EXHIBIT 10.14
IBM Credit Corporation ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TERM LEASE MASTER AGREEMENT
Name and Address of Lessee: Agreement No.: ND30923
Dataguard Recovery Services
10301 Linn Station Road IBM Branch Office No.: ND3
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IBM Customer No.: 2632835
IBM Branch Office Address: Entire and Future Enterprise
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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 any be terminated by either party upon one
month's written 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 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. Lessor 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 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 CANCELABLE; 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 quite 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 OR MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. AS TO LESSOR, LESSEE, LEASES THE
EQUIPMENT AND TAKES 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, 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 and Programming and for installation
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 5th
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 LPM Charges are subject to change in
accordance 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 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 sales 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 ▇▇▇▇ of sale, without recourse or warranty of any kind,
express or implied, all of Lessor's right, title and interest in
and to 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 upon
three months' prior written notice or six years after expiration of
the initial Term.
20. INSPECTION; MARKING; FINANCING STATEMENT. 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 installable 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 LPM 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 and 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 ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ 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 and 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 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
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 condition 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 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 the purposes of determining tax effects under Paragraph 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 Lessor 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 therein 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 Policyholders" rating of B+ or better. The policy shall name
Lessor as an additional insured as Lessor's interests may appear
and shall contain a clause requiring the insurer to give Lessor at
least one month's prior written notice of 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 ▇▇▇▇, ▇▇▇▇ 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 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 any other person. Lessor shall not be relieved of its
obligations hereunder as a result of any such assignment unless
Lessee expressly consents thereof.
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'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 canceled.
35. FINANCING PREPAYMENT (DOES NOT APPLY FOR ITEMS OF EQUIPMENT).
Lessee may terminate an item of Financing (but not an item of
Equipment) by preparing its remaining Rent. Lessee shall provide
Lessor with notice of the intended prepayment date which shall be
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 the Lessee from Lessor; (c) Lessee violates any of the
covenants or representations made by Lessee in any application for
credits 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 make an assignment for the benefit of
creditors, whether voluntary or involuntary, or consents to the
appointment of a trustee or receiver, of 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 or
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 right and interests in the Lease
and the Equipment.
40. OWNERSHIP; PERSONAL PROPERTY; LICENSED 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
reality. 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 Purchased Agreement. Lessee may
terminate the Lease for any 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.
THE ADDITIONAL TERMS AND CONDITIONS ON PAGES 2 THROUGH 4
[PARAGRAPHS 10 THROUGH 44 HEREIN] ARE PART OF THIS AGREEMENT.
LESSEE ACKNOWLEDGES THAT LESSEE HAS READ THIS AGREEMENT AND ITS
SUPPLEMENT, UNDERSTAND 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:
IBM Credit Corporation Dataguard Recovery Services
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Authorized Signature Authorized Signature
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇ 10/15/93
Name (Type or Print) Name (Type or Print) Date