{"id":42548,"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-steelcase-financial-services-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"master-lease-agreement-steelcase-financial-services-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/master-lease-agreement-steelcase-financial-services-inc-and.html","title":{"rendered":"Master Lease Agreement &#8211; Steelcase Financial Services Inc. and Liberate Technologies"},"content":{"rendered":"<pre>STEELCASE FINANCIAL SERVICES INC.\nA STEELCASE COMPANY\n-------------------------------------------------------------------------------\nMASTER LEASE AGREEMENT                                             NUMBER 12809\n\nTHIS MASTER LEASE AGREEMENT is dated and effective as of AUGUST 2, 1999, (the \n'Effective Date'), by and between Steelcase Financial Services Inc., a \nMichigan corporation, located at 1111 44th Street S.E., P.O. Box 3163, Grand \nRapids, MI 49501-3163 (together with any successors or assigns, the \n'Lessor'), and the Lessee indicated below (the 'Lessee').\n\nLESSEE\nFull Legal Name                    Trade Name\nLIBERATE TECHNOLOGIES\n\nMailing Address                    City                    State    Zip\n1000 BRIDGE PARKWAY                REDWOOD CITY            CA       94065-\n\nType of Legal Entity               State of Organization   Date of Establishment\nCORPORATION                        DE                      1996\n\n1.  LEASE.  Lessor hereby leases to Lessee and Lessee hereby leases from \nLessor all of the tangible personal property listed on each Equipment \nSchedule executed from time to time pursuant to this Agreement (each, an \n'Equipment Schedule'). Each Equipment Schedule shall be substantially in the \nform annexed hereto as Annex A, shall incorporate by reference therein all of \nthe terms and conditions of this Agreement and shall include such other terms \nand conditions upon which the parties have agreed (each Equipment Schedule, \ntogether with this Agreement as it relates to such Schedule, is referred to \nherein as a 'Lease'). With respect to each Lease, capitalized terms not \ndefined in this Agreement shall have the meanings stated in the applicable \nEquipment Schedule.\n\n2.  NET LEASE.  EACH LEASE IS A NET LEASE, AND LESSEE SHALL PAY ALL COSTS AND \nEXPENSES OF EVERY CHARACTER, WHETHER FORESEEN OR UNFORESEEN, ORDINARY OR \nEXTRAORDINARY, IN CONNECTION WITH THE USE, POSSESSION, STORAGE, MAINTENANCE \nAND REPAIR OF THE EQUIPMENT. LESSEE IS UNCONDITIONALLY OBLIGATED TO PAY \nPERIODIC RENT AND ALL OTHER AMOUNTS DUE UNDER EACH LEASE REGARDLESS OF ANY \nDEFECT IN OR DAMAGE TO THE EQUIPMENT, LOSS OF POSSESSION OR USE OF THE \nEQUIPMENT OR DESTRUCTION OF THE EQUIPMENT FROM ANY CAUSE WHATSOEVER. LESSEE'S \nOBLIGATIONS UNDER EACH LEASE SHALL CONTINUE UNTIL SPECIFICALLY TERMINATED AS \nPROVIDED THEREIN. LESSEE IS NOT ENTITLED TO ANY ABATEMENT, REDUCTION, \nRECOUPMENT, DEFENSE, OR SET-OFF AGAINST PERIODIC RENT OR OTHER AMOUNTS DUE TO \nLESSOR UNDER EACH LEASE, WHETHER ARISING OUT OF SUCH LEASE (INCLUDING ANY \nBREACH, DEFAULT OR MISREPRESENTATION OF LESSOR) OR OUT OF LESSOR'S STRICT \nLIABILITY OR NEGLIGENCE, OR OTHERWISE.\n\n3.  TERM.  The term of this Agreement shall commence on the Effective Date \nand shall continue in effect thereafter as long as any Lease remains in \neffect. The term of each Lease shall commence on the Lease Commencement Date \nas set forth in a Delivery and Acceptance Certificate signed by the Lessee in \nsubstantially the form annexed hereto as Annex B (the 'Lease Commencement \nDate') and shall continue thereafter for the lease term set forth in the \napplicable Equipment Schedule (the 'Lease Term'). Unless Lessee shall have \ngiven due notice of the exercise of one of the options available to Lessee \nunder Section 13 hereof or shall have given Lessor written notice of \nnonrenewal at least 30 days prior to the expiration of any Lease Term, such \nLease Term shall automatically renew for successive monthly periods until \nterminated by Lessee or Lessor upon at least 30 days prior written notice.\n\n4.  RENT.  Lessee agrees to pay Periodic Rent in the amount specified in each \nEquipment Schedule (the 'Periodic Rent'). The initial Periodic Rent payment \nfor each Lease shall be due on the date the Equipment is accepted by Lessee \nand subsequent Periodic Rent payments shall be due as specified on the \napplicable Equipment Schedule. All Periodic Rent and other amounts payable \nunder each Lease (collectively referred to herein as 'Rent') shall be paid to \nLessor at the address specified on the applicable Equipment Schedule or at \nsuch other address as Lessor may specify thereafter in writing. If any \nPeriodic Rent or other Rent payment is not paid within 10 days of its due \ndate, Lessee agrees to pay as additional Rent a late charge equal to 5% of \nsuch unpaid Rent payment plus 1 1\/2% per month of any amount due and unpaid \nfor more than 30 days, or, if less, the maximum amount permitted under \napplicable law. Periodic Rent payable during any automatic renewal period \ndescribed in Section 3 hereof shall be equal to the highest Periodic Rent \npayable during the initial Lease Term.\n\n    Lessee hereby agrees that the amount of the Periodic Rent payments and \nPurchase Option Price under each Lease shall be adjusted to reflect any \nchange in the Cost to Lessor set forth in the applicable Equipment Schedule as \na result of Equipment change orders or returns, invoicing errors or other \nsimilar events. In the event of any such adjustment, Lessor will furnish to \nLessee a written notice stating the final Cost to Lessor, Periodic Rent and \nPurchase Option Price.\n\n5.  DISCLAIMER OF WARRANTIES.  LESSEE ACKNOWLEDGES AND AGREES THAT: (a) EACH \nITEM OF EQUIPMENT IS OF A TYPE, DESIGN, QUALITY AND MANUFACTURE SELECTED BY \nLESSEE, ACCEPTABLE TO LESSEE AND SUITABLE FOR LESSEE'S PURPOSES; (b) LESSOR \nIS NOT THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT OR THE REPRESENTATIVE OF \nEITHER; (c) LESSOR IS NOT REQUIRED TO ENFORCE ANY MANUFACTURER'S WARRANTIES \nON BEHALF OF ITSELF OR LESSEE; (d) LESSOR HAS NOT INSPECTED AND IS NOT \nOBLIGATED TO INSPECT THE EQUIPMENT; (e) LESSOR LEASES THE EQUIPMENT TO LESSEE \nAS IS WITHOUT WARRANTY OR REPRESENTATION EITHER EXPRESS OR IMPLIED, AND THE \nLESSOR EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, AS TO (i) THE \nTITLE, CONDITION, FITNESS FOR USE FOR A PARTICULAR PURPOSE, DESIGN, \nCOMPLIANCE WITH SPECIFICATIONS, OPERATION, OR MERCHANTABILITY THEREOF, (ii) \nTHE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCERNABLE, (iii) THE \nABSENCE OF INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT OR (iv) ANY \nOTHER MATTER WHATSOEVER, IT BEING AGREED THAT ALL SUCH RISKS, AS BETWEEN THE \nLESSOR AND THE LESSEE, ARE TO BE BORNE BY THE LESSEE.\n\n6.  USE, OPERATION AND RETURN OF EQUIPMENT.\n\n    (a) Lessee agrees at its own expense to: (i) maintain the Equipment in \ngood appearance and condition, reasonable wear and tear excepted; and (ii) \nuse the Equipment in the manner for which it was intended and in compliance \nwith all applicable laws and manufacturer requirements and recommendations.\n\n    (b) Lessee agrees not to attach to the Equipment any accessory, \nequipment, or device not leased from Lessor unless it is easily removable \nwithout damaging the Equipment. Lessee agrees to pay all costs for parts, \nalterations, and additions to the Equipment (including those required by \nlaw), all of which immediately shall become the property of Lessor. Lessor \nand Lessee intend that the Equipment shall remain personal property to Lessor.\n\n    (c) Provided that no Default, as defined herein, has occurred and is \ncontinuing, Lessee is authorized on behalf of Lessor to enforce in its own \nname (and at its own expense) any warranty, indemnity, or rights to damages \nrelating to the Equipment which Lessor has against the supplier of such \nEquipment.\n\n\nForm:         ML1001                                             Page 1 of 4\nRev: August 29, 1997\n\n\n\n\nSTEELCASE FINANCIAL SERVICES INC.\nA STEELCASE COMPANY\n-------------------------------------------------------------------------------\nLIBERATE TECHNOLOGIES                                                     12809\n\n     (d) Not later than the expiration date of each Lease Term, Lessee \nagrees, at its own expense and risk, to: (i) effect any repairs necessary to \nplace the applicable Equipment in the same condition as when received by \nLessee, reasonable wear and tear excepted; (ii) cause such Equipment to be \ndisassembled and crated in a workmanlike manner in accordance with the \nmanufacturer's recommendations (if any); and (iii) deliver such Equipment, \nfreight prepaid, to a carrier selected by Lessor for shipment to a location \nin the continental U.S. selected by Lessor. 'Reasonable wear and tear' does \nnot include (i) burns, tears in material or large scratches, gouges, dents, \ndiscolorations or stains, (ii) damage to drawers, runners, or locks such that \nthey are not in good working order or (iii) the loss of all keys for any \nlocks.\n\n     (e) If Lessee shall, for any reason whatsoever, fail to return any \nEquipment at the time required by the applicable Lease, the obligations of \nLessee as provided in such Lease shall continue in effect with respect to \nsuch Equipment until such Equipment is returned to the Lessor, and the amount \nof each Periodic Rent payment shall be equal to the highest Periodic Rent \npayment during the Lease Term of such Lease. However, this Section 6(e) shall \nnot be construed as permitting Lessee to fail to meet its obligation to \nreturn the Equipment in accordance with the requirements of the applicable \nLease or constitute waiver of any Default.\n\n7.   LOSS OR DAMAGE. Lessee shall bear the risk of any disappearance of, \ndamage to or loss of any item of Equipment from any cause whatsoever (a \n'Casualty Occurrence'). Lessee shall promptly notify Lessor in writing of any \nCasualty Occurrence. Upon a Casualty Occurrence: (a) if the affected \nEquipment is repairable, Lessee shall, at Lessee's expense, promptly restore \nthe Equipment to good repair, condition and working order in accordance with \nthe manufacturer's recommendations and to the reasonable satisfaction of \nLessor; or (b) if the affected Equipment is an actual or constructive total \nloss or otherwise is not repairable, Lessee shall pay to Lessor on or before \nthe next Periodic Rent Payment Date (such payment date, the 'Casualty Payment \nDate') an amount equal to the sum of (i) all amounts due and unpaid under the \napplicable Lease as of the Casualty Payment Date (including all Periodic Rent \npayments in respect of such Equipment, which shall be pro rated to the \nCasualty Payment Date, and any indemnity obligations), plus (ii) the present \nvalue of all future Periodic Rent payments for such Equipment, discounted on \nan annual basis at a discount rate equal to the ask yield to maturity of the \nU.S. Treasury Bill issue maturing in 180 days (or the issue maturing closest \nthereto), as published in the Wall Street Journal for the immediately \npreceding Rent Payment Date (or the next preceding business day if such date \nis not a business day), which Lessee agrees is a commercially reasonable \nrate (the 'Discount Rate') from the scheduled payment dates to the Casualty \nPayment Date, plus (iii) the present value of the greater of (x) the \nanticipated residual value of the affected Equipment at the end of the \nrelevant Lease Term, as determined by the Lessor for purposes of calculating \nthe relevant Periodic Rent and Purchase Option Price or (y) the then expected \nfair market value of the affected Equipment at the end of the relevant Lease \nTerm, in each case discounted on an annual basis at the Discount Rate from \nthe expiration of the Lease Term to the Casualty Payment Date; provided, that \nif the Purchase Option Price is a fixed amount, the value calculated pursuant \nto the foregoing clause (iii) shall not exceed the present value of such \nfixed Purchase Option Price, discounted on an annual basis at the Discount \nRate from the expiration date of the relevant Lease term to the Casualty \nPayment Date. If Lessee is required to repair the affected Equipment pursuant \nto clause (a) of the foregoing sentence, the insurance proceeds actually \nreceived by Lessor, if any, pursuant to Section 8 hereof shall be applied \nfirst to pay any amounts then due under this Agreement or any Lease and then \nshall be paid to Lessee upon proof satisfactory to Lessor that such repair \nhas been completed as required herein. In the event Lessee is obligated to pay \nto Lessor the amounts set forth in clause (b) of the foregoing sentence, \nLessee shall be entitled to a credit against such amounts equal to the amount \nof insurance proceeds actually received by Lessor, if any, pursuant to \nSection 8 hereof on account of such Equipment and upon payment in full of all \namounts set forth in such clause (b), Lessor shall assign to Lessee and \nLessee's insurers, as their interests may appear, all of Lessor's interest \nin such Equipment on an as is, where is basis, without representation or \nwarranty, express or implied, and the Lease in respect of such Equipment \nshall terminate.\n\n8.   INSURANCE. Lessee agrees, at its own expense, to keep the Equipment \ninsured with companies acceptable to Lessor and to maintain primary coverage \nconsisting of (a) actual cash value all risk insurance on the Equipment, \nnaming Lessor and Lessee as sole loss payees, as their interests may appear, \nand (b) combined limit public liability and property damage insurance of not \nless than $1,000,000 per occurrence (or such other amounts as Lessor \nreasonably may require by notice to Lessee) naming Lessee as insured and \nLessor as an additional insured. The insurance shall provide for not less \nthan 30 days prior written notice to Lessor of any material change, \ncancellation or non-renewal of the policy. Premiums for all such insurance \nshall be prepaid. Lessee shall deliver evidence of such insurance to Lessor \nupon request, and shall promptly provide to Lessor all information pertinent \nto any occurrence which may become the basis of a claim. Lessee will not make \nclaims adjustments with insurers except with Lessor's prior written consent.\n\n9.   REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents and warrants \nto Lessor that as of the date hereof:\n\n     (a) Lessee has adequate power and capacity to enter into this Agreement \nand each Lease, any documents relating to the purchase of Equipment and any \nother documents required to be delivered in connection herewith or therewith \n(collectively, the 'Documents'); the Documents have been duly authorized, \nexecuted, and delivered by Lessee and constitute valid, legal, and binding \nagreements, enforceable in accordance with their terms; there are no legal or \nother proceedings presently pending or threatened against Lessee which may \nimpair its ability to perform under the Documents or affect the validity \nthereof; and all information which has been supplied to Lessor is accurate and \ncomplete.\n\n     (b) Lessee's execution of the Documents and its leasing of the Equipment \ndoes not and will not (i) violate Lessee's organizational documents or any \njudgment, order or law applicable to this Agreement or any Lease or Lessee; \n(ii) violate or require consent under any agreement to which Lessee is a \nparty or to which Lessee's property is subject; or (iii) result in the creation \nof any lien, security interest, or other encumbrance upon the Equipment \nexcept in favor of the Lessor.\n\n     (c) All financial data of Lessee or of any consolidated group of \ncompanies of which it is a member ('Lessee Group') delivered to Lessor have \nbeen prepared in accordance with generally accepted accounting principles \napplied on a consistent basis with prior periods and fairly present the \nfinancial position and results of operations of Lessee, or of the Lessee \nGroup, as of the stated date and for the indicated periods. Since the date of \nthe most recently delivered financial data, there has been no material \nadverse change in the financial or operating condition of the Lessee or of \nthe Lessee Group.\n\n     (d) If Lessee is a corporation, partnership or limited liability \ncompany, it is and will be validly existing and in good standing under the \nlaws of the state of its organization; the persons signing the Lease are \nacting with the full authority of the board of directors, partners, members \nor managers, as the case may be, and such persons hold the offices indicated \nbelow their signatures, which are genuine.\n\n10.  COVENANTS OF LESSEE.\n\n     (a) Lessee agrees that title to each item of Equipment shall remain with \nthe Lessor at all times and the Lessee shall have no right, title or interest \ntherein except as expressly set forth in each Lease. Lessee agrees that it \nwill keep the Equipment free and clear from all claims, liens, and \nencumbrances (except in favor of the Lessor) and will not assign, sublet, or \ngrant a security interest in the Equipment or in any Lease without Lessor's \nprior written consent. As additional security for the performance of Lessee's \nobligations hereunder and under each Lease, Lessee hereby grants to Lessor a \nfirst priority security interest in its interest in the Equipment and any \nproceeds thereof. Lessee irrevocably appoints Lessor (acting directly or \nthrough any agent) its attorney-in-fact to execute such UCC financing \nStatements as Lessor shall deem necessary or expedient to perfect or protect \nsuch security interest, and Lessee agrees to execute and deliver, at Lessee's \nexpense, such other or additional documents or instruments as Lessor shall \nreasonably deem necessary or expedient to perfect or protect such security \ninterest. Lessee shall notify Lessor in writing, with full particulars, \nwithin 10 days after it learns of the attachment of any lien to any Equipment \nand of the Equipment's location.\n\n\nForm:         ML1001                                             Page 2 of 4\nRev: August 29, 1997\n\n\n\nSTEELCASE FINANCIAL SERVICES INC.\nA STEELCASE COMPANY\n-------------------------------------------------------------------------------\n\nLIBERATE TECHNOLOGIES                                                     12809\n\n\n    (b) LESSEE COVENANTS AND AGREES THAT THE EQUIPMENT WILL NOT BE USED FOR \nPERSONAL, FAMILY OR HOUSEHOLD PURPOSES, AND WILL BE USED SOLELY FOR \nCOMMERCIAL OR BUSINESS PURPOSES.\n\n    (c) Lessee shall not relocate any unit of Equipment from the Equipment \nLocation set forth in the applicable Equipment Schedule without the prior \nwritten approval of Lessor (which shall not be unreasonably withheld). Lessee \nagrees to notify Lessor immediately in writing of any change in Lessee's \ncorporate or business name or in the location of its chief executive office.\n\n    (d) Upon reasonable written notice to Lessee, Lessor may inspect the \nEquipment during normal business hours. At Lessor's request, Lessee will \nattach identifying labels to each unit of Equipment in a location reasonably \nsuitable for such labels and in a form approved by Lessor showing Lessor's \nownership interest therein.\n\n    (e) Lessor may assign this Agreement and\/or any Lease. Lessee waives and \nagrees not to assert against any assignee any defense, set off, recoupment, \nclaim or counterclaim which Lessee has or may at any time have against Lessor \nfor any reason whatsoever; provided that no such assignment shall extinguish \nor impair any rights Lessee may have against Lessor.\n\n    (f) Upon Lessor's request, Lessee shall within 90 days of the close of \neach fiscal year of Lessee, deliver to Lessor duplicate copies of Lessee's \nbalance sheet and profit and loss statement, certified by a recognized firm \nof certified public accountants. Upon request, Lessee will deliver to Lessor \nduplicate copies of Lessee's most recent quarterly financial report.\n\n    (g) At the request of Lessor, upon execution of this Agreement and each \nEquipment Schedule pursuant hereto, Lessee shall provide Lessor with copies \nof the resolutions or other actions or documents authorizing such execution, \ncertified by an appropriate officer of Lessee and such other documents as \nLessor may reasonably request.\n\n    (h) If more than one Lessee is named in this Lease, the liability of each \nLessee shall be joint and several.\n\n    (i) Lessee hereby agrees that any action by Lessee against Lessor for any \ndefault under this Agreement or any Lease shall be commenced within one year \nafter the cause of action accrues.\n\n    (j) Lessee acknowledges that Lessee has selected the manufacturer and \nsupplier of the Equipment to be leased under each Lease and that: (i) Lessor \nhas not selected, manufactured or supplied any Equipment and will acquire \nEquipment only in connection with the applicable Lease thereof; and (ii) \nLessee is entitled under Article 2A of the Uniform Commercial Code (the \n'UCC') to the promises and warranties, including those of any third party, \nprovided to Lessor by the supplier of the Equipment in connection with or as \npart of the contract by which Lessor acquires the Equipment, and Lessee is \nentitled to communicate with the supplier of the Equipment and to receive an \naccurate and complete statement of those promises and warranties, including \nany disclaimers and limitations thereof or of any remedies.\n\n    (k) To the extent permitted by applicable law, Lessee hereby waives all \nrights and remedies conferred upon a lessee in respect of each Lease under \nArticle 2A of the UCC.\n\n    (l) Lessee acknowledges and agrees that to the extent that the Periodic \nRent under any Lease is deemed to include finance charges ('interest'), \nLessee agrees to pay all such Interest. The rate of any such deemed Interest \nis not intended to exceed the maximum amount of interest permitted to be \ncharged or collected by applicable law. If such Interest exceeds such \nmaximum, then the Interest payable will be reduced to the legally permitted \nmaximum amount of interest, and any excessive interest will be used to reduce \nthe deemed principal amount of Lessee's obligation or refunded.\n\n11. INDEMNIFICATION.\n\n    (a) Taxes. Lessee agrees to indemnify and hold Lessor harmless on an \nafter tax basis from all fees, taxes (excluding taxes on Lessor's net \nincome), levies, assessments or withholdings of any nature together with \npenalties and interest (collectively, 'Taxes') assessed against Lessor, Lessee, \nthis Agreement, any Lease or the Equipment, arising out of the purchase \n(including purchase by Lessee), sale, ownership, delivery, leasing, \npossession, use, operation, or return of the Equipment or any proceeds \nthereof. Lessee shall pay Lessor on demand as additional Rent any Taxes paid \nby Lessor.\n\n    (b) General. Lessee agrees, whether or not any Equipment Schedules are \nexecuted hereunder, to assume liability for, and does hereby agree to \nindemnify, protect, save and keep harmless the Lessor from and against any \nand all liabilities, obligations, losses, damages, penalties, claims \n(including claims by any employee of the Lessee or any of its contractors), \nactions, suits and related costs, expenses and disbursements, including \nreasonable legal fees and expenses of whatsoever kind and nature ('Losses), \nimposed on, asserted against or incurred by Lessor, in any way relating to or \narising out of (i) this Agreement or any Lease, including the enforcement \nthereof or (ii) the construction, financing, purchase, acceptance, rejection, \ninstallation, ownership, delivery, lease, sublease, possession, use, \noperation, maintenance, repair, condition, sale (including pursuant to \nSection 12 hereof), abandonment or return of the Equipment (including \nwithout limitation latent and other defects, whether or not discoverable by \nthe Lessor or the Lessee, and any claim for patent, trademark or copyright \ninfringement or arising under the strict liability doctrine in tort); \nprovided, that Lessee shall not be obligated to indemnify Lessor for any \nLosses to the extent resulting from the Lessor's willful misconduct, gross \nnegligence or willful breach of this Agreement or any Lease.\n\n12. DEFAULT.\n\n    (a) Each of the following events shall constitute a default hereunder (a \n'Default') whether voluntary or involuntary, by operation of law or otherwise: \n(i) Lessor has not received a Periodic Rent payment or any other Rent within \n10 days after its due date; or (ii) Lessee violates any other term of this \nAgreement or any Lease and fails to correct such violation within 30 days after \nwritten notice thereof from Lessor; or (iii) Lessee or any guarantor becomes \ninsolvent, is liquidated or dissolved, stops doing business, or assigns its \nrights or property for the benefit of creditors; or (iv) a petition is filed \nby or against Lessee or any guarantor under Title 11 of the United States \nCode or any successor or similar law; or (v) (for individuals) Lessee or any \nguarantor dies or a guardian is appointed for such person; or (vi) Lessee (or \nany affiliate) is in default under or fails to fulfill the terms of any other \nagreement between Lessee and lessor or any affiliate of either; or (vii) the \nEquipment or any part thereof is abused, illegally used or misused; or (viii) \nany representation or warranty made by Lessee or any guarantor herein or in \nany Lease or in any statement, certificate or agreement furnished in \nconnection therewith shall prove to be untrue in any material respect as of \nthe date made.\n\n    (b) At any time after a Default hereunder and during the continuance \nthereof, Lessor may declare this Agreement and each Lease to be in default \nand at any time thereafter the Lessor may do any one or more of the \nfollowing: (i) cancel this Agreement and\/or all or part of any Lease; (ii) \nproceed by appropriate action to enforce performance at Lessee's expense of \nthe applicable covenants and terms of the applicable Lease or to recover \ndamages (including reasonable attorneys' fees) for the breach thereof; (iii) \ndemand that the Lessee, and in such case the Lessee shall, return all or any \npart of the Equipment promptly in the manner required by and in accordance \nwith Section 6 hereof as if such Equipment were being returned at the end of \nthe Lease Term; (iv) enter, with or without legal process, any premises and \ntake possession of all or any part of the Equipment without any liability to \nLessee by reason of such entry; (v) sell, lease or otherwise dispose of all \nor any part of the Equipment at a public or private sale, which may be \nconducted where the Equipment is then located, with or without display of the \nEquipment; (vi) declare immediately due and payable all sums due and to \nbecome due under this Agreement and each Lease; (vii) demand that the Lessee, \nand in such case the Lessee shall, pay to Lessor as liquidated damages for \nloss of a\n\n\nForm:         ML1001                                             Page 3 of 4\nRev: August 29, 1997\n\n\n\n\nSTEELCASE FINANCIAL SERVICES INC.\nA STEELCASE COMPANY\n-------------------------------------------------------------------------------\nLIBERATE TECHNOLOGIES                                                     12809\n\nbargain and not as a penalty (the 'Liquidated Damages') an amount equal to \nthe sum of (A) all amounts due and unpaid under each Lease (including any \nindemnity obligations) plus interest thereon from the due date thereof at a \nper annum interest rate equal to the prime rate of interest then in effect as \npublished in The Wall Street Journal, plus 2 percentage points (the 'Default \nRate:); plus (B) the present value of all future Periodic Rent payments for \nsuch Equipment, discounted on an annual basis at the Discount Rate from the \nscheduled payment dates; plus (C) the present value of the greater of (x) the \nanticipated residual value of the affected Equipment at the end of the \nrelevant Lease Term, as determined by the Lessor for purposes of calculating \nthe relevant Periodic Rent and Purchase Option Price or (y) the then expected \nfair market value of the affected Equipment at the end of the relevant Lease \nTerm, in each case discounted on an annual basis at the Discount Rate from \nthe expiration date of the relevant Lease Term, provided that, \nnotwithstanding the foregoing, if the Purchase Option Price is a fixed \namount, the value calculated pursuant to this clause (C) shall not exceed the \npresent value of such fixed Purchase Option Price, discounted on an annual \nbasis at the Discount Rate from the expiration date of the relevant Lease \nTerm; plus (D) all commercially reasonable costs and expenses incurred by \nLessor in enforcing Lessor's rights hereunder or under any Lease (including \nwithout limitation all costs of repossession, recovery, storage, repair, \nsale, re-lease and reasonable attorneys' fees), together with interest \nthereon at the Default Rate; or (viii) exercise any other right or remedy \nwhich may be available to it under the UCC or any other applicable law. The \nproceeds of any sale or lease will be applied in the following order of \npriorities: (1) to pay all of Lessor's expenses in taking, holding, preparing \nfor sale or lease and disposing of Equipment, including all reasonable \nattorneys' fees and legal expenses; then (2) to pay any late charges and all \ninterest accrued at the Default Rate; then (3) to pay accrued but unpaid \nPeriodic Rent payments, then (4) to pay any unpaid Rent, Liquidated Damages \nand all other due but unpaid sums. Any remaining proceeds shall be paid to \nLessee. If the proceeds of any sale or lease are not enough to pay the \namounts owed to Lessor under this Section, Lessee will pay the deficiency.\n\n     (c) In case of failure by the Lessee to procure or maintain insurance, \nor to pay any fees, assessments, charges or taxes arising with respect to the \nEquipment, Lessor shall have the right, but shall not be obligated, to effect \nsuch insurance or pay such fees, assessments, charges or taxes, as the case \nmay be, and, in that event, the cost thereof shall be payable by Lessee to \nLessor upon demand, together with interest at the Default Rate from the date \nof disbursement by Lessor.\n\n     (d) Lessor's remedies for Default may be exercised instead of or in \naddition to each other or any other legal or equitable remedies. Lessor has \nthe right to set off any sums received from any source (including insurance \nproceeds) against Lessee's obligations under each Lease. Lessee waives its \nright to object to the notice of the time or place of sales or lease and to \nthe manner and place of any advertising. Lessee waives any defense based on \nstatutes of limitations or laches in actions for damages. Lessor's waiver of \nany Default is not a waiver of its rights with respect to a different or \nlater Default.\n\n13.  OPTIONS.\n\n     So long as no Default has occurred and is continuing, upon the \nexpiration of any Lease, Lessee shall have the option (i) to purchase all but \nnot less than all of the Equipment leased under such Lease on an AS IS, WHERE \nIS basis without representation or warranty, for a cash purchase price equal \nto the lesser of the Purchase Option Price (plus applicable sales tax) stated \non the applicable Equipment Schedule or the Equipment's Fair Market Value \n(plus any applicable sales taxes) determined as of the end of the applicable \nLease Term; or (ii) to extend the Lease Term of such Lease at the then Fair \nMarket Rental of the Equipment for an additional 24 months, or such other \nterm as may be approved by Lessor in its sole discretion. Lessee may exercise \nthe foregoing options only by giving irrevocable written notice thereof to \nLessor at least 90 days before the end of the Lease Term or, if the Lease \nTerm has been automatically renewed for one or more monthly periods as \nprovided in Section 3 hereof, at least 30 days before the end of the Lease \nTerm. If the Lease is renewed, the Lessee's obligations (other than the \namount of the Periodic Rent payments) shall remain unchanged. 'Fair Market \nValue' or 'Fair Market Rental' means the price or rental which a willing \nbuyer or lessee (who is neither a lessee in possession nor a used equipment \ndealer) would pay for the Equipment in an arm's length transaction to a \nwilling seller or lessor who is under no compulsion to sell or lease. In \ndetermining 'Fair Market Value,' the Equipment shall be assumed to have been \nmaintained as required by the Lease and returned in full compliance with \nSection 6(d) hereof. In determining 'Fair Market Rental,' the equipment shall \nbe assumed to have been maintained as required by the Lease and, in the case \nof Equipment which requires installation, to be installed in the facility of \nthe prospective lessee.\n\n14.  MISCELLANEOUS.\n\n     (a) Time is of the essence of this Lease. So long as there is no \nDefault, Lessor shall not interfere with Lessee's quiet enjoyment of the \nEquipment.\n\n     (b) All required notices will be considered to have been given if sent by \nregistered or certified mail or overnight courier service to the Lessor or \nLessee at the address stated on the applicable Equipment Schedule, or at such \nother place as such addressee may have designated in writing.\n\n     (c) Each Lease constitutes the entire agreement of the parties with \nrespect to the lease of the Equipment and supersedes and incorporates all \nprior oral or written agreements or statements. Neither this Agreement nor \nany Lease may be changed except by written agreement signed by authorized \nrepresentative of the party against whom it is to be enforced. If any \nprovision of this Agreement or any Lease is declared invalid under applicable \nlaw, the affected provision will be considered omitted or modified to conform \nto applicable law. All other provisions will remain in full force and effect.\n\n     (d) All of Lessor's rights (including indemnity rights) under this \nAgreement and each Lease shall survive any expiration or termination of each \nLease and this Agreement and shall be enforceable by Lessor.\n\n     (e) This Agreement and each Lease shall be deemed to be made in Michigan \nand shall be governed by and construed in accordance with internal Michigan \nlaw applicable to contracts made and performed in Michigan without regard to \nconflicts of laws principles. LESSEE WAIVES ALL RIGHTS TO TRIAL BY JURY IN \nANY LITIGATION ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY LEASE AND \nLESSEE SUBMITS TO THE JURISDICTION OF THE FEDERAL DISTRICT COURT FOR THE \nWESTERN DISTRICT OF MICHIGAN OR ANY STATE COURT OF COMPETENT JURISDICTION \nWITHIN KENT COUNTY, MICHIGAN AND WAIVES ANY RIGHT TO ASSERT THAT ANY ACTION \nINSTITUTED BY LESSOR IN ANY SUCH COURT IS IN THE IMPROPER VENUE OR SHOULD BE \nTRANSFERRED TO A MORE CONVENIENT FORUM.\n\nLESSOR:                                LESSEE:\n\nSTEELCASE FINANCIAL SERVICES, INC.     LIBERATE TECHNOLOGIES\n\n                                       \/s\/ Mitchell E. Kertzman\n----------------------------------     ----------------------------------------\nSignature                              Signature\n\n                                       Mitchell E. Kertzman\n----------------------------------     ----------------------------------------\nPrint or Type Name                     Print or Type Name\n\n                                       CEO and President\n----------------------------------     ----------------------------------------\nPrint or Type Title                    Print or Type Title\n\n                                       August 16, 1999\n----------------------------------     ----------------------------------------\nDate                                   Date\n\n\nForm:         ML1001                                             Page 4 of 4\nRev: August 29, 1997\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8051,8943],"corporate_contracts_industries":[9513,9399],"corporate_contracts_types":[9613,9614],"class_list":["post-42548","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-liberate-technologies","corporate_contracts_companies-steelcase-inc","corporate_contracts_industries-technology__software","corporate_contracts_industries-consumer__furniture","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\/42548","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=42548"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42548"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42548"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42548"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}