DATA SALES CO., INC.
0000 xxxx xxxxxxxxxx xxxxxxx - xxxxxxxxxx, xx 00000
000-000-0000 - fax 000-000-0000
ELECTRONIC EQUIPMENT LEASE
Adaytum Software Inc. 3-9735
------------------------------ --------------------------------
Name of Lessee Lease No.
0000 Xxxxxxxxx Xxxxx 6/8/98
------------------------------ --------------------------------
Street Address Date
Xxxxxxxxxxx, XX 00000
------------------------------
City, State & Zip Code
1. LEASE:
Data Sales Co., Inc. ("Lessor"), by its acceptance hereof at its home office,
agrees to lease to Lessee and Lessee agrees to lease from Lessor, in accordance
with the terms and conditions hereinafter set forth, the Equipment and/or
features (the "Equipment") described in such Equipment Schedule(s), as may be
executed from time to time, to be attached hereto and made a part hereof (the
"Equipment Schedule(s)"). Any reference to the "Lease" shall mean this Equipment
Lease Agreement, the Equipment Schedule(s), and any amendments, addenda or
riders thereto.
2. DEFINITIONS:
A. The "Installation Date" means the date determined in accordance with
the Equipment Schedule.
B. The "Commencement Date" means the first day of the month following
the Installation Date, unless the Installation Date occurs on the first day
of a month, in which case the Commencement Date shall be the Installation
Date.
3. TERM OF LEASE:
The term of the Lease as to Equipment designated on the Equipment Schedule shall
begin on the Installation Date in accordance with the Equipment Schedule, and
shall continue for an initial period ending that number of months from the
Commencement Date as is specified on the Equipment Schedule (the "Initial
Term").
This lease shall remain in force until terminated by Lessee or Lessor upon no
less than two (2) months prior written notice to the other party; provided,
however, that any such termination shall
be effective only on the last day of the Initial Term, or the last day of any
successive extension rental period.
4. RENTAL CHARGES:
The monthly rental charge for each item of Equipment, as set forth in the
applicable Equipment Schedule, shall begin to accrue on the Installation Date of
the Equipment and shall be due and payable by Lessee in advance on the first day
of each month. If the Installation Date does not fall on the first day of the
month, the rental for that period of time from the Installation Date until the
first day of the succeeding month shall be a pro rata portion of the monthly
rental charge, calculated on a 30-day basis, due and payable on the Installation
Date.
5. PAYMENT OF TAXES:
Lessee shall also pay all taxes, however designated, which are levied or based
on the Lease, the Equipment or its use, lease, operation, control or value,
including, without limitation, personal property taxes, state and local
privilege or excise taxes based on gross revenue, and any penalties or interest
in connection therewith, or taxes or amounts in lieu thereof paid or payable by
Lessor or Lessee in respect of the foregoing, but excluding taxes based on
Lessor's net income. Charges for taxes, penalties and interest, if any, shall be
promptly paid by Lessee. In the event Lessee defaults in the payment of any such
tax, Lessor may pay such tax and shall be reimbursed by Lessee, with interest
(plus attorneys' fees and costs if any) as additional rent.
6. ENFORCEMENT OF WARRANTY:
THE EXPRESS WARRANTIES HEREIN CONTAINED ARE IN LIEU OF ANY AND ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY AND OF
FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY AS TO INFRINGEMENT OR THE LIKE,
ALL OF WHICH ARE DISCLAIMED.
Lessee acknowledges that it is not relying on Lessor's skill or judgment to
select or furnish goods suitable for any particular purpose and that there are
no warranties which are not contained in this Agreement. LESSOR SHALL NOT BE
LIABLE FOR DAMAGES, INCLUDING SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
arising out of or in connection with the performance of the Equipment or the use
by Lessee and shall not be liable for any special, incidental or consequential
damages, arising out of or in connection with Lessor's failure to perform its
obligations hereunder. Lessor warrants that, as of the Installation Date, the
Equipment is eligible for a manufacturer's maintenance contract. In the event
this warranty is untrue, Lessor shall make and render the Equipment, and each of
them, eligible for a manufacturer's maintenance contract, within 30 days of
written notice from Lessee of their ineligibility, and should Lessor fail to
make the Equipment eligible within said period, Lessor shall be liable to remove
any such Equipment that is not made eligible within said 30-day period,
-2-
at its own expense, and shall be liable for Lessee's out-of-pocket expenses
incurred with installation of the Equipment, but for no other expense or
damages. Upon written request from the Lessee, Lessor shall take all
reasonable action requested by Lessee to enforce any manufacturer's warranty
express or implied, relating to the condition or performance of the Equipment
which is enforceable by Lessor in its own name, provided, however, that
Lessor shall not be obligated to resort to litigation to enforce any such
warranty unless Lessee shall pay all expenses incurred in connection
therewith. Similarly, if any such warranty shall be enforceable by Lessee in
its own name, Lessee shall take reasonable action requested by Lessor to
enforce any such warranty. Lessee shall indemnify and hold Lessor and its
assigns harmless from any liability, claim, loss, damage or expense
(including reasonable attorneys' fees) of any kind or nature caused, directly
or indirectly by (1) inadequacy of any Equipment for any purpose, (2) any
deficiency or defect in any Equipment, (3) the use or performance of any
Equipment, (4) any interruption or loss of service, use or performance of any
Equipment, (5) any patent, copyright, or other infringement, or (6) any loss
of business or other consequential damage whether or not resulting directly
from any or all of the above. Lessee acknowledges that it has made the
selection of the Equipment based on its own judgment, and expressly disclaims
any reliance upon statements made by Lessor. Lessee acknowledges that Lessor
has made no statements or representations upon which it is relying in
purchasing the Equipment, and that this Agreement contains all agreements and
understandings between the parties.
7. RISK OF LOSS:
A. Lessor shall not be responsible for, nor shall the monthly rental or
other sums due hereunder xxxxx for any reason, including, but not limited to,
any interruption in or loss of the service or use of the Equipment or any
part thereof, or any loss or damage caused thereby, or by error in
programming or instruction to the Equipment, latent defect, wear and tear, or
gradual deterioration of the Equipment or any part thereof.
B. Lessee shall be liable for any and all loss or damage to the
Equipment during the period that the Equipment is installed on Lessee's
premises, including, but not limited to, loss or damage caused by fire,
lightning, sprinkler leakage, tornado and windstorms, water damage,
earthquake, collapse of building or structures, strikes, riots and civil
commotion, vandalism and malicious mischief, burglary, theft, hostile or
warlike actions in time of peace or war, insurrections, revolutions, civil
war or usurped power, or nuclear reaction, nuclear radiation, or radioactive
contamination.
During the term of the Lease, and until the Equipment is redelivered to Lessor,
Lessee shall be liable for the prompt repair of the Equipment at its sole cost
and expense. If the Equipment or any portion thereof is lost, stolen, destroyed
or damaged beyond repair, Lessee, at it's option, may (i) continue to make the
Monthly Rental Payments and will replace the Equipment with equipment of
identical manufacture and equal or greater capacity, utility and residual value
to that of the Equipment replaced (in which case Lessee will transfer title of
the replacement Equipment to the Lessor), or (ii) pay Lessor on the next Monthly
Rental Payment date following
-3-
the loss, theft, damage or destruction of the Equipment an amount equal to
the replacement value or the minimum casualty value, whichever is greater,
attached to the applicable Equipment Schedule for such Equipment in effect on
the date of the loss, theft, damage or destruction thereof and all rent
accrued on such Equipment up to the date of payment and all other amounts
then due in connection with such Equipment. Upon such payment, the lease
schedule, or portion thereof, will terminate with respect to the Equipment so
paid for, and Lessor will transfer full unencumbered ownership and title to
such Equipment to Lessee.
During the term of this Lease as to any Equipment Schedule, Lessee shall, at
its expense, secure and maintain in effect, with insurers of recognized
responsibility, All Risk insurance policies covering the Equipment designated
in each Equipment Schedule, for amounts not less than the minimum casualty
value of such Equipment. All such policies shall name Lessor as an additional
insured and loss payee, Lessee and Lessor's assignees as their interests may
appear, and shall provide that the policies cannot be canceled or modified
except on at least ten (10) days prior written notice to Lessor. Copies of
such insurance policies shall be delivered to Lessor on or before the
Installation Date.
8. LIABILITY INSURANCE AND INDEMNITY:
Lessee assumes all risk and liabilities, whether or not covered by insurance,
and shall indemnify and hold Lessor and its assigns harmless for any liability,
claim, loss, damage or expense (including reasonable attorneys' fees) for
injuries or deaths of persons and for damage to property, howsoever arising from
or incident to the use, operation or storage of the Equipment, whether such
injury or death to person be of agents or employees of Lessee or be of third
persons and whether such damage to property be of Lessee, or to property of
others. Lessee shall, at its own expense, carry bodily injury and property
damage liability insurance covering said risks and liability, and Lessor and its
assigns shall be named as an insured under said policies, and Lessee shall
furnish a copy of said policies to Lessor.
9. MAINTENANCE, REPAIRS AND INSTALLATION:
Unless otherwise agreed upon in writing, Lessee shall, at its expense, obtain
and keep in full effect, throughout the term of this Lease, a contract from the
manufacturer of the Equipment providing for prime shift maintenance service (as
that term is defined by the manufacturer) and will otherwise maintain the
Equipment in good working order and appearance and make all necessary
adjustments and repairs thereto. Lessee will at all times cooperate with Lessor
in allowing the manufacturer or Lessor to control and install all engineering
changes on the Equipment as when determined necessary or desirable by the
manufacturer or Lessor. Upon termination of the Lease, Lessee shall return the
Equipment to Lessor in good condition and repair excepting only reasonable wear
and tear. Lessee will provide the required suitable electric current to operate
the Equipment, with all appropriate facilities as specified by the manufacturer,
and meeting the minimum standard of the National Board of Fire Underwriters for
the protection of Electronic Computer Systems, as recommended by the National
Fire Protection Association.
-4-
Lessee will grant access to the Equipment to Lessor, its designee, or the
manufacturer, during normal working hours for inspection, repair,
maintenance, installation or engineering changes, and for any other
reasonable purpose. Lessee shall immediately notify Lessor of all details
concerning any accident arising out of the alleged or apparent improper
manufacture, functioning or operation of the Equipment. Exclusions: If the
Lessor assumes, in writing, the obligation to maintain the Equipment in good
working order, it is understood and agreed that the Lessor's obligation shall
not include: (a) Electrical work external to the Equipment or maintenance of
accessories, attachments, or other devices not furnished by Lessor; (b)
Furnishing of supplies or accessories; painting or refinishing the Equipment
or furnishing material therefor; making specification changes or performing
services connected with the relocation of the Equipment: or adding, removing,
or servicing accessories, attachments, or other devices not a part of the
Equipment; (c) Repair of damage, or furnishing parts required, due to causes
other than ordinary wear and tear to the Equipment, including, without
limitation, neglect, misuse (including faulty repair or maintenance by
non-authorized parties), accidents, failure of electrical power,
air-conditioning, humidity control, or acts of God.
10. ALTERATION AND ATTACHMENTS:
NO ALTERATIONS OF ATTACHMENTS TO THE EQUIPMENT SHALL BE MADE WITHOUT FIRST
OBTAINING IN EACH INSTANCE THE PRIOR WRITTEN APPROVAL OF LESSOR, which approval
shall not unreasonably be withheld. If, after such written approval has been
obtained, the alterations or attachments interfere with the normal or
satisfactory maintenance, operation or insurability of the Equipment, or any
part thereof, in such manner as to increase the cost of maintenance or insurance
thereof, or create a safety hazard, Lessee will, upon notice from Lessor to that
effect, promptly remove the alterations or attachments and restore the Equipment
to its normal condition. In the case of increased cost of maintenance and
insurance, or either, Lessee shall pay such increase.
11. ASSIGNMENTS AND SECURITY INTERESTS:
Lessee consents to assignments of this Lease by Lessor. Further, Lessee agrees
to pay all amounts due under this Lease, unconditionally, without offset,
notwithstanding any defense or counterclaim which Lessee may have against
Lessor, which claims mist be brought directly against Lessor while the Lease is
not in default. In the event that Lessor transfers or assigns its interest
hereunder, or grants a security interest in all or part of this Lease, the core
Equipment and/or sums payable hereunder as collateral security for any loans or
advances made or to be made to Lessor by a financing institution ("Secured
Party"), Lessee, upon receipt of notice of any such transfer, assignment, or
grant and instructions from Lessor, shall pay its obligations hereunder, or
amounts equal thereto, to such assignee or the Secured Party in the manner
specified in said instructions; notwithstanding any assignment, transfer or
grant by Lessor, and so long as the Lessee shall not be in default hereunder,
neither Lessor, nor any assignee, nor any Secured Party, shall interfere with
Lessee's right of quiet enjoyment and use of the Equipment. In the event that
Lessor notifies Lessee of its intention to transfer, assign, or grant a security
interest in all or any part of this Lease, the Equipment and/or sums payable
hereunder, Lessee
-5-
agrees to execute such documents as may be reasonably necessary to secure
and/or complete such transfer, assignment or grant.
12. USE OF EQUIPMENT:
The Equipment will be kept by Lessee in its sole possession and control, will at
all times be located at the location stated in the Equipment Schedule, and will
not be removed therefrom, without prior written consent of Lessor, which shall
not be unreasonably withheld. Lessee will keep and maintain the Equipment free
and clear of all liens, charges and encumbrances (except any placed thereon by
Lessor). This Lease shall be binding upon, and shall inure to, the benefit of
the parties hereto and their respective successors and assigns. LESSEE MAY NOT
ASSIGN THE LEASE OR ANY OF LESSEE'S RIGHTS HEREUNDER OR SUBLEASE ANY EQUIPMENT
OR ITS USE WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR OR ANY SUCH ASSIGNMENT OR
SUBLEASE SHALL BE VOID. Any permitted sublessee or assignee of Lessee must
execute an assumption of this Lease in form and substance acceptable to Lessor,
but no sublease or assignment shall relieve Lessee of any of its obligations or
liabilities under this Lease. Nothing contained herein shall limit the Lessee's
right to sell time on the Equipment to third parties while the Equipment is
located at the location set forth in the Equipment Schedule or at such other
location approved by Lessor.
Lessee agrees that all cards, tapes, disks, diskettes, supplies, and/or other
input/output and storage media used to operate the Equipment are to meet the
specifications of the manufacturer of the Equipment.
13. TRANSPORTATION AND INSTALLATION:
The Equipment is to be installed at the location indicated on the Equipment
Schedule.
All transportation, rigging, drayage, and any other charges for the delivery of
the Equipment to Lessee's premises shall be paid by the Lessee, unless indicated
otherwise on the Equipment Schedule. All installation charges shall be paid by
Lessee unless indicated otherwise on the Equipment Schedule. All charges for the
deinstallation shall be paid by Lessee. Transportation, rigging, and drayage
from Lessee's premises at the termination of the Agreement shall be arranged for
by Lessor and paid by Lessee.
14. LESSOR'S REMEDIES IN THE EVENT OF DEFAULT:
In the event (a) Lessee defaults in the payment of any monies due to Lessor
hereunder beyond the 10th day after the same is due, or (b) Lessee defaults in
the performance of any other of its obligations under this Lease for a period of
ten (10) days after receipt by Lessee of notice thereof from Lessor, or (c)
Lessee files a petition in bankruptcy or insolvency or for reorganization or for
the appointment of a receiver or trustee for any or all of its property or makes
an assignment for the benefit of creditors or enters into an arrangement with
creditors, or (d) a petition in bankruptcy or insolvency or for reorganization
or for the appointment of a receiver or trustee of
-6-
any or all of the Lessee's property if filed against it, and Lessee fails to
secure a discharge thereof within (30) days, then, in any such event, Lessor
may, at its option, do any or all of the following:
(1) In the case where such event occurs during the Initial Term of the
Lease: (i) terminate Lessee's right to possession and retake possession of
the Equipment and for this purpose Lessor may enter upon Lessee's premises,
or such other premises where the Equipment may be kept at any time, without
or without notice; (ii) sell, dispose of, hold, use or lease all or any of
the Equipment as Lessor, in its sole discretion, may decide (but in no event
shall Lessor be obligated so to do).
Lessee shall continue to be responsible for the monthly rental charge for all
Equipment for the balance of the Initial Term, and Lessor may, at its option,
elect to accelerate said charges such that all of the same shall be due upon
such election; provided, however, that, in the event that Lessor sells or
re-leases the Equipment, Lessee's liability shall be limited as follows: (a) IF
THE EQUIPMENT IS SOLD: Lessee shall be responsible for the actual value to
Lessor of the Lease of that Equipment, computed as of the date of sale according
to the sum of lease payments past due, plus the present value of future lease
payments (associated with the sold Equipment) to become due, discounted at the
rate of 5% per annum, LESS the net sale price of the Equipment, and "net sale
price" shall mean the gross sales price less any anticipated residual value of
the Equipment and all expenses of sale, including attorneys' fees incurred in
connection with the disposition, advertising costs, commissions, transportation
charges, installation costs and other like expenses. Any excess of the net sale
price shall be retained by Lessor; and (b) IF THE EQUIPMENT IS RE-LEASED: Lessee
shall be responsible for the actual value to Lessor of the Lease to Lessee of
the Equipment that is re-leased, computed as of the date of re-lease according
to the sum of lease payments past due, plus the present value of future lease
payments (associated with the re-leased Equipment) to become due under this
Lease, discounted at the rate of 5% per annum, LESS an amount equal to the
present value of all lease payments to become due under the re-lease up to the
date that the Lease to Lessee would have terminated, discounted at the rate of
5% per annum, minus all costs incurred by Lessor in re-leasing, including legal
fees incurred in connection with disposition, advertising costs, commissions,
transportation costs, removal and installation costs and like charges.
Lessee shall further be responsible for a service charge on all monies due but
unpaid for more than ten (10) days (including the balance of the rentals for the
Initial Term), equal to one and one-half percent (1-1/2%), or the highest rate
permissible by law, whichever is less, on the amount thereof (exclusive of
accumulated service charges), for each month or fraction thereof that said
monies are past due, in addition to the amounts due and unpaid.
(2) In the case where such event occurs after the Initial Term of the
Lease: (i) terminate Lessee's right to possession and retake possession of
the Equipment and, for this purpose, Lessor may enter upon Lessee's premises
or such other premises where the Equipment may be kept, at any time, with or
without notice, (ii) sell, dispose of, hold, use or lease all or any of the
-7-
Equipment as Lessor in its sole discretion may decide, (but in no event shall
Lessor be obligated so to do, nor shall Lessee be entitled to an accounting
or any credit for the same), and (iii) Lessee shall have no further right to
possession or any interest in the Equipment, the same reverting entirely to
the Lessor.
Lessee shall be responsible for the monthly rental charge for all Equipment for
the two-month notice period as described in Section 3 hereof.
Lessee shall further be responsible for a service charge on all monies due but
unpaid for more than ten (10) days (including the balance of the rentals for the
Initial Term), of one and one-half percent (1-1/2%), or the highest rate
permissible by law, whichever is less, on the amount thereof (exclusive of
accumulated service charges), for each month or fraction thereof that said
monies are past due.
In addition to the remedies provided in cases 1 and 2 in this paragraph 14,
Lessee shall in any event remain fully liable for damages as provided by law
(including liability for damages to the Equipment) and for all costs and
expenses incurred by Lessor on account of such default, including all court
costs and reasonable attorneys' fees. The rights afforded Lessor under this
paragraph shall not be deemed to be exclusive but shall be in addition to any
rights or remedies provided by law.
15. GENERAL:
A. The Equipment remains the personal property of Lessor and may be
removed at any time, without notice, after termination of this Lease.
B. Lessee shall permit Lessor to affix to the Equipment and each unit
or element thereof, appropriate tags, decals, or plates indicating the
ownership of such Equipment by Lessor, and Lessee shall not cause or permit
any such tags, decals, or plates to be removed, defaced or covered in any way.
C. It is agreed that Lessee may, with Lessor's prior written consent,
which shall not be unreasonably withheld, install and operate the Equipment
at other locations or sublease any or all of such Equipment to locations
within the continental United States. It is understood and agreed, however,
that any such action by Lessee shall be at its sole cost and expense and
shall not relieve Lessee from any of its obligations under this Lease. In
addition, if such relocation results in any increased costs to Lessor, of any
nature whatsoever, such increased costs shall be promptly paid by Lessee to
Lessor upon presentation to Lessee of evidence supporting such cost. Lessee
agrees to execute any documents necessary to protect Lessor's interest in
said Equipment.
D. The Lease, and each Equipment Schedule, constitute the entire
Agreement between Lessor and Lessee with respect to the lease of the
Equipment. No waiver, consent, modification or change of terms of this Lease
shall bind either party, including Lessor's Secured Party, unless
-8-
in writing and signed by an officer of the waiving party, and then such
waiver, consent, modification or change shall be effective only in the
specific instance and for the specific purpose given.
E. Only that counterpart marked "Secured Party's Original" shall be
effective to transfer Lessor's rights herein and all other counterparts have
been marked to indicate that they are not the "Secured Party's Original."
F. The parties hereto agree that, where notice is required hereunder,
it shall be deemed received the third day after mailing, if mailed postage
prepaid, return receipt requested, by regular or airmail to Lessor or Lessee,
as the case may be, at the respective address given above. Either party may
change such address for notice by sending to the other party written notice
thereof.
G. Any provision hereof prohibited by, or unlawful or unenforceable
under, any applicable law of any jurisdiction shall, at the sole option of
the Lessor, be ineffective as to such jurisdiction without invalidating the
remaining provisions of this Agreement; provided, however, that where the
provisions of any such applicable law may be waived, they are hereby waived
by Lessee to the full extent permitted by law, and this shall be deemed to be
a valid and binding Lease enforceable in accordance with its terms.
H. This Lease, and any other instrument, executed in connection
herewith, shall be a contract under, and governed by, the laws of the State
of Minnesota (exclusive of principles of conflict of laws), Lessee hereby
consents to the jurisdiction of the state and federal courts of Minnesota,
and agrees that any disputes arising in connection with this Lease shall be
resolved exclusively in the County of Dakota, State of Minnesota.
I. Any Equipment Schedule, addenda or rider referred to in this Lease
are incorporated herein by reference. In the event of any conflict between
the terms and conditions of this Lease and conditions of any Equipment
Schedule or any amendment, addendum or rider thereto, the terms and
conditions of such Equipment Schedule, amendment, addendum or rider shall
prevail.
J. This Lease shall be binding upon and inure to the benefit of Lessor
and Lessee and their respective successors, assigns and permitted sublessees.
K. Lessee agrees to execute any and all UCC financing statements
required by Lessor for the purpose of showing Lessor's interest in the
Equipment and agrees that Lessor may file same and further agrees that Lessor
may execute any UCC financing statements for and on behalf of Lessee, and
Lessee irrevocably appoints Lessor as Lessee's attorney in fact to execute
any and all such financing statements as Lessor considers advisable.
L. Notwithstanding any other provisions of this Lease Agreement to the
contrary, Lessee agrees, following the execution of the Lease by Lessee, to
provide to Lessor at Lessor's demand,
-9-
from time to time, any and all information reasonably required to establish
Lessee's creditworthiness, including, but not limited to, financial
statements and profit and loss statements, for the current period and for the
proceeding three fiscal years. Lessor agrees that such information shall be
confidential.
During the term of the Lease, as an additional condition of Lessee's
performance, Lessee agrees to provide financial statements to Lessor within a
reasonable period following the end of Lessee's fiscal year.
Lessee and Lessor do each hereby warrant and represent that their respective
signatories whose signatures appear below have been and are on the date of this
Lease duly authorized by all necessary and appropriate action to execute this
lease
LESSEE: Adaytum Software Inc. ACCEPTED:
--------------------------
LESSOR: DATA SALES CO., INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxx Xxxxxxxx
------------------------------ -------------------------------
Title: Group Controller Title: VP
--------------------------- ----------------------------
-10-
