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EXHIBIT 10.10
IBM CREDIT CORPORATION Xxxxxxxx, XX 00000
TERM LEASE MASTER AGREEMENT
Name and Address of Lessee: Agreement No.:
IBM Branch Office No.:
IBM Branch Office Address: IBM Customer No.:
The Lessor pursuant to this Term Lease Master Agreement (Agreement) will be (a)
IBM Credit Corporation, or a subsidiary or affiliate thereof, (b) a partnership
in which IBM Credit Corporation is a partner, or (c) a related business
enterprise for whom IBM Credit Corporation is the agent (Lessor). The subject
matter of the lease shall be machines, field installable upgrades, feature
additions or accessories marketed by International Business Machines Corporation
(IBM) and shall be referred to as Equipment. Any lease transaction requested by
Lessee and accepted by Lessor shall be specified in a Term Lease Supplement
(Supplement). A Supplement shall refer to and incorporate by reference this
Agreement and, when signed by the parties, shall constitute the lease (Lease)
for the Equipment specified therein. Additional details pertaining to a Lease
shall be specified in a Supplement. A Supplement may also specify additional
terms and conditions as well as other amounts to be financed (Financing).
Financing may include licensed program material charges (LPM Charges) for
licensed programs marketed by IBM under the referenced IBM license agreement
(License Agreement).
1. OPTIONS. The Supplement shall designate various lease and financing
options. Option A is a Lease available only for Modifications (Paragraph 23) to
Equipment under Option A prior to enactment of the Tax Reform Act of 1986.
Option B is a Lease with a fair market purchase option at the end of the Lease.
For Equipment under Option B Prime (B*), Lessor assumes for tax purposes that
Lessee is the owner. For financing LPM Charges, Option S will apply.
2. CREDIT REVIEW. For each Lease, Lessee consents to any reasonable
credit investigation and review by Lessor.
3. AGREEMENT TERM. This Agreement shall be effective when signed by both
parties and may be terminated by either party upon one month's notice. However,
each Lease then in effect shall survive any termination of this Agreement.
4. CHANGES. Lessor may, upon prior written notice, change the terms and
conditions of this Agreement. Any change will apply on the effective date
specified in the notice to Leases which have an Estimated Shipment Date, or
Effective Date for Additional License, one month or more after the date of the
notice. By notice to Lessor in writing prior to delivery, or Effective Date for
Additional License, and within 15 days after receipt of such notice. Lessee may
terminate the Lease for an affected item. Otherwise, the change shall apply.
5. ADVANCE RENT. Lessee shall pay to Lessor, prior to Lessor's
acceptance of a Lease, Advance Rent, if specified. Advance Rent shall be
refunded if Lessor for any reason does not accept the Lease or Lessee terminates
the Lease in accordance with Paragraph 4, 12 or 15.
6. SELECTION AND USE OF EQUIPMENT, PROGRAMMING AND LICENSED PROGRAM
MATERIALS. Lessee agrees that it shall be responsible for the selection, use
of, and results obtained from, the Equipment, any programming supplied by IBM
without additional charge for use on the Equipment (Programming), licensed
program materials, and any other associated equipment, programs or services.
7. ASSIGNMENT TO LESSOR. Lessee hereby assigns, exclusively to Lessor,
Lessee's right to purchase the Equipment from IBM. This assignment is effective
when Lessor accepts the applicable Supplement and Lessor shall then be obligated
to purchase and pay for the Equipment. Other than the obligation to pay the
purchase price, all responsibilities and limitations applicable to Customer as
defined in the referenced IBM purchase agreement in effect at the time the Lease
is accepted by Lessor (Purchase Agreement) shall apply to Lessee.
If the Equipment is subject to a volume procurement amendment to the
Purchase Agreement or to another discount offering, (a) Lessor will pay the same
amount for the Equipment that would have been payable by Lessee, and (b) Lessee
will remain responsible to IBM for any late order change charges, settlement
charges, adjustment charges or any other charges incurred under the volume
procurement amendment or other discount offering.
8. LEASE NOT CANCELLABLE; LESSEE'S OBLIGATIONS ABSOLUTE. Lessee's
obligation to pay shall be absolute and unconditional and shall not be subject
to any delay, reduction, set-off, defense, counterclaim or recoupment for any
reason whatsoever, including any failure of the Equipment, Programming or
licensed program materials or any representations by IBM. If the Equipment,
Programming or licensed program materials are unsatisfactory for any reason,
Lessee shall make any claim solely against IBM and shall, nevertheless, pay
Lessor all amounts payable under the Lease.
9. WARRANTIES. Lessor grants to Lessee the benefit of any and all
warranties made available by IBM in the Purchase Agreement. Lessor warrants
that neither Lessor nor anyone acting or claiming through Lessor, by assignment
or otherwise, will interfere with Lessee's quiet enjoyment of the use of the
Equipment so long as no event of default shall have occurred and be continuing.
EXCEPT FOR LESSOR'S WARRANTY OF QUIET ENJOYMENT, LESSOR MAKES NO WARRANTY,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
AS TO LESSOR, LESSEE LEASES THE EQUIPMENT AND TAKES
THE ADDITIONAL TERMS AND CONDITIONS ON PAGES 2 THROUGH 4 ARE PART OF THIS
AGREEMENT.
LESSEE ACKNOWLEDGES THAT LESSEE HAS READ THIS AGREEMENT AND ITS SUPPLEMENT,
UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS.
FURTHER, LESSEE AGREES THAT THIS AGREEMENT AND ITS SUPPLEMENT ARE THE COMPLETE
AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, SUPERSEDING ALL
PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS
BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
Accepted by: /s/ SMS GEOTRAC
IBM CREDIT CORPORATION ----------------------------------------
Lessee
By /s/ Xxxxxx Xxxxxx By /s/ Xxxxxx X. Xxxxx, President
------------------------------------- -------------------------------------
Authorized Signature Authorized Signature
Xxxxxx Xxxxxx 7/11/95 XXXXXX X. XXXXX 6/30/95
------------------------------------- -------------------------------------
Name (Type or Print) Date Name (Type or Print) Date
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ANY PROGRAMMING "AS IS" IN NO EVENT SHALL LESSOR HAVE ANY LIABILITY FOR, NOR
SHALL LESSEE HAVE ANY REMEDY AGAINST LESSOR FOR, CONSEQUENTIAL DAMAGES, ANY
LOSS OF PROFITS OR SAVINGS, LOSS OF USE, OR ANY OTHER COMMERCIAL LOSS.
10. LESSEE AUTHORIZATION. So long as Lessee is not in default under
the Lease (a) Lessee is authorized to act on Lessor's behalf concerning
delivery and installation of the Equipment, any IBM warranty service for the
Equipment, and any programming services for the Programming, and (b) Lessee
shall have, solely for these purposes, all rights Lessor may have against IBM
under the Purchase Agreement. The foregoing authorization shall not constitute
any surrender of Lessor's interest in the Equipment.
11. DELIVERY AND INSTALLATION. Lessee shall arrange with IBM for the
delivery of the Equipment at the Equipment Location. Lessee shall pay any
delivery and installation charges. Lessor shall not be liable to Lessee for any
delay in, or failure of, delivery of the Equipment and Programming. Lessee
shall examine the Equipment and Programming immediately upon delivery. If the
Equipment is not in good condition or the Equipment or Programming does not
correspond to IBM's specifications, Lessee shall promptly give IBM written
notice and shall provide IBM reasonable assistance to cure the defect or
discrepancy.
12. LATE DELIVERY. If the Equipment or licensed program materials are
not delivered to the Equipment Location on or before the 15th day after the
Estimated Shipment Date, Lessor may, upon written notice to Lessee, increase
the Lease Rate. Lessee may terminate the Lease for the affected item by giving
Lessor written notice prior to delivery. Otherwise, the Rent shall be adjusted
to reflect such increase.
13. RENT COMMENCEMENT DATE. The Rent Commencement Date, unless
otherwise specified in the Supplement, shall be the date payment is due IBM
under the applicable referenced agreement. Lessee shall be notified of the Rent
Commencement Date and the serial numbers of the Equipment.
14. LEASE TERM. The Lease shall be effective when signed by both
parties. The initial Term of the Lease shall expire at the end of the number of
Payment Periods, specified as "Term" in the Supplement, after the Rent
Commencement Date. However, obligations under the Lease shall continue until
they have been performed in full.
15. RATE PROTECTION. Unless modified pursuant to Paragraph 12, the
Rent shall be based on the Lease Rate specified in the Supplement or such
greater Lease Rate as may be specified by written notice to Lessee more than
one month before the Estimated Shipment Date or Effective Date for Additional
License. By notice to Lessor in writing prior to delivery, or Effective Date
for Additional License, and within 15 days after receipt of such notice. Lessee
may terminate the Lease for the affected item. Otherwise, the Rent shall be
adjusted to reflect the increase. The Unit Purchase Price and IBM Charges are
subject to change in accordance with the referenced agreements.
16. RENT. During the initial Term, Lessee shall pay Lessor, for each
Payment Period. Rent as determined in Paragraph 15. Lessee's obligation to pay
shall begin on the Rent Commencement Date. Rent will be invoiced in advance as
of the first day of each Payment Period and will be due on the day following
the last day of the Payment Period. When the Rent Commencement Date is not on
the first day of a calendar month and/or when the initial Term does not expire
on the last day of a calendar month, the applicable Rent will be prorated on
the basis of 30-day months. Advance Rent, if any, will be applied to the
initial invoice(s).
17. RENEWAL. If Lessee is not then in default under the Lease, Lessee
may renew the Lease one or more times but not beyond six years from the
expiration of the initial Term. Lessor shall offer renewal Terms of one year
and may offer longer Terms if then generally available. For a renewal Term,
upon request by Lessee, at least five months prior to Lease expiration, Lessor
shall notify Lessee, at least four months prior to expiration, of the Rent, any
changes to the Payment Period and due dates, and of any required Purchase
Option or Renewal Option Percents not specified in the Supplement. The Rent
shall be objectively determined by Lessor by using the projected fair market
rental value of the Equipment as of the commencement of such renewal Term.
However, for Option B', the Rent shall be as specified in the Supplement. Lessee
may renew for any renewal Term only by so notifying Lessor in writing at least
three months before expiration.
18. PURCHASE OF EQUIPMENT. If Lessee is not then in default under the
Lease, Lessee may, upon three months prior written notice to Lessor, purchase
Equipment upon expiration of the Lease. Under Option A or B, the purchase price
shall be objectively determined by Lessor by using the projected fair market
sale value of the Equipment as of such expiration date plus, for Equipment
under Option A, any recapture of investment tax credit and any tax due thereon.
Under Option B Prime (B') the purchase price shall be an amount determined by
multiplying the Unit Purchase Price by the Purchase Option Percent for such
Equipment.
If Lessee purchases any Equipment, Lessee shall, on or before the date
of purchase, pay to Lessor the purchase price, any applicable taxes, all Rent
due through the day preceding the date of purchase, any other amounts due, and
the prepayment of Financing (Paragraph 35). Lessor shall, on the date of
purchase, transfer to Lessee by xxxx of sale, without recourse or warranty of
any kind, express or implied, all of Lessor's right, title and interest in and
such Equipment on an "As Is, Where Is" basis except that Lessor shall warrant
title free and clear of all encumbrances.
19. OPTIONAL EXTENSION. If Lessee has not elected to renew or
purchase, and as long as Lessee is not in default under the Lease, the Lease
will be extended unless Lessee notifies Lessor in writing, not less than three
months prior to Lease expiration, that Lessee does not want the extension. The
extension will be under the same terms and conditions then in effect, including
Rent (but, for Options A or B, not less than fair market rental value) and will
continue until the earlier of termination by either party, up to three months'
prior written notice or six years after expiration of the initial Term.
20. INSPECTION; MARKING; FINANCING STATEMENTS. Upon request, Lessee
shall make the Equipment and its maintenance records available for inspection
by Lessor during Lessee's normal business hours. Lessee shall affix to the
Equipment any labels indicating ownership supplied by Lessor. Lessee shall
execute and deliver to Lessor for filing any Uniform Commercial Code financing
statements or similar documents Lessor may reasonably request.
21. EQUIPMENT USE. Lessee agrees that Equipment will be operated by
competent, qualified personnel, in accordance with applicable operating
instructions, laws and government regulations and that Equipment under Option A
will be used only for business purposes.
22. MAINTENANCE. Lessee, at its expense, shall keep the Equipment in a
suitable environment as specified by IBM and in good condition and working
order, ordinary wear and tear excepted.
23. ALTERATIONS; MODIFICATIONS; PARTS. Lessee may alter or modify the
Equipment only upon written notice to Lessor. Any non-IBM alteration is to be
removed and the Equipment restored to its normal, unaltered condition at
Lessee's expense prior to its return to Lessor. At Lessee's option, any IBM
field installation, upgrade, feature addition or accessory added to any item of
Equipment (Modification) may be removed. If removed, the Equipment is to be
restored at Lessee's expense to its normal, unmodified condition. If not
removed, such Modification shall, upon return of the Equipment, become, without
charge, the property of Lessor free of all encumbrances. Restoration will
include replacement of any parts removed in connection with the installation of
an alteration or Modification. Any part installed in connection with warranty
or maintenance service shall be the property of Lessor.
24. LEASES FOR MODIFICATIONS AND ADDITIONS. Lessor will arrange for
leasing of Modifications and Additions under terms and conditions then
generally in effect, subject to satisfactory credit review. Additions shall be
machines, or IBM Charges for licensed program materials, which are associated
with the Equipment. These Modifications and Additions must be ordered by Lessee
from IBM. Any lease for Modifications shall, and any lease for Additions may,
expire at the same time as the Lease for the Equipment. The rent shall be
determined by Lessor as specified in a Supplement. If Lessee purchases
Equipment prior to Lease expiration, Lessee shall simultaneously purchase any
Modifications under the Lease.
25. RETURN OF EQUIPMENT. Upon expiration or termination of the Lease
for any item of Equipment, or upon demand by Lessor pursuant to Xxxxxxxxx 00,
Xxxxxx shall promptly return the Equipment, freight prepaid, to a location in
the continental United States specified by Lessor. Except for Casualty Loss,
Lessee shall pay any costs and expenses incurred by Lessor to inspect
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qualify the Equipment for IBM's maintenance agreement service. Any parts
removed in connection therewith shall become Lessor's property.
26. CASUALTY INSURANCE; LOSS OR DAMAGE. Lessor will maintain, at its
own expense, insurance covering loss of or damage to the Equipment (but
excluding any Modifications not subject to a Lease and any non-IBM alterations)
with a $5,000 deductible per incident. If any item of Equipment shall be lost,
stolen, destroyed or irreparably damaged for any cause whatsoever (Casualty
Loss) before the Date of Installation as defined in the Purchase Agreement, the
Lease for that item shall terminate. If any item of Equipment suffers Casualty
Loss, or shall be otherwise damaged, on or after the Date of Installation,
Lessee shall promptly inform Lessor. If Lessor determines that the item can be
economically repaired, Lessee shall place the item in good condition and
working order and Lessor will reimburse Lessee the reasonable cost of such
repair, less the deductible. If not so repairable, Lessee shall pay Lessor the
lesser of $5,000 or the fair market value of the Equipment immediately prior to
the Casualty Loss. Upon Lessor's receipt of payment the Lease for that item
shall terminate.
27. TAXES. Lessee shall promptly reimburse Lessor for, or shall pay
directly if so requested by Lessor, as additional Rent, all taxes, charges, and
fees imposed or levied by any governmental body or agency upon or in
connection with the purchase, ownership, leasing, possession, use or
relocation of the Equipment or Programming or in connection with the financing
of LPM Charges or otherwise in connection with the transactions contemplated by
the Lease, excluding, however, all taxes on or measured by the net income of
Lessor. Upon request, Lessee will provide proof of payment. Any other taxes,
charges and fees relating to the licensing, possession or use of licensed
program materials will be governed by the License Agreement.
28. LESSOR'S PAYMENT. If Lessee fails to perform its obligations under
Paragraph 27 or 31 or to discharge any encumbrances created by Lessee, Lessor
shall have the right to substitute performance, in which case, Lessee shall pay
Lessor the cost thereof.
29. TAX INDEMNIFICATION (APPLIES ONLY FOR EQUIPMENT UNDER OPTIONS A OR
B). The Lease is entered into on the basis that under the Internal Revenue Code
of 1986, as amended (Code), Lessor shall be entitled to (1) maximum Accelerated
Cost Recovery System (ACRS) deductions for 5-year property, and (2) deductions
for interest expense incurred to finance purchase of the Equipment. The
Bulletin "Lessor's Tax Assumptions" will be given to Lessee on request.
Lessee represents, warrants and covenants that at all times during the
Lease:
(a) no item of Equipment will constitute "public utility property" as
defined in the Code;
(b) Lessee will not make any election under the Code or take any
action, or fail to take any action, if such election, action or failure to act
would cause any item of Equipment to cease to be eligible for any ACRS
deductions or interest deductions;
(c) Lessee will keep and make available to Lessor the records required
to establish the matters referred to in this Paragraph 29; and
(d) for Equipment located in a United States possession, Lessee
represents that Lessee is a tax exempt entity as defined in the Code.
Furthermore, if Lessee is a tax exempt entity, Lessee covenants that
it will not renew or extend the Lease if such action shall cause Lessor a Tax
Loss as described below.
If, as a result of any act, failure to act, misrepresentation,
inaccuracy, or breach of any warranty or covenant, or default under the Lease,
by Lessee, an affiliate of Lessee, or any person who shall obtain the use of
possession of any item of Equipment through Lessee. Lessor shall lose the right
to claim or shall suffer any disallowance or recapture of all or any portion of
any ACRS deductions or interest deductions (Tax Loss) with respect to any item
of Equipment, then, promptly upon written notice to Lessee that a Tax Loss has
occurred, Lessee shall reimburse Lessor the amount determined below.
The reimbursement shall be an amount that, in the reasonable opinion
of Lessor, shall make Lessor's after-tax rate of return and cash flows
(Financial Returns), over the term of the Lease for such item of Equipment,
equal to the expected Financial Returns that would have been otherwise
available. The reimbursement shall take into account the effects of any
interest, penalties and additions to tax required to be paid by Lessor as a
result of such Tax Loss and all taxes required to be paid by Lessor as a result
of any payments pursuant to this paragraph. Financial Returns shall be based on
economic and tax assumptions used by Lessor in entering into the Lease.
All the rights and privileges of Lessor arising from this Paragraph 29
shall survive the expiration or termination of the Lease.
For purposes of determining tax effects under Paragraphs 18, 27, 29
and 30, the term "Lessor" shall include, to the extent of interests, any
partner in Lessor and any affiliated group of corporations, and each member
thereof, of which Lessor or any such partner is or shall become a member and
with which Lessor or any such partner joins in the filing of consolidated or
combined returns.
30. GENERAL INDEMNITY. This Lease is a net lease. Therefore, Lessee
shall indemnify Lessor against, and hold Lessee harmless from, any and all
claims, actions, damages, obligations, liabilities and liens; and all costs and
expenses, including legal fees, incurred by Lessor in connection therewith;
arising out of the Lease including, without limitation, the purchase, ownership,
lease, licensing, possession, maintenance, condition, use or return of the
Equipment, Programming or licensed program materials; or arising by operation of
law, excluding, however, any of the foregoing which result from the sole
negligence or willful misconduct of Lessor. Lessee agrees that upon written
notice by Lessor of the assertion of any claim, action, damage, obligation,
liability or lien, Lessee shall assume full responsibility for the defense
thereof. Any payment pursuant to this paragraph shall be of such amount as shall
be necessary so that, after payment of any taxes required to be paid thereon by
Lessor, including taxes on or measured by the net income of Lessor, the balance
will equal the amount due hereunder. Lessee's obligations under this paragraph
shall not constitute a guarantee of the residual value or useful life of any
item of Equipment or a guarantee of any debt of Lessor. The provisions of this
paragraph with regard to matters arising during the Lease shall survive the
expiration or termination of the Lease.
31. LIABILITY INSURANCE. Lessee shall obtain and maintain
comprehensive general liability insurance, in an amount of $1,000,000 or more
for each occurrence, with an insurer having a "Best's Policyholders" rating of
B+ or better. The policy shall name Lessor as an additional insured as Lessor's
interest may appear and shall contain a clause requiring the insurer to give
Lessor at least one month's prior written notice of the cancellation, or any
alteration in the terms, of the policy. Lessee shall furnish to Lessor, upon
request, evidence that such insurance coverage is in effect.
32. SUBLEASE AND RELOCATION OF EQUIPMENT: ASSIGNMENT BY LESSEE. Upon
Lessor's prior written consent, which will not be unreasonably withheld, Lessee
may sublet the Equipment or relocate it from the Equipment Location. No sublease
or relocation shall relieve Lessee of its obligations under the Lease. In no
event shall Lessee remove the Equipment from the United States. Lessee shall not
assign, transfer or otherwise dispose of the Lease or Equipment, or any interest
therein, or create or suffer any xxxx, xxxx or encumbrance thereof except those
created by Lessor.
33. ASSIGNMENT BY LESSOR. Lessee acknowledges and understands that the
terms and conditions of the Lease have been fixed to enable Lessor to sell and
assign its interest or grant a security interest or interests in the Lease and
the Equipment individually or together, in whole or in part, for the purpose of
securing loans to Lessor or otherwise. If Lessee is given written notice of any
assignment, it shall promptly acknowledge receipt thereof in writing. Each such
assignee shall have all of the rights of Lessor under the Lease. Lessee shall
not assert against any such assignee any set-off, defense or counterclaim that
Lessee may have against Lessor or any other person. Lessor shall not be
relieved of its obligations hereunder as a result of any such assignment unless
Lessee expressly consents thereto.
34. FINANCING. If the Lease provides for financing of LPM Charges,
Lessor will pay such Charges directly to IBM. Any other charges due IBM under
the License Agreement shall be paid directly to IBM by Lessee. Lessee's
obligation to pay Rent shall not be affected by any discontinuance, return or
destruction of any license or licensed program materials under the License
Agreement on or after the date LPM Charges are due. If Lessee discontinues any
of the licensed program materials in accordance with the terms of the License
Agreement prior to the date LPM Charges are due, the financing of affected LPM
Charges shall be cancelled.
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35. FINANCING PREPAYMENT (Does Not Apply For Items of Equipment). Lessee
may terminate an item of Financing (but not an item of Equipment) by prepaying
its remaining Rent. Lessee shall provide Lessor with notice of the intended
prepayment date which shall be at least one month after the date of the notice.
Lessor may, depending on market conditions at the time, make an adjustment in
the remaining Rent to reflect such prepayment and shall advise Lessee of the
balance to be paid. If, prior to Lease expiration, Lessee purchases the
Equipment or if the Lease is terminated, Lessee shall at the same time prepay
any related Financing including that for programs licensed to the Equipment.
36. DELINQUENT PAYMENTS. If any amount to be paid to Lessor is not paid
on or before its due date, Lessee shall pay Lessor on demand 2% of such late
payment for each month or part thereof from the due date until the date paid or,
if less, the maximum allowed by law.
37. DEFAULT; NO WAIVER. Lessee shall be in default under the Lease upon
the occurrence of any of the following events: (a) Lessee fails to pay when due
any amount required to be paid by Lessee under the Lease and such failure shall
continue for a period of seven days after the due date; (b) Lessee fails to
perform any other provisions under the Lease or violates any of the covenants or
representations made by Lessee in the Lease, or Lessee fails to perform any of
its obligations under any other Lease entered into pursuant to this Agreement,
and such failure or breach shall continue unremedied for a period of 15 days
after written notice is received by Lessee from Lessor; (c) Lessee violates any
of the covenants or representations made by Lessee in any application for credit
or in any agreement with IBM with respect to the Equipment or licensed program
materials or fails to perform any provision in any such agreement (except the
obligation to pay the purchase price or LPM Charges); (d) Lessee makes an
assignment for the benefit of creditors, whether voluntary or involuntary, or
consents to the appointment of a trustee or receiver, or if either shall be
appointed for Lessee or for a substantial part of its property without its
consent; (e) any petition or proceeding if filed by or against Lessee under any
Federal or State bankruptcy or insolvency code or similar law, or (f) if
applicable, Lessee makes a bulk transfer subject to the provisions of the
Uniform Commercial Code.
Any failure of Lessor to require strict performance by Lessee or any waiver
by Lessor of any provision in the Lease shall not be construed as a consent or
waiver of any other breach of the same or of any other provision.
38. REMEDIES. If Lessee is in default under the Lease, Lessor shall have
the right, in its sole discretion, to exercise any one or more of the following
remedies in order to protect its interests, reasonably expected profits and
economic benefits. Lessor may (a) declare any Lease entered into pursuant to
this Agreement to be in default; (b) terminate in whole or in part any Lease;
(c) recover from Lessee any and all amounts then due and to become due; (d) take
possession of any or all items of Equipment, wherever located, without demand or
notice, without any court order or other process of law; and (e) demand that
Lessee return any or all such items of Equipment to Lessor in accordance with
Paragraph 25 and, for each day that Lessee shall fail to return any item of
Equipment, Lessor may demand an amount equal to the Rent, prorated on the basis
of a 30-day month, in effect immediately prior to such default. Upon
repossession or return of such item or items of Equipment, Lessor shall sell,
lease or otherwise dispose of such item or items in a commercially reasonable
matter, with or without notice and on public or private bid, and apply the net
proceeds thereof towards the amounts due under the Lease but only after
deducting (i) in the case of sale, the estimated fair market value of such item
or items as of the scheduled expiration of the Lease; or (ii) in the case of any
replacement lease, the rent due for any period beyond the scheduled expiration
of the Lease for such item or items (iii) in either case, all expenses,
including legal fees, incurred in connection therewith; and (iv) where
appropriate, any amount in accordance with Paragraph 29. Any excess net proceeds
are to be retained by Lessor. Lessor may pursue any other remedy available at
law or in equity, including, but not limited to, seeking damages, specific
performance and an injunction.
No right or remedy is exclusive of any other provided herein permitted by
law or equity. All such rights and remedies shall be cumulative and may be
enforced concurrently or individually from time to time.
39. LESSOR'S EXPENSE. Lessee shall pay Lessor on demand all costs and
expense, including legal and collection fees incurred by Lessor in enforcing the
terms, conditions or provisions of the Lease or in protecting Lessor's rights
and interests in the Lease and the Equipment.
40. OWNERSHIP; PERSONAL PROPERTY; LICENSE PROGRAM MATERIALS. The
Equipment under Lease is and shall be the property of Lessor. Lessee shall have
no right, title or interest therein except as set forth in the Lease. The
Equipment is and shall at all times be and remain, personal property and shall
not become a fixture or realty. Licensed program materials are licensed and
provided by IBM directly to Lessee under the terms and conditions of the License
Agreement.
41. NOTICES; ADMINISTRATION. Service of all notices under the Lease shall
be sufficient if delivered personally or mailed to Lessee at its address
specified in the Supplement or to IBM Credit Corporation as Lessor in care of
the IBM Branch Office specified in the Supplement. Notice by mail shall be
effective when deposited in the United States mail, duly addressed and with
postage prepaid. Notices, consents and approvals from or by Lessor shall be
given by Lessor or on its behalf by IBM and all payments shall be made to IBM
until Lessor shall notify Lessee otherwise.
42. LESSEE REPRESENTATION. If the Lease includes financing, Lessee
represents that it is (a) a corporation if any item of Equipment is located in
Ohio, Mississippi, Virginia or West Virginia, and/or (b) a business corporation
if any item of Equipment is located in Pennsylvania.
43. REVISIONS FOR PREVIOUSLY INSTALLED EQUIPMENT. Equipment installed
with Lessee under an IBM lease or rental agreement may be purchased by Lessor,
on the Effective Date of Purchase (as defined in the Purchase Agreement), for
lease to Lessee under Option B or B*. For such Equipment, the Lease shall be
revised as follows:
Paragraphs 4 and 26 -- replace "Estimated Shipment Date" by "Intended
Effective Date of Purchase"; replace "delivery" and "Date of Installation" by
"Effective Date of Purchase";
Paragraph 7 -- add at the end of the first paragraph, "Assignment of the
option to purchase installed Equipment at the net purchase option price under an
IBM lease or rental agreement will be permitted only when Lessee submits the
Supplement in sufficient time to achieve the Intended Effective Date of
Purchase. The Effective Date of Purchase under this assignment shall be the
later of the first day of the Quotation Month or the day on which the applicable
Supplement is accepted by Lessor. If the Quotation Month expires and the
purchase of Equipment is not concluded, this assignment and Lease will be null
and void regarding any such Equipment and all rights, duties and obligations of
Lessee and IBM will remain in accordance with the provisions of the IBM
agreement under which the Equipment is currently installed";
Paragraphs 11 and 12 -- delete both paragraphs, and
Paragraph 15 -- replace the entire paragraph with the following: "The Rent
shall be based on the Lease Rate specified in the Supplement or such greater
Lease Rate as may be specified by written notice to Lessee more than one month
before the Effective Date of Purchase. The Unit Purchase Price is subject to
change in accordance with the referenced Purchase Agreement. Lessee may
terminate the Lease for an item subject to an increase by giving Lessor written
notice on or before the Effective Date of Purchase.
44. APPLICABLE LAW; SEVERABILITY. The Lease shall be governed by the laws
of the State of Connecticut. If any provision shall be held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions shall
not in any way be affected or impaired.
