Exhibit 10.3
[LOGO] IBM Credit Corporation
General Business Lease Agreement
FAX NUMBER: 000-000-0000
Page 1 of 4
[GRAPHIC]
Agreement No: X00000000
Date Prepared: 06/11/96
Program Name: General Business Lease
Quote Letter No: Q0129239201
Attachment No:
Lessor Cust. No: 4692384
B/O No: BKA
CUSTOMER
Customer No: 8749279
Company Name: TELECOMMUNICATIONS SERVICE
CENTER INC
Address: 000 X XXXXXXX 0000
XXXXX, XX 00000-0000
Tel. No.: 000-000-0000
Attn. Xxx Xxxxxxxxx
INSTALLED AT LOCATION
Reference No:
Company Name: TELECOMMUNICATIONS SERVICE
CENTER INC
Address: 000 X XXXXXXX 0000
XXXXX, XX 00000-0000
Tel. No.: 000-000-0000
Attn. Xxx Xxxxxxxxx
FOR THESE RATES TO BE VALID, THIS AGREEMENT MUST BE SIGNED AND RECEIVED BY US
BY: 06M/96.
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Description - Leased Item (Machine, Model), Trans Maint. (A) (B) Single (C = AxB)
Financed Item Code Includ. QTY Unit Price Price
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5716-QU1 QUERY FOR OS/400 V3 S 1 4,800.00 4,800.00
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5716-SS1 OPERATING SYSTEM/400 (R) S 1 5,600.00 5,600.00
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5716-XA1 CLIENT ACCESS FOR OS/400 S 1 1,500.00 1,500.00
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5755-AS4 SYSTEM PROGRAM ORDER S 1 35.00 35.00
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7857-017 MODEM B$ 1 1,500.00 1,500.00
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(Additional Items may be listed on a
Continuation Sheet) Page Total 13,435.00
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(D) Total Amount (E) Term in (F) Interim (G) Payment (H) Payment Amount
Financed Months Rent Frequency Taxes May Apply
(All Pages) Applies:
Monthly
130,912.00 36 NO in Arrears 4,061.00
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Required if Checked (I) Security (J) End of (K) Commencement
Deposit Lease (EOL) by:
*$37,893.00 Designation 06/96
-------------------
Direct Debit |X| FM |_| (L) Rent
Security Deposit |X| $1 |X| Commencement
Guaranty |_| 16,244.00 % ___ Date: 07/22/96
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(*) In the State of Texas the interest rate charges will not exceed the stated
Interest rate.
THIS AGREEMENT CONTAINS THE TERMS FOR THIS TRANSACTION. BY SIGNING BELOW, BOTH
PARTIES ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE
TO TERMS CONTAINED ON THIS PAGE AND THE FOLLOWING PAGES. FURTHER, YOU AGREE THAT
THESE TERMS SUPERSEDE ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND
ALL OTHER COMMUNICATIONS BETWEEN BOTH PARTIES. DELIVERY OF AN EXECUTED
COUNTERPART OF THIS AGREEMENT BY FACSIMILE OR ANY OTHER RELIABLE MEANS SHALL BE
DEEMED TO BE AS EFFECTIVE FOR ALL PURPOSES AS DELIVERY OF THE MANUALLY EXECUTED
COUNTERPART. YOU UNDERSTAND THAT WE MAY MAINTAIN A COPY OF THIS AGREEMENT IN
ELECTRONIC FORM AND AGREE THAT A COPY PRODUCED FROM THE ELECTRONIC FORM OR BY
ANY OTHER RELIABLE MEANS (FOR EXAMPLE, PHOTOCOPY OR FACSIMILE) SHALL IN ALL
RESPECTED BE CONSIDERED EQUIVALENT TO AN ORIGINAL.
Accepted by:
IBM Credit Corporation
For or as Lessor:
By:
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Authorized Signature
---------------------------------------------
Name (Type or Print) Date
TELECOMMUNICATIONS SERVICE CENTER INC
---------------------------------------------
Customer
By: /s/ Xxxxxx Xxxxxxxxx
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Authorized Signature
XXXXXX XXXXXXXXX 6/19/96
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Name (Type or Print) Date
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GUARANTY
To Induce us to enter into this Agreement the undersigned jointly and severally
("Guarantor(s)") unconditionally guarantees the prompt payment when due of all
the Customer's obligations to us under the Lease. We shall not be required to
proceed against the Customer or the Leased Item or enforce any other remedy
before proceeding against the Guarantor(s). The Guarantor(s) agrees to pay all
attorney's fees and other expenses incurred by us by reason of default by the
Customer or the Guarantor(s). The Guarantor(s) waives notice of acceptance
hereof and all other notices or demands of any kind to which the Guarantor(s)
may be entitled. The Guarantor(s) consents to any extensions or modifications of
the the Customer's obligations and release and/or compromise of any obligations
to the Customer or any other obligors or guarantors without in any way releasing
the Guarantor(s) from its obligations hereunder. This guaranty shall bind the
heirs, administrators, representatives, successors, and assigns of the
Guarantor(s), and may be enforced by or for the benefit of any assignee of ours.
THE GUARANTOR(S) CONSENTS TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT,
LOCATED IN THE STATE OF NEW YORK, WITH RESPECT TO ANY LEGAL ACTION COMMENCED
HEREUNDER. THE GUARANTOR(S) EXPRESSLY WAIVES ANY RIGHTS TO A TRIAL BY JURY.
X
---------------------------------------------
Guarantor Signature Date
X
---------------------------------------------
Guarantor Signature Date
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IBM Credit Corporation
General Business Lease Agreement
(Continuation Form)
FAX NUMBER: 000-000-0000
Page 2 of 4
Agreement No: X00000000
Date Prepared: 06/11/96
Program Name: General Business Lease
Quote Letter No: Q0129239201
Attachment No:
Lessor Cust. No: 4692384
B/O No: BKA
CUSTOMER
Customer No: 8749279
Company Name: TELECOMMUNICATIONS SERVICE
CENTER INC
Address: 000 X XXXXXXX 0000
XXXXX, XX 00000-0000
Tel. No.: 000-000-0000
Attn. Xxx Xxxxxxxxx
INSTALLED AT LOCATION
Reference No:
Company Name: TELECOMMUNICATIONS SERVICE
CENTER INC
Address: 000 X XXXXXXX 0000
XXXXX, XX 00000-0000
Tel. No.: 000-000-0000
Attn. Xxx Xxxxxxxxx
FOR THESE RATES TO BE VALID, THIS AGREEMENT MUST BE SIGNED AND RECEIVED BY US
BY: 06M/96.
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Description - Leased Item (Machine, Model), Trans Maint. (A) (B) Single (C = AxB)
Financed Item Code Includ. QTY Unit Price Price
-------------------------------------------------------------------------------------------------
9406-500 'LIC' SYSTEM UNIT B$ 1 74,751.00 74,751.00
-------------------------------------------------------------------------------------------------
9993-005 FINANCING OF SALES TAX S 1 4,600.00 4,600.00
-------------------------------------------------------------------------------------------------
9994-001 COMPLEMENTARY FINANCING CHAR T 1 38,126.00 38,126.00
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*$37,893 Irrevocable Letter of Credit
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Page Total 117,477.00
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Supp. No.: X00000000 ADDITIONAL TERMS Page 3 of 4
1. OUR OFFERINGS. Under this General Business Lease Agreement ("Agreement") we
will lease machines and finance charges listed on the face of this Agreement.
You agree to keep these items (as specified on the face of this Agreement) free
from encumbrances of any kind, except those established by us under this
Agreement. For licensed Programs, we finance the one-time charge for the Program
license.
2. THE TRANSACTION. Each leased or financed line-item listed on the face of this
Agreement (each a "Transaction") is initiated and effective when you sign and we
accept this Agreement. When you sign this Agreement, you assign to us the
exclusive right to purchase the specified Leased Item (as specified on the face
of this Agreement) from the Supplier under the terms of the Supplier's purchase
agreement. Upon installation of the Item, you will provide us a certificate of
acceptance. At our option, the receipt of Supplier's notification may satisfy
our requirement to receive the certificate of acceptance and you shall become
fully obligated to make payments under this Agreement for the item at that time
without having to execute any additional documents. If you fail to provide such
certificate of acceptance or we are not notified by Supplier of the installation
of the item, we shall have no obligation to purchase, lease or finance the items
for which such document or notification are requested. You shall reimburse us,
on demand, any sums we may have paid the Supplier and any expenses we may have
incurred in connection with such Item or Items. When we receive and approve the
certificate of acceptance or Supplier's notification, we will pay Supplier for
the Item, unless otherwise notified by you. After we pay the Supplier for the
Items, you retain all other rights, obligations and limitations under Supplier's
purchase or license agreement in effect at the time we accept this Agreement.
3. TERM AND PAYMENT. The monthly payment amount is specified in Section "H" on
the face of this Agreement ("Payment Amount"). The Transaction will begin on the
date the item is installed or accepted by you whichever comes first
("Transaction Commencement Date"). Rent shall commence on the Rent Commencement
Date. If Section "F" indicating if Interim Rent Applies is marked "NO" on the
face of this Agreement, the Rent Commencement Date shall be the Transaction
Commencement Date, unless otherwise indicated in Section "L" on the face of this
Agreement. If section "F" is marked "YES" the Rent Commencement Date shall be
the first day of the first full payment period following the Transaction
Commencement Date and you shall pay Interim rent for the period of time between
the Transaction Commencement Date and the rent Commencement Date, unless
otherwise indicated in section "L" on the face of this Agreement. The Interm
rent shall be based on the Payment Amount prorated based on a 30-day month. The
Interim rent shall be billed and due as specified on the first invoice. The
Initial term of the Transaction ("Term") begins on the Rent Commencement Date
and continues for the number of months in Section "E" on the face of this
Agreement.
4. PAYMENT PROTECTION. The Payment Amount stated in Section "H" on the face of
this Agreement is fixed, as long as the Transaction Commencement Date Occurs
within the month stated in Section "K" on the face of this Agreement and your
Supplier does not change any Single Unit Price indicated in Section "B" on the
face of this Agreement. If your Supplier changes any Single Unit Price, we will
adjust the Single Unit Price, the Price in Section "C" and the Payment Amount in
Section "H" on the face of this Agreement.
5. DELINQUENT PAYMENTS. It you do not make a payment by its due date, you must
pay us a late charge, ("Late Charge") on demand. The Late Charge is an
additional 2% of the Payment Amount due or the maximum allowed by law, whichever
is less. The Late Charge will accrue on a cumulative basis until the outstanding
Payments and the Late Charges are paid in full.
6. MAXIMUM RATE. It is the parties' intent to enter into a lease. If, however, a
court of competent jurisdiction determines that a Transaction is subject to
usury laws, it is the parties' intention to comply with such laws. Accordingly,
it is agreed at in no event shall any transaction require the payment or permit
the collection of interest in excess of the maximum amount permitted by
applicable law. If any such excess interest is contracted for, charged or
received, then neither you nor any other party liable for payments under this
Agreement shall be obligated to pay such interest in excess of the maximum
amount of interest permitted by applicable law
7. YOUR OBLIGATION TO PAY. Once effective, the Transaction cannot be canceled.
Your obligation to pay all amounts specified in this Agreement is absolute and
unconditional until fully satisfied and will not be affected by any right of
offset or defense of any kind whatsoever. If an item is unsatisfactory for any
reason, you will make any claims you may have solely against the Supplier under
the terms of the Supplier's purchase agreement. Once all payments due and
payable under this Agreement have been made, your obligations under this
Agreement will be satisfied.
8. SECURITY DEPOSIT. Any Security Deposit specified in "I" on the face of this
Agreement shall be held as security until you have satisfied all of your
obligations under this Agreement. We may, at our discretion, apply any Security
Deposit to cure any payment default by you under this Agreement.
9. DIRECT DEBIT AUTHORIZATION. You authorize us to initiate orders for the
payment of money ("Debit Entries") from your deposit account, the same account
on which the Security Deposit check is drawn or which is indicated on an
attached voided check, for all payments under this Agreement. You agree that
this account is and during the Term of the Lease will he maintained for business
purposes, and not for personal, family or household purposes. You agree to
notify us in writing at least sixty (60) days prior to any changes in account
information affecting the processing of Debit Entries. Both parties agree to be
bound by the National Automated Clearing House Association rules relating to
Corporate Trade Payment Entries in the administration of these Debit Entries.
Each Debit Entry amount will be the total amount from an invoice rendered at the
beginning of the calendar month plus any prior Late Charges. The Debit Entry
will be initiated on the last business day of the Calendar month invoiced.
10. OWNERSHIP. All Leased Items and their associated Parts are our personal
property and you will not allow them to become a fixture or realty.
11. INSPECTION AND MARKING. Upon our request, you will permit us to inspect the
Items, their Parts, and their maintenance records. According to our
instructions, you must affix to any Leased Item any identifying labels, tags or
plates we supply.
12. SELECTION AND USE. You are responsible for the selection of, use of, and
results obtained from, any Item. You represent and warrant that the Item will be
used solely for business or commercial purposes and not for personal, family,
consumer or household purposes.
13. DELIVERY AND INSTALLATION. You are responsible for all of the following: a)
arranging for delivery and installation of the Item; b) and delivery and
installation charges; c) inspecting the Item when delivered; d) notifying the
Supplier if any Item is not in good condition or does not correspond to
specifications; e) providing reasonable assistance to identify and correct any
defect or discrepancy; f) complying with all laws, ordinances, rules and
regulations relating to the possession, use, modification or maintenance of the
Item; and g) cooperating with us in the preparation and filing of any protective
UCC-1 financing statements evidencing our interest in the Leased Item.
14. TRANSFER OF WARRANTIES FOR LEASED ITEMS. For Leased Items, we will transfer
to you the benefit of any applicable warranties and patent and copyright
protection available under the Supplier's agreement. If you are not in default
under this Agreement, we warrant that neither we nor anyone acting or claiming
through us, by assignment or otherwise, will interfere with your quiet enjoyment
of the use of the Leased Items. EXCEPT FOR OUR WARRANTY OF QUIET ENJOYMENT, WE
MAKE NO WARRANTY, EXPRESS OR IMPLIED, ABOUT ANY MATTER, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AS TO LESSOR, YOU LEASE THE LEASED ITEM AND TAKE ANY PROGRAM
IN AN "AS IS, WHERE IS" CONDITION IN NO EVENT WILL WE HAVE ANY LIABILITY FOR,
NOR WILL YOU HAVE ANY REMEDY AGAINST US FOR, CONSEQUENTIAL DAMAGES, ANY LOSS OF
PROFITS OR SAVINGS, LOSS OF USE, OR ANY OTHER COMMERCIAL LOSS.
15. MAINTENANCE. You will keep and operate each Item according to the
manufacturer's specifications or recommendations. You will keep the Items in
good repair and operating condition, ordinary wear and tear excepted. For any
Transactions that include maintenance coverage (indicated under the column
headed "Maint. Includ." on the face of this Agreement), we will arrange for
basic maintenance Service on the Item. Coverage will begin at the end of the
manufacturer's warranty period and discontinue at the end of the initial Term.
The cost will be included in the Payment Amount. Coverage beyond the basic
maintenance will be your responsibility. All Parts installed in connection with
warranty and maintenance services will become our property.
16. LEASED ITEM MODIFICATIONS AND ALTERATIONS. You may alter or modify any
Leased Item only with prior written notification to us. Any Lessor-owned Parts
you remove shall remain our property and you are not permitted to make such
Parts available for sale, transfer, exchange or other disposition without our
prior written consent. Before you return a Leased Item to us, you must restore
the Leased Item to its original, unaltered or unmodified condition. At your
expense, you must remove any Alteration or Modification that we do not own, and
restore any original Parts that you have removed. It we consent to a disposition
of the removed parts, the restoration must be with Parts we own or supply, or
those supplied by a source approved by us. All Alterations and Modifications not
removed when a Leased Item is returned to us shall become our property, without
charge, free of encumbrances. You shall have no further interest in such
Alteration or Modification or its proceeds
17. ASSIGNMENT, SUBLEASE AND RELOCATION. You are not permitted to assign,
transfer, sublease or otherwise dispose of this Agreement, any Transaction or
any Item, in whole or in part. Any attempt to do so is void. You may relocate
any Item anywhere in the United States except Arkansas with prior notice to us.
We may assign or grant a security interest(s) in this Agreement, any Transaction
or any Item, in whole or in part. Any claims you have under this Agreement may
be brought only against us, and not against our assignees.
18. END OF LEASE TRANSACTION OPTIONS. To effect an end of lease option, you must
give us one (1) month prior written notice of your desired end of lease option.
If you do not notify us of your end of lease option, or if you elect to conclude
the Transaction and a Leased Item is not returned to us within twelve (12) days
following the end of the Term, the Transaction will automatically extend as
described in Section 19 below. If you are not at default under this Agreement,
you may choose any one of the following options:
Renew the Transaction. You may renew a Transaction with an EOL Designation (as
indicated in Section "J" on the face of the Agreement) of "FM" one or more
times, up to six (6) years from the expiration at the initial Term. The Payment
Amount will be determined using the Fair Market Rental Value of the Leased Item
projected as of the current Transaction expiration date. You may renew a
Transaction with an EOL Designation of a prestated percentage for a renewal Term
of one (1) year. The Payment Amount will be one half (1/2) of the EOL
Designation percentage multiplied by the Single Unit Price for the Leased Item.
The renewal will be paid annually and due in advance.
Purchase the Leased Item. You may purchase a Leased Item at the end of the Term.
For a Leased item with an EOL Designation of "FM", the purchase price will be
determined using the projected Fair Market Sales Value as of the Transaction
expiration date. For a Leased Item with an EOL Designation of a prestated
percentage, the purchase price will be the prestated percentage multiplied by
the Single Unit Price for the Leased Item. For a Leased Item with an EOL
Designation of "$1", the purchase price will be one dollar ($1). You will pay
any applicable taxes, Payment Amounts due through the day before the date of
purchase, any other amounts due, and you will prepay all Financed Items listed
on the face of this Agreement. Upon our receipt of all amounts due under this
Agreement, we will transfer to you our right, title, and interest in and to such
Leased Item on an "As Is, Where Is" basis. We will warrant the title
Supp. No.: X00000000 ADDITIONAL TERMS Page 4 of 4
free and clear only of all encumbrances created by us. Upon your written request
we will provide to you a xxxx of sale.
Conclude the Transaction. You may end the Transaction on its expiration date.
You will have the Leased Items packed and available for pickup within two (2)
business days of such expiration date.
19. LEASE TRANSACTION EXTENSION. it you are not in default under the Agreement,
the Lease Transaction will automatically extend unless you notify us of your
choice of an end of lease option at least one (1) month prior to the end of the
Term or if you elect to conclude the Transaction and the Leased Item is not
returned to us within twelve (12) days following the end of the Term. The
extension will be under the same terms and conditions then in effect, except
that for Leased Items with an EOL Designation of "FM", the Payment Amount will
not be less than the Fair Market Rental Value. The extension will continue until
terminated by either party with one (1) month's prior written notice or six (6)
years after the expiration of the initial Term, whichever comes first.
20. RETURN OF A LEASED ITEM. Unless otherwise agreed. you will be responsible
for all of the following: a) arranging for the deinstallation and return of a
Leased item, freight prepaid, to a location we specify in the continental United
States; b) the cost to qualify any Leased Item for the manufacturer's machine
maintenance service, if available, or the cost to return any Leased Item to good
repair and operating condition if the manufacturer does not offer machine
maintenance service; and c) the cost of any Part or accessory that is not
returned.
21. RISK OF DAMAGE, LOSS OR THEFT. We will pay for, and maintain insurance
covering verified theft of, or damage to, the Leased Items ("Casualty Loss").
The deductible will be $5,000 per incident per location. In the event of a
Casualty Loss, you will promptly notify us. If the Casualty Loss occurs before
the Transaction Commencement Date, the Transaction will terminate without
penalty. If the Casualty Loss occurs on or after the Transaction Commencement
Date and we determine that the Leased Item can be economically repaired, you
will have it repaired and we will reimburse you the reasonable cost of the
repair, less the deductible. If the Leased Item can not be economically
repaired, you will pay us the lesser of $5,000 or the Fair Market Sales Value of
the Leased Item immediately before the Casualty Loss occurred. The Transaction
will terminate effective as of the date of the Casually Loss. At the expiration
of the Transaction Term, it you claim a loss or theft of a Leased Item but have
no police or fire department report to substantiate the loss or theft, we will
consider it an end of lease purchase. You will pay the full purchase price as of
the end of the Term. The insurance and $5,000 deductible will not apply.
22. TAXES AND ADDITIONAL CHARGES. You will pay, as additional Payment Amount,
all taxes and charges levied by any government body in connection with any
Transaction. If requested by us or required by a government body, you will make
these payments directly to the government body and upon request, you will
provide us with proof of payment. It you do not, we reserve the right to make
the payment, whereupon you will reimburse us for the tax or charge and all
related costs. You will not be responsible for taxes based on our net income on
any Item.
23. INDEMNITY. This Agreement is a net lease. You indemnify us for any
[ILLEGIBLE], liability, claim, damage, and expense ("Claim") regarding any
matter arising out of the Transaction, including reasonable legal and collection
fees and expenses. You agree that, upon notice from us of the Claim, you shall
assume full responsibility for the defense the Claim. You shall not be
responsible for any Claim that results only from our sole negligence or willful
misconduct. Your payment shall be in an amount such that after we pay any
required taxes, including taxes on or measured by our net income, the balance
will equal the Claim. The obligations under this Section will survive the
expiration or termination of the Transaction.
24. LIABILITY INSURANCE. You will obtain and maintain liability insurance and
name us as additional insured and loss payee. We shall credit any insurance
benefits paid to us against your obligations under this Agreement. Upon our
request, you will provide us proof of insurance.
25. SUBSTITUTE PERFORMANCE. If you do not maintain liability insurance, pay
taxes and charges as required under this Agreement or discharge any encumbrance
created by you on any Item, we reserve the right to substitute performance. You
will pay us the cost thereof, as additional Payment Amount, together with all
fees and expenses we incur rendering substitute performance on your behalf.
26. AUTHORIZATION TO SIGN FINANCING STATEMENTS. You authorize us to act as your
agent and attorney-in-fact for the limited purpose of preparing, executing in
your name, and filing on your behalf, financing statements or other documents
covering the Transaction for the purpose of evidencing our interest in an Item.
27. EVENTS OF DEFAULT. You will be in default if: a) you do not pay any amount
due under this Agreement within seven (7) days after its due date; b) you
encumber, pledge, sell, assign, transfer, or dispose of this Agreement, any
Transaction or any Lease Item or its Parts; c) you fail to maintain insurance as
required under this Agreement; d) you or any Guarantor of your obligations under
this Agreement make any misrepresentation in a credit application you give us;
e) you make an assignment for the benefit of creditors; f) a trustee or receiver
is appointed for you or for a substantial part of your property, with or without
your consent; g) any petition or proceeding is filed by or against you under any
bankruptcy, insolvency, or similar law; h) you or any Guarantor of your
obligations under this Agreement cease doing business; or i) you or any
Guarantor of your obligations under this Agreement breach any other provision of
this Agreement or of any guaranty of your obligations under this Agreement, or
any other agreement with us, and that breach continues for fifteen (15) days
after we send you written notice.
28. REMEDIES. If you are in default, we may do one or more of the following: a)
declare the Transaction to be in default and all amounts that are due or shall
be due under this Agreement to be immediately due and payable; b) terminate the
Transaction; c) recover from you all amounts that are or will be due; d) attempt
to satisfy amounts due with any Security Deposit or any other collateral pledged
as security; e) repossess or render unusable any or all Items and retain all
payments made as partial compensation for their use and depreciation; f) require
you, at your expense, to assemble and ship any Item to a location we specify; g)
require you to pay an amount equal to then current Payment Amount prorated based
on a 30-day month, for each day any Item is not returned after the twelfth
(12th) day following our request for the Item's return; h) recover from you all
attorney's fees and legal expenses incurred in exercising any of our rights
under this Agreement. If we repossess a Modification, you are responsible for
restoring the remaining machine, at your expense, to good working order. Upon
repossession or return of an Item following a default, we will dispose of it in
a commercially reasonable manner. We will apply the net proceeds of such a
disposition to the unpaid amounts due under the Transaction, after deducting the
following from the proceeds of the disposition: a) in case of a sale, the
estimated Fair Market Sales Value of the Leased Item as of the scheduled
expiration of the Transaction; b) in case of a subsequent lease, the rental
amounts due for any period beyond the scheduled expiration of the Transaction;
and c) our expenses for the repossession and disposition, including reasonable
attorney's fees and expenses. You will pay us any deficiency between the net
proceeds and the unpaid amounts due. We will retain any excess net proceeds. We
may pursue any other remedy available at law or in equity.
29. INVALID OR UNENFORCEABLE PROVISIONS; NO WAIVER. If any provision of this
Agreement is held to be invalid or unenforceable, all other provisions remain in
effect. If we fail to require full performance or if we waive any provision in
this Agreement, that shall not prevent us from requiring full performance of all
provisions in the future.
30. CHANGES. You authorize us to complete any identification information for any
listed item on the face of this Agreement without further authorization from
you. You also authorize us to modify the Single Unit Price, Price and Payment
Amount on the face of this Agreement if your Supplier charges its price to you
for any Item. For any other changes to this Agreement to be valid, both parties
must mutually agree in writing.
31. NOTICES. All notices, consents, and approvals from us will be given by us or
by IBM. They will be delivered personally or mailed to the address specified on
the face of this Agreement or in your monthly billing statement. Notices and
requests from you to us must be submitted to the inquiry at address on your
periodic invoice.
32. YOUR ADDITIONAL REPRESENTATIONS. You represent and covenant that you and any
Guarantor of your obligations under this Agreement are, for Financed Items
located in: a) Ohio, Maryland, Mississippi, Virginia, or West Virginia, a
corporation as defined by the applicable state law; b) Pennsylvania, a business
corporation as defined by Pennsylvania laws; and c) Alabama or Wisconsin, not
purchasing the Financed Item for agricultural purposes.
33. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. BOTH PARTIES TO THIS
AGREEMENT WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING,
COUNTERCLAIM OR ON ANY MATTER ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO
THIS AGREEMENT.
34. DEFINITIONS.
Alteration is any change made to an Item that deviates from the manufacturer's
design.
Deductions are the maximum Accelerated Cost Recovery System deductions for
5-year property and/or deductions for interest expense incurred to finance the
purchase of Leased Items, as defined under the Internal Revenue Code of 1986, as
amended.
Fair Market Rental Value is the value that would be obtained in an arm's length
transaction between an informed and willing lessee and lessor under no
compulsion to lease.
Fair Market Sales Value is the value that would be obtained in an arm's length
transaction between an informed and willing buyer and seller under no compulsion
to buy or sell.
Financed Item is any item you finance with us under the terms of this Agreement
and is listed on the face of this Agreement with a Trans. Code of S or T.
IBM is International Business Machines Corporation
Item is a Leased or Financed Item
Leased Item is any item you lease from us under the terms of this Agreement and
is listed on the face of this Agreement with a Trans. Code of B,B .B+ .B$ .C,C
.C+ ,C$ or L.
Modification is any manufacturer's field installable upgrade, feature, or
accessory added to any Leased Item or Financed Item.
Part is any portion or integral element of a Leased Item.
Program is the following, including features and any whole or partial copies: a)
machine-readable instructions, b) a collection of machine-readable data, such as
a data base; and c) related materials, including documentation and listings, in
any form. The term "Program" includes any Program we finance under this
Agreement.
Supplier is the provider of the Item.
You, Your or Lessee refer to you, our Customer.
We, Us, Our or Lessor refer to: a) IBM Credit Corporation ("IBM Credit"), its
subsidiaries or affiliates; b) a partnership in which IBM Credit is a partner;
c) a business enterprise for which IBM Credit is an agent; or d) a corporation
affiliated with or which files a consolidated or combined tax return with IBM
Credit.
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
IBM Credit Corporation (000) 000-0000
--------------------------------------------------------------------------------
ATTACHMENT TO GENERAL BUSINESS LEASE AGREEMENT
Enterprise No. 8749279 General Business
Lease Agreement No. X00000000
---------
Customer No. 8749279
These terms amend those in the referenced General Business Lease Agreement:
AS/400 TECHNOLOGY UPGRADE OPTION
This Technology Upgrade Option gives you the opportunity to upgrade an Advanced
Series AS/400 to the next generation of technology with a total Payment Amount
for the New Machine (as defined herein) that is the same as your current Payment
Amount. This "flat payment" opportunity applies when the Amount Financed for the
Eligible Upgrade (as defined below) equals a percentage of the Original Amount
Financed (as defined below) as follows:
Initial Lease Term Percent of Original Amount Financed
36 months 30%
48 months 21%
60 months 15%
If the Amount Financed for the Eligible Upgrade is higher or lower than the
above percentage, the "flat payment" financing rate will apply and the Payment
Amount for the Eligible Upgrade will be calculated by multiplying this rate by
the Amount Financed for the Eligible Upgrade. This upgrade option, if exercised,
results in a 12 month extension of the Transaction for the Eligible Machine (the
"Extension Period"). The Transaction for the Eligible Upgrade will be
coterminous with the Eligible Machine extension.
--------------------------------------------------------------------------------
NO CHANGES TO THIS ATTACHMENT ARE AUTHORIZED
June 6, 1996 Attachment No. X00000000-01
1
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
IBM Credit Corporation (000) 000-0000
--------------------------------------------------------------------------------
DEFINITIONS
For the purposes of this Attachment:
a) The following machines and upgrades are eligible under this AS/400
Technology Upgrade Option:
Upgrade From: Upgrade To:
Eligible Machines Eligible Upgrades
-------------- --------------
Type Model Type Model
---- ----- ---- -----
940X 200, 20S 940X 400, 40S
940X 300, 310, 320 940X 500, 510, 530
30S 50S, 53S
940X 400, 40S, 500 Will include any upgrade
510, 530, 50S paths announced by IBM after
February 1, 1996
b) "Original Amount Financed" is the amount stated on the applicable
Transaction.
c) "New Machine" is Equipment resulting from an upgrade of an Eligible
Machine with an Eligible Upgrade. In the case of an upgrade to an Eligible
Machine, modifications installed prior to the acceptance of the Technology
Upgrade Option will not be treated as an Eligible Upgrade ("Non-Eligible
Upgrade").
OPTION
At any time between 6 months and 18 months after installation of an Eligible
Machine, you may, upon one month prior written notice to us, exercise the
Technology Upgrade Option subject to the following conditions:
a) Only Eligible Machines qualify for this option when upgraded with an
Eligible Upgrade.
b) The Term of the Transaction for an Eligible Machine which becomes a New
Machine hereunder shall be extended for the Extension Period.
c) The Transaction for Non-Eligible Upgrades shall be extended for the
--------------------------------------------------------------------------------
NO CHANGES TO THIS ATTACHMENT ARE AUTHORIZED
June 6, 1996 Attachment No. X00000000-01
2
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
IBM Credit Corporation (000) 000-0000
--------------------------------------------------------------------------------
DEFINITIONS
For the purposes of this Attachment:
a) The following machines and upgrades are eligible under this AS/400
Technology Upgrade Option:
Upgrade From: Upgrade To:
Eligible Machines Eligible Upgrades
-------------- --------------
Type Model Type Model
---- ----- ---- -----
940X 200, 20S 940X 400, 40S
940X 300, 310, 320 940X 500, 510, 530
30S 50S, 53S
940X 400, 40S, 500 Will include any upgrade
510, 530, 50S paths announced by IBM after
February 1, 1996
b) "Original Amount Financed" is the amount stated on the applicable
Transaction.
c) "New Machine" is Equipment resulting from an upgrade of an Eligible
Machine with an Eligible Upgrade. In the case of an upgrade to an Eligible
Machine, modifications installed prior to the acceptance of the Technology
Upgrade Option will not be treated as an Eligible Upgrade ("Non-Eligible
Upgrade").
OPTION
At any time between 6 months and 18 months after installation of an Eligible
Machine, you may, upon one month prior written notice to us, exercise the
Technology Upgrade Option subject to the following conditions:
a) Only Eligible Machines qualify for this option when upgraded with an
Eligible Upgrade.
b) The Term of the Transaction for an Eligible Machine which becomes a New
Machine hereunder shall be extended for the Extension Period.
c) The Transaction for Non-Eligible Upgrades shall be extended for the
--------------------------------------------------------------------------------
NO CHANGES TO THIS ATTACHMENT ARE AUTHORIZED
June 6, 1996 Attachment No. X00000000-01
2
