured Party as \nadditional collateral and security, (iv) Lessee's obligation to maintain and \ninsure the Equipment is not altered, (v) all financing statements required to \ncontinue the Secured Party's prior perfected security interest are filed, and \n(vi) Lessee executes sublease documents acceptable to Lessor.\n\nNo relocation or sublease will relieve Lessee from any of its obligations \nunder this Master Lease and the relevant Schedule. \n\n\n                                      -1-\n\n\n5.3 ASSIGNMENT BY LESSOR. The terms and conditions of each Schedule have been \nfixed by Lessor in order to permit Lessor to sell and\/or assign or transfer \nits interest or grant a security interest in each Schedule and\/or the \nEquipment to a Secured Party or Assignee. In that event, the term Lessor will \nmean the Assignee and any Secured Party. However, any assignment, sale, or \nother transfer by Lessor will not relieve Lessor of its obligations to Lessee \nand will not materially change Lessee's duties or materially increase the \nburdens or risks imposed on Lessee. The Lessee consents to and will \nacknowledge such assignments in a written notice given to Lessee. Lessee also \nagrees that:\n\n(a)  The Secured Party will be entitled to exercise all of Lessor's rights, \nbut will not be obligated to perform any of the obligations of Lessor. The \nSecured Party will not disturb Lessee's quiet and peaceful possession and \nunrestricted use of the Equipment so long as Lessee is not in default and the \nSecured Party continues to receive all Rent payable under the Schedule; and\n\n(b)  Lessee will pay all Rent and all other amounts payable to the Secured \nParty, despite any defense or claim which it has against Lessor. Lessee \nreserves its right to have recourse directly against Lessor for any defense \nor claim;\n\n(c)  Subject to and without impairment of Lessee's leasehold rights in the \nEquipment, Lessee holds the Equipment for the Secured Party to the extent of \nthe Secured Party's rights in that Equipment.\n\n6.  NET LEASE; TAXES AND FEES.\n\n6.1 NET LEASE. Each Summary Equipment Schedule constitutes a net lease. \nLessee's obligation to pay Rent and all other amounts due hereunder is \nabsolute and unconditional and is not subject to any abatement, reduction, \nset-off, defense, counterclaim, interruption, deferment or recoupment for any \nreason whatsoever.\n\n6.2 TAXES AND FEES. Lessee will pay when due or reimburse Lessor for all \ntaxes, fees or any other charges (together with any related interest or \npenalties not arising from the negligence of Lessor) accrued for or arising \nduring the term of each Summary Equipment Schedule against Lessor, Lessee or \nthe Equipment by any governmental authority (except only Federal, state, \nlocal and franchise taxes on the capital or the net income of Lessor). Lessor \nwill file all personal property tax returns for the Equipment and pay all \nsuch property taxes due. Lessee will reimburse Lessor for property taxes \nwithin thirty (30) days of receipt of an invoice.\n\n7.  CARE, USE AND MAINTENANCE; INSPECTION BY LESSOR.\n\n7.1 CARE, USE AND MAINTENANCE. Lessee will maintain the Equipment in good \noperating order and appearance, protect the Equipment from deterioration, \nother than normal wear and tear, and will not use the Equipment for any \npurpose other than that for which it was designed. If commercially available \nand considered common business practice for each item of Equipment, Lessee \nwill maintain in force a standard maintenance contract with the manufacturer \nof the Equipment, or another party acceptable to Lessor, and will provide \nLessor with a complete copy of that contract. If Lessee has the Equipment \nmaintained by a party other than the manufacturer or self maintains, Lessee \nagrees to pay any costs necessary for the manufacturer to bring the Equipment \nto then current release, revision and engineering change levels, and to \nre-certify the Equipment as eligible for manufacturer's maintenance at the \nexpiration of the lease term, provided re-certification is available and is \nrequired by Lessor. The lease term will continue upon the same terms and \nconditions until recertification has been obtained.\n     \n7.2 INSPECTION BY LESSOR. Upon reasonable advance notice, Lessee, during \nreasonable business hours and subject to Lessee's security requirements, will \nmake the Equipment and its related log and maintenance records available to \nLessor for inspection.\n\n8.  REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee hereby represents, \nwarrants and covenants that with respect to the Master Lease and each \nSchedule executed hereunder:\n\n(a)  The Lessee is a corporation duly organized and validly existing in good \nstanding under the laws of the jurisdiction of its incorporation, is duly \nqualified to do business in each jurisdiction (including the jurisdiction \nwhere the Equipment is, or is to be, located) where its ownership or lease of \nproperty or the conduct of its business requires such qualification, except \nfor where such lack of qualification would not have a material adverse effect \non the Company's business; and has full corporate power and authority to hold \nproperty under the Master Lease and each Schedule and to enter into and \nperform its obligations under the Master Lease and each Schedule.\n\n(b)  The execution and delivery by the Lessee of the Master Lease and each \nSchedule and its performance thereunder have been duly authorized by all \nnecessary corporate action on the part of the Lessee, and the Master Lease \nand each Schedule are not inconsistent with the Lessee's Articles of \nIncorporation or Bylaws, do not contravene any law or governmental rule, \nregulation or order applicable to it, do not and will not contravene any \nprovision of, or constitute a default under, any indenture, mortgage, \ncontract or other instrument to which it is a party or by which it is bound, \nand the Master Lease and each Schedule constitute legal, valid and binding \nagreements of the Lessee, enforceable in accordance with their terms, subject \nto the effect of applicable bankruptcy and other similar laws affecting the \nrights of creditors generally and rules of law concerning equitable remedies.\n\n\n                                      -2-\n\n\n(c)  There are no actions, suits, proceedings or patent claims pending or, to \nthe knowledge of the Lessee, threatened against or affecting the Lessee in \nany court or before any governmental commission, board or authority which, if \nadversely determined, will have a material adverse effect on the ability of \nthe Lessee to perform its obligations under the Master Lease and each \nSchedule.\n\n(d)  The Equipment is personal property and when subjected to use by the \nLessee will not be or become fixtures under applicable law.\n\n(e)  The Lessee has no material liabilities or obligations, absolute or \ncontingent (individually or in the aggregate), except the liabilities and \nobligations of the Lessee as set forth in the Financial Statements and \nliabilities and obligations which have occurred in the ordinary course of \nbusiness, and which have not been, in any case or in the aggregate, \nmaterially adverse to Lessee's ongoing business.\n\n(f)  To the best of the Lessee's knowledge, the Lessee owns, possesses, has \naccess to, or can become licensed on reasonable terms under all patents, \npatent applications, trademarks, trade names, inventions, franchises, \nlicenses, permits, computer software and copyrights necessary for the \noperations of its business as now conducted, with no known infringement of, \nor conflict with, the rights of others.\n\n(g)  All material contracts, agreements and instruments to which the Lessee \nis a party are in full force and effect in all material respects, and are \nvalid, binding and enforceable by the Lessee in accordance with their \nrespective terms, subject to the effect of applicable bankruptcy and other \nsimilar laws affecting the rights of creditors generally, and rules of law \nconcerning equitable remedies.\n\n9.  DELIVERY AND RETURN OF EQUIPMENT.  \n\nLessee hereby assumes the full expense of transportation and in-transit \ninsurance to Lessee's premises and installation thereat of the Equipment. \nUpon termination (by expiration or otherwise) of each Summary Equipment \nSchedule, Lessee shall, pursuant to Lessor's instructions and at Lessee's \nfull expense (including, without limitation, expenses of transportation and \nin-transit insurance), return the Equipment to Lessor in the same operating \norder, repair, condition and appearance as when received, less normal \ndepreciation and wear and tear. Lessee shall return the Equipment to Lessor \nat 6111 North River Road, Rosemont, Illinois 60018 or at such other address \nwithin the continental United States as directed by Lessor, provided, \nhowever, that Lessee's expense shall be limited to the cost of returning the \nEquipment to Lessor's address as set forth herein. During the period \nsubsequent to receipt of a notice under Section 2, Lessor may demonstrate the \nEquipment's operation in place and Lessee will supply any of its personnel as \nmay reasonably be required to assist in the demonstrations.\n\n10. LABELING.\n\nUpon request, Lessee will mark the Equipment indicating Lessor's interest \nwith labels provided by Lessor. Lessee will keep all Equipment free from any \nother marking or labeling which might be interpreted as a claim of ownership.\n\n11. INDEMNITY.\n\nWith regard to bodily injury and property damage liability only, Lessee will \nindemnify and hold Lessor, any Assignee and any Secured Party harmless from \nand against any and all claims, costs, expenses, damages and liabilities, \nincluding reasonable attorneys' fees, arising out of the ownership (for \nstrict liability in tort only), selection, possession, leasing, operation, \ncontrol, use, maintenance, delivery, return or other disposition of the \nEquipment during the term of this Master Lease or until Lessee's obligations \nunder the Master Lease terminate. However, Lessee is not responsible to a \nparty indemnified hereunder for any claims, costs, expenses, damages and \nliabilities occasioned by the negligent acts of such indemnified party. \nLessee agrees to carry bodily injury and property damage liability insurance \nduring the term of the Master Lease in amounts and against risks customarily \ninsured against by the Lessee on equipment owned by it. Any amounts received \nby Lessor under that insurance will be credited against Lessee's obligations \nunder this Section.\n\n12. RISK OF LOSS.\n\nEffective upon delivery and until the Equipment is returned, Lessee relieves \nLessor of responsibility for all risks of physical damage to or loss or \ndestruction of the Equipment. Lessee will carry casualty insurance for each \nitem of Equipment in an amount not less than the Casualty Value. All policies \nfor such insurance will name the Lessor and any Secured Party as additional \ninsured and as loss payee, and will provide for at least thirty (30) days \nprior written notice to the Lessor of cancellation or expiration, and will \ninsure Lessor's interests regardless of any breach or violation by Lessee of \nany representation, warranty or condition contained in such policies and will \nbe primary without right of contribution from any insurance effected by \nLessor. Upon the execution of any Schedule, the Lessee will furnish \nappropriate evidence of such insurance acceptable to Lessor.\n\nLessee will promptly repair any damaged item of Equipment unless such \nEquipment has suffered a Casualty Loss. Within fifteen (15) days of a \nCasualty Loss, Lessee will provide written notice of that loss to Lessor and \nLessee will, at Lessee's option, either (a) replace the item of Equipment \nwith Like Equipment and marketable title to the Like Equipment will \nautomatically vest in Lessor or (b) pay the Casualty Value and after that \npayment and the payment of all other amounts due and owing with respect to \nthat item of \n\n\n                                     -3-\n\n\n\nEquipment, Lessee's obligation to pay further Rent for the item of Equipment \nwill cease. \n\n13. DEFAULT, REMEDIES AND MITIGATION.\n\n13.1 DEFAULT. The occurrence of any one or more of the following Events of \nDefault constitutes a default under a Summary Equipment Schedule:\n\n(a)  Lessee's failure to pay Rent or other amounts payable by Lessee when due \nif that failure continues for five (5) business days after written notice; or\n\n(b)  Lessee's failure to perform any other term or condition of the Schedule \nor the material inaccuracy of any representation or warranty made by the \nLessee in the Schedule or in any document or certificate furnished to the \nLessor hereunder if that failure or inaccuracy continues for ten (10) \nbusiness days after written notice; or \n\n(c)  An assignment by Lessee for the benefit of its creditors, the failure by \nLessee to pay its debts when due, the insolvency of Lessee, the filing by \nLessee or the filing against Lessee of any petition under any bankruptcy or \ninsolvency law or for the appointment of a trustee or other officer with \nsimilar powers, the adjudication of Lessee as insolvent, the liquidation of \nLessee, or the taking of any action for the purpose of the foregoing; or\n\n(d)  The occurrence of an Event of Default under any Schedule, Summary \nEquipment Schedule or other agreement between Lessee and Lessor or its \nAssignee or Secured Party.\n\n13.2 REMEDIES. Upon the occurrence of any of the above Events of Default, \nLessor, at its option, may:\n\n(a)  enforce Lessee's performance of the provisions of the applicable \nSchedule by appropriate court action in law or in equity;\n\n(b)  recover from Lessee any damages and or expenses, including Default Costs;\n\n(c)  with notice and demand, recover all sums due and accelerate and recover \nthe present value of the remaining payment stream of all Rent due under the \ndefaulted Schedule (discounted at the same rate of interest at which such \ndefaulted Schedule was discounted with a Secured Party plus any prepayment \nfees charged to Lessor by the Secured Party or, if there is no Secured Party, \nthen discounted at 6%) together with all Rent and other amounts currently due \nas liquidated damages and not as a penalty;\n\n(d)  with notice and process of law and in compliance with Lessee's security\nrequirements, Lessor may enter on Lessee's premises to remove and repossess the\nEquipment without being liable to Lessee for damages due to the repossession,\nexcept those resulting from Lessor's, its assignees', agents' or\nrepresentatives' negligence; and\n\n(e)  pursue any other remedy permitted by law or equity.\n\nThe above remedies, in Lessor's discretion and to the extent permitted by \nlaw, are cumulative and may be exercised successively or concurrently.\n\n13.3 MITIGATION. Upon return of the Equipment pursuant to the terms of \nSection 13.2, Lessor will use its best efforts in accordance with its normal \nbusiness procedures (and without obligation to give any priority to such \nEquipment) to mitigate Lessor's damages as described below. EXCEPT AS SET \nFORTH IN THIS SECTION, LESSEE HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER \nCONFERRED BY STATUTE OR OTHERWISE WHICH MAY REQUIRE LESSOR TO MITIGATE ITS \nDAMAGES OR MODIFY ANY OF LESSOR'S RIGHTS OR REMEDIES STATED HEREIN. Lessor \nmay sell, lease or otherwise dispose of all or any part of the Equipment at a \npublic or private sale for cash or credit with the privilege of purchasing \nthe Equipment. The proceeds from any sale, lease or other disposition of the \nEquipment are defined as either: \n\n(a)  if sold or otherwise disposed of, the cash proceeds less the Fair Market \nValue of the Equipment at the expiration of the Initial Term less the Default \nCosts; or\n\n(b)  if leased, the present value (discounted at three percent (3%) over the \nU.S. Treasury Notes of comparable maturity to the term of the re-lease) of \nthe rentals for a term not to exceed the Initial Term, less the Default Costs.\n\nAny proceeds will be applied against liquidated damages and any other sums \ndue to Lessor from Lessee. However, Lessee is liable to Lessor for, and \nLessor may recover, the amount by which the proceeds are less than the \nliquidated damages and other sums due to Lessor from Lessee. \n\n14. ADDITIONAL PROVISIONS.\n\n14.1 BOARD ATTENDANCE. Upon invitation of Lessee, one representative of \nLessor will have the right to attend Lessee's corporate Board of Directors \nmeetings and Lessee will give Lessor reasonable notice in advance of any \nspecial Board of Directors meeting, which notice will provide an agenda of \nthe subject matter to be discussed at such board meeting. Lessee will provide \nLessor with a certified copy of the minutes of each Board of Directors \nmeeting within thirty (30) days following the date of such meeting held \nduring the term of this Master Lease.\n\n14.2 FINANCIAL STATEMENTS. As soon as practicable at the end of each month \n(and in any event within thirty (30) days), Lessee will provide to Lessor the \nsame information which \n\n\n                                      -4-\n\n\nLessee provides to its Board of Directors, but which will include not less \nthan a monthly income statement, balance sheet and statement of cash flows \nprepared in accordance with generally accepted accounting principles, \nconsistently applied (the 'Financial Statements'). As soon as practicable at \nthe end of each fiscal year, Lessee will provide to Lessor audited Financial \nStatements setting forth in comparative form the corresponding figures for \nthe fiscal year (and in any event within ninety (90) days), and accompanied \nby an audit report and opinion of the independent certified public \naccountants selected by Lessee. Lessee will promptly furnish to Lessor any \nadditional information (including, but not limited to, tax returns, income \nstatements, balance sheets and names of principal creditors) as Lessor \nreasonably believes necessary to evaluate Lessee's continuing ability to meet \nfinancial obligations. After the effective date of the initial registration \nstatement covering a public offering of Lessee's securities, the term \n'Financial Statements' will be deemed to refer to only those statements \nrequired by the Securities and Exchange Commission.\n\n14.3 OBLIGATION TO LEASE ADDITIONAL EQUIPMENT. Upon notice to Lessee, Lessor \nwill not be obligated to lease any Equipment which would have a Commencement \nDate after said notice if: (i) Lessee is in default under this Master Lease \nor any Schedule; (ii) Lessee is in default under any loan agreement, the \nresult of which would allow the lender or any secured party to demand \nimmediate payment of any material indebtedness; (iii) there is a material \nadverse change in Lessee's credit standing; or (iv) Lessor determines (in \nreasonable good faith) that Lessee will be unable to perform its obligations \nunder this Master Lease or any Schedule.       \n\n14.4 MERGER AND SALE PROVISIONS. Lessee will notify Lessor of any proposed \nMerger at least sixty (60) days prior to the closing date. Lessor may, in its \ndiscretion, either (i) consent to the assignment of the Master Lease and all \nrelevant Schedules to the successor entity, or (ii) terminate the Master \nLease and all relevant Schedules. If Lessor elects to consent to the \nassignment, Lessee and its successor will sign the assignment documentation \nprovided by Lessor. If Lessor elects to terminate the Master Lease and all \nrelevant Schedules, then Lessee will pay Lessor all amounts then due and \nowing and a termination fee equal to the present value (discounted at 6%) of \nthe remaining Rent for the balance of the Initial Term(s) of all Schedules, \nand will return the Equipment in accordance with Section 9. Lessor hereby \nconsents to any Merger in which the acquiring entity has a Moody's Bond \nRating of BA3 or better or a commercially acceptable equivalent measure of \ncreditworthiness as reasonably determined by Lessor.\n     \n14.5 ENTIRE AGREEMENT. This Master Lease and associated Schedules and Summary \nEquipment Schedules supersede all other oral or written agreements or \nunderstandings between the parties concerning the Equipment including, for \nexample, purchase orders. ANY AMENDMENT OF THIS MASTER LEASE OR A SCHEDULE, \nMAY ONLY BE ACCOMPLISHED BY A WRITING SIGNED BY THE PARTY AGAINST WHOM THE \nAMENDMENT IS SOUGHT TO BE ENFORCED.\n\n14.6 NO WAIVER. No action taken by Lessor or Lessee will be deemed to \nconstitute a waiver of compliance with any representation, warranty or \ncovenant contained in this Master Lease or a Schedule. The waiver by Lessor \nor Lessee of a breach of any provision of this Master Lease or a Schedule \nwill not operate or be construed as a waiver of any subsequent breach.\n\n14.7 BINDING NATURE. Each Schedule is binding upon, and inures to the benefit \nof Lessor and its assigns. LESSEE MAY NOT ASSIGN ITS RIGHTS OR OBLIGATIONS. \n\n14.8 SURVIVAL OF OBLIGATIONS. All agreements, obligations including, but not \nlimited to those arising under Section 6.2, representations and warranties \ncontained in this Master Lease, any Schedule, Summary Equipment Schedule or \nin any document delivered in connection with those agreements are for the \nbenefit of Lessor and any Assignee or Secured Party and survive the \nexecution, delivery, expiration or termination of this Master Lease.\n\n14.9 NOTICES. Any notice, request or other communication to either party by \nthe other will be given in writing and deemed received upon the earlier of \n(1) actual receipt or (3) three days after mailing if mailed postage prepaid \nby regular or airmail to Lessor (to the attention of 'the Comdisco Venture \nGroup') or Lessee, at the address set out in the Schedule, (3) one day after \nit is sent by courier or (4) on the same day as sent via facsimile \ntransmission, provided that the original is sent by personal delivery or mail \nby the sending party.\n\n14.10 APPLICABLE LAW. THIS MASTER LEASE HAS BEEN, AND EACH SCHEDULE WILL HAVE \nBEEN MADE, EXECUTED AND DELIVERED IN THE STATE OF ILLINOIS AND WILL BE \nGOVERNED AND CONSTRUED FOR ALL PURPOSES IN ACCORDANCE WITH THE LAWS OF THE \nSTATE OF ILLINOIS WITHOUT GIVING EFFECT TO CONFLICT OF LAW PROVISIONS. NO \nRIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE \nWILL BE CONFERRED ON LESSEE UNLESS EXPRESSLY GRANTED IN THIS MASTER LEASE OR \nA SCHEDULE.\n\n14.11 SEVERABILITY. If any one or more of the provisions of this Master Lease \nor any Schedule is for any reason held invalid, illegal or unenforceable, the \nremaining provisions of this Master Lease and any such Schedule will be \nunimpaired, and the invalid, illegal or unenforceable provision replaced by a \nmutually acceptable valid, legal and enforceable provision that is closest to \nthe original intention of the parties.\n\n\n                                      -5-\n\n\n14.12 COUNTERPARTS. This Master Lease and any Schedule may be executed in any \nnumber of counterparts, each of which will be deemed an original, but all \nsuch counterparts together constitute one and the same instrument. If Lessor \ngrants a security interest in all or any part of a Schedule, the Equipment or \nsums payable thereunder, only that counterpart Schedule marked 'Secured \nParty's Original' can transfer Lessor's rights and all other counterparts \nwill be marked 'Duplicate.'\n\n14.13 LICENSED PRODUCTS. Lessee will obtain no title to Licensed Products \nwhich will at all times remain the property of the owner of the Licensed \nProducts. A license from the owner may be required and it is Lessee's \nresponsibility to obtain any required license before the use of the Licensed \nProducts. Lessee agrees to treat the Licensed Products as confidential \ninformation of the owner, to observe all copyright restrictions, and not to \nreproduce or sell the Licensed Products.\n\n14.14 SECRETARY'S CERTIFICATE. Lessee will, upon execution of this Master \nLease, provide Lessor with a secretary's certificate of incumbency and \nauthority. Upon the execution of each Schedule with a purchase price in \nexcess of $1,000,000, Lessee will provide Lessor with an opinion from \nLessee's counsel in a form acceptable to Lessor regarding the representations \nand warranties in Section 8.\n\n14.15 ELECTRONIC COMMUNICATIONS. Each of the parties may communicate with the \nother by electronic means under mutually agreeable terms.\n\n14.16 LANDLORD\/MORTGAGEE WAIVER. Lessee agrees to provide Lessor with a \nLandlord\/Mortgagee Waiver with respect to the Equipment. Such waiver shall be \nin a form satisfactory to Lessor.\n\n14.17 EQUIPMENT PROCUREMENT CHARGES\/PROGRESS PAYMENTS. Lessee hereby agrees \nthat Lessor shall not, by virtue of its entering into this Master Lease, be \nrequired to remit any payments to any manufacturer or other third party until \nLessee accepts the Equipment subject to this Master Lease.\n\n14.18 DEFINITIONS.\n\nADVANCE - means the amount due to Lessor by Lessee upon Lessee's execution of \neach Schedule.\n\nASSIGNEE - means an entity to whom Lessor has sold or assigned its rights as \nowner and Lessor of Equipment.\n\nCASUALTY LOSS - means the irreparable loss or destruction of Equipment.\n\nCASUALTY VALUE - means the greater of the aggregate Rent remaining to be paid \nfor the balance of the lease term or the Fair Market Value of the Equipment \nimmediately prior to the Casualty Loss. However, if a Casualty Value Table is \nattached to the relevant Schedule its terms will control.\n\nCOMMENCEMENT DATE - is defined in each Schedule.\n\nDEFAULT COSTS - means reasonable attorney's fees and remarketing costs \nresulting from a Lessee default or Lessor's enforcement of its remedies.\n\nDELIVERY DATE - means date of delivery of Inventory Equipment to Lessee's \naddress.\n\nEQUIPMENT - means the property described on a Summary Equipment Schedule and \nany replacement for that property required or permitted by this Master Lease \nor a Schedule.\n\nEVENT OF DEFAULT - means the events described in Subsection 13.1.\n\nFAIR MARKET VALUE - means the aggregate amount which would be obtainable in \nan arm's-length transaction between an informed and willing buyer\/user and an \ninformed and willing seller under no compulsion to sell.\n\nINITIAL TERM - means the period of time beginning on the first day of the \nfirst full Rent Interval following the Commencement Date for all items of \nEquipment and continuing for the number of Rent Intervals indicated on a \nSchedule.\n\nINTERIM RENT - means the pro-rata portion of Rent due for the period from the \nCommencement Date through but not including the first day of the first full \nRent Interval included in the Initial Term.\n\nLATE CHARGE - means the lesser of five percent (5%) of the payment due or the \nmaximum amount permitted by the law of the state where the Equipment is \nlocated.\n\nLICENSED PRODUCTS - means any software or other licensed products attached to \nthe Equipment.\n\nLIKE EQUIPMENT - means replacement Equipment which is lien free and of the \nsame model, type, configuration and manufacture as Equipment.\n\nMERGER - means any consolidation or merger of the Lessee with or into any \nother corporation or entity, any sale or conveyance of all or substantially \nall of the assets or stock of the Lessee by or to any other person or entity \nin which Lessee is not the surviving entity.\n\nNOTICE PERIOD - means not less than ninety (90) days nor more than twelve \n(12) months prior to the expiration of the lease term.\n\nOWNER - means the owner of Equipment.\n\n\n                                      -6-\n\n\nRENT - means the rent Lessee will pay for each item of Equipment expressed in a\nSummary Equipment Schedule either as a specific amount or an amount equal to the\namount which Lessor pays for an item of Equipment multiplied by a lease rate\nfactor plus all other amounts due to Lessor under this Master Lease or a\nSchedule.\n\nRENT INTERVAL - means a full calendar month or quarter as indicated on a \nSchedule.\n\nSCHEDULE - means either an Equipment Schedule or a Licensed Products Schedule \nwhich incorporates all of the terms and conditions of this Master Lease.\n\nSECURED PARTY - means an entity to whom Lessor has granted a security \ninterest for the purpose of securing a loan.\n\nSUMMARY EQUIPMENT SCHEDULE - means a certificate provided by Lessor \nsummarizing all of the Equipment for which Lessor has received Lessee \napproved vendor invoices, purchase documents and\/or evidence of delivery \nduring a calendar quarter which will incorporate all of the terms and \nconditions of the related Schedule and this Master Lease and will constitute \na separate lease for the equipment leased thereunder.\n\n\nIN WITNESS WHEREOF, the parties hereto have executed this Master Lease on or \nas of the day and year first above written.\n\nINTRAWARE, INC.                        COMDISCO, INC.,\nas Lessee                              as Lessor\n\n                                       \nBy: \/s\/ Donald M. Freed                By:  \/s\/ James P. Labe\n   ---------------------------------      -----------------------------------\n\nTitle: Executive Vice President        Title: President, COMDISCO VENTURES \n      ------------------------------         --------------------------------\n       and Chief Financial Officer            DIVISION\n      ------------------------------         --------------------------------\n\n\n                                      -7-\n \n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7153,7907],"corporate_contracts_industries":[9498],"corporate_contracts_types":[9613,9614],"class_list":["post-42544","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-comdisco-inc","corporate_contracts_companies-intraware-inc","corporate_contracts_industries-retail__equipment","corporate_contracts_types-operations","corporate_contracts_types-operations__equipment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42544","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42544"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42544"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42544"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42544"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}