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EXHIBIT 10.3
ASSIGNMENT AND DELEGATION - CONTRACT
WHEREAS, MIDCOM Communications Inc., a Washington corporation ("Assignor") and
Northern Telecom Inc., a Delaware corporation ("NT") are parties to the Network
Products Purchase Agreement, Number MC-10/96-DM, dated February 3, 1997, and its
related attachments ("Agreement") providing, among other undertakings, for the
sale and installation of "Equipment", provision of "Services" and the licensing
of "Software" (as those terms are defined in the Agreement, collectively
"Products") to Assignor, and Assignor hereby wishes to assign certain of the
Assignor's rights and obligations under the Agreement, all as set forth below,
to Comdisco, Inc., a Delaware corporation ("Assignee") and hereby requests NT's
consent to such assignment and delegation;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. The Products shall be leased by Assignee to Assignor pursuant to
Equipment Schedule No. 2 (01-SL78683-00) to the Master Lease Agreement
dated as of January 15, 1997 by and between the Assignor and Assignee
(collectively the "Lease").
2. Assignor hereby assigns, transfers and sets over to Assignee all of
Assignor's rights under the Agreement except as described in paragraph
4 below. NT hereby consents to such assignment. The rights being
assigned shall include, but are not limited to, all rights of the
Assignor under the Agreement to purchase the Equipment and to receive
the license to use the Software.
3. Assignor hereby delegates and Assignee hereby agrees to perform all of
Assignor's obligations under the Agreement as such obligations relate
to payment of the "Price" (defined as the purchase price of the
Equipment, Services and the license charges for the Software) and any
applicable taxes to the same extent as if the Assignor were the
purchaser under the Agreement. NT agrees that Assignee shall have no
duty to perform any of Assignor's obligations under the Agreement, and
shall not assume any responsibility for any Risk of Loss prior to
delivery of the Equipment and Software to Assignee and any cancellation
or other penalties which may arise under the Agreement, other than the
obligation to pay the Price and any applicable taxes.
4. NT agrees that upon the "Turnover Date" (with respect to any Products
installed by NT, the date on which NT provides the Turnover Notice to
Lessee) rights under the Software license shall vest in Assignor, as
applicable in respect to testing, turnover and acceptance of the
Product(s). NT agrees that title to the Equipment shall vest in
Assignee upon full payment to NT for such Product(s) and that upon full
payment to NT, Assignor shall be granted a personal, non-exclusive,
paid up license to use the version of the Software furnished to
Assignor only in conjunction with Assignor's use of the Equipment with
respect to which such Software was furnished for the life of that
Equipment as it may be repaired or modified. Assignor agrees to abide
by all of the terms and conditions of the Software license as set forth
in Exhibit B of the Network Product Purchase Agreement Number
MC-10/96-DM referenced above between Assignor and NT.
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ASSIGNMENT AND
DELEGATION CONTRACT
DATED FEBRUARY 3, 1997
PAGE 2
5. Nothing contained herein or elsewhere shall be deemed to modify, limit
or expand the rights, warranties, remedies, liabilities and/or any
limitation of right, warranties, remedies and liabilities contained in
the Agreement. Notwithstanding anything in this Assignment and
Delegation to the contrary, neither the Assignor nor the Assignee shall
have any greater rights, warranties or remedies than are provided to
the Buyer under the Agreement. Any rights pertaining to the enforcement
of warranties or remedies under the Agreement shall be for the benefit
of and enforceable solely by Assignor as against NT during the term of
the Lease.
6. NT hereby represents and warrants that the Equipment is "New". NT
hereby agrees to provide Assignee with a xxxx of sale upon written
request following the full payment of the Price to evidence the passage
of title to the Equipment to Assignee free and clear of all claims,
liens and encumbrances.
7. NT, Assignor and Assignee further agree, that after full payment for
Products has been made to NT, with respect to the Software:
(i) NT will look solely to Assignor and relieve Assignee for the
performance of any terms and conditions of the Network Product
Purchase Agreement, Attachments and Exhibit B, the associated
Software License Agreement
(ii) Assignee will obtain no title in the Software except that upon
written request to NT and NT's consent, which consent shall not
be unreasonably withheld, NT grants to Assignee and any successor
to Assignee's title to the Equipment, the right to remarket the
Software upon the occurrence of an Event of Default by the
Assignor under the Lease or upon termination or expiration of the
Lease, provided that NT will have no further obligation to either
Assignee or any subsequent user except to permit the use of the
Software provided that any such subsequent user agrees in writing
to abide by the terms and conditions of the Software license in
full and without any reservation whatsoever.
8. Assignor and NT shall not amend, modify, supplement, rescind, cancel or
terminate any material term of the Agreement without the prior written
consent of Assignee.
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ASSIGNMENT AND
DELEGATION CONTRACT
DATED FEBRUARY 3, 1997
PAGE 3
9. NT agrees to provide Assignee prompt written notice of any change in
configuration (and associated cost) of the Equipment and Software which
occurs prior to the date the Equipment and Software is placed into
service (the "Cutover Date"). NT also agrees to provide Assignee with
prompt written notice of the Cutover Date.
ASSIGNOR: ASSIGNEE:
MIDCOM COMMUNICATIONS INC. COMDISCO, INC.
By:_______________________________ By:____________________________________
Name:_____________________________ Name:__________________________________
printed printed
Title:____________________________ Title:_________________________________
VENDOR:
NORTHERN TELECOM INC.
By:______________________________
Name:____________________________
printed
Title:___________________________
