Exhibit 10.69
OPERATING AGREEMENT
This Operating Agreement is entered into this 9th day of June 12, 1997, between
Information Leasing Corporation, an Ohio Corporation, with its principal place
of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("ILC") and MTI
with its principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
WHEREAS, ILC and MTI have devoted substantial time, expertise and other
resources to the development of a Master Storage on Demand Agreement ("MSODA"),
affixed hereto and labeled Attachment "A" and other transaction structures to
enable MTI to provide equipment and services to its customers; and
WHEREAS, each of the parties hereto desires to agree to and protect its
proprietary interest in the resulting product; and
WHEREAS, each of the parties hereto desires to agree to a sharing
arrangement regarding certain remarketing and/or renewal rentals, fees and
other revenues arising from such business; and
WHEREAS, each of the parties hereto desires to perpetuate the business
relationship with each other under mutually agreeable terms and conditions;
NOW THEREFORE, in consideration of the mutual premises and covenants
stated herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Term
The term of this Agreement ("Term") shall be five years, which shall
automatically renew for consecutive terms of one (1) year unless and until
written notice of termination is delivered by either party to the other not less
than ninety (90) days prior to the expiration of any such term. The word "Term"
shall include all such renewal periods.
2. Transaction Structure
ILC and MTI agree that the structure of transactions (the "Transaction
Structure") by which MTI provides equipment and services to its customer
("Customer") is as follows:
MTI enters into an MSODA with its Customer pursuant to which MTI provides
equipment, use of certain software, support, property tax payment, maintenance,
▇▇.▇▇.. MTI may also enter into or request that ILC enter into an Agreement with
an MTI customer which is not substantially identical to the MSODA (Attachment
"A"). Such Agreements may include but not be limited to standard ILC leases,
customer-provided leases, etc. These Agreements collectively shall be designated
as non-MSODA. Upon receipt by ILC of all required MSODA (or non-MSODA)
documentation and assignment of same by MTI to ILC or its assignee, ILC shall
pay MTI hardware, software and maintenance costs as negotiated.
MTI shall be responsible for providing to ILC properly executed Customer
documentation and other relevant documentation as follows for both MSODA and
non-MSODA transactions:
(a) ILC shall have given to MTI its Credit Approval of the Lessee
as evidenced by either a written Notice of Approval, written
purchase order, or valid ILC purchase order number,
(b) Properly executed MSODA and any additional requested
information or documentation,
(c) Originals of Delivery and Installation Certificate,
(d) Originals of UCC financing statements(s),
(e) Originals of MTI's invoice to ILC complete with all serial
numbers,
(f) Evidence that the equipment has been properly installed
according to industry standards prior to execution of the
Certificate of Acceptance,
(g) Such additional support documents (i.e., Corporate Guarantee,
Personal Guarantee, Subordination Agreement, Consent and
Waiver by owner for real estate, etc.) as Lease documents from
Lessee as ILC may reasonably require, and
(h) Lessee's payment check for any advance rental payment(s) which
may be required by ILC.
(I) Assignment of Agreements from MTI to ILC. The Assignment is
affixed hereto and labeled Attachment "B".
ILC shall be responsible for billing and collection of amounts due under the
MSODA; however, if MTI chooses, MTI may designate ILC as its paying agent with
appropriate authority to collect and enforce the terms and conditions of the
MSODA. Further, MTI shall provide ILC with all necessary invoices, letterhead,
and stationery in order to generate proper invoicing and collection.
3. Exclusivity
A. MTI agrees that ILC's MSODA and any and all other documentation which
has been provided by ILC or which ILC has helped to develop and incorporated
herein by reference, will be treated confidentially and will not be shared with
or divulged to any other party not previously in possession of the same for the
term hereof. MTI acknowledges that certain of these documents are or may be
copyrighted by ILC.
B. ILC hereby agrees that it will not enter into any transaction with the
same or substantially similar Transaction Structure as that outlined herein with
any other provider of similar services for the Term.
C. Any proposed MSODA (or non-MSODA) based on the transaction structure
("Proposed Transaction") shall be first offered to ILC, which shall have the
right to accept or reject the same as follows: MTI shall deliver to ILC current
financial data and credit information of the Customer for the prior two years,
the commencement date of the lease, an estimate of equipment cost, software
costs, and maintenance costs, et. al. and the location of equipment sites (the
"Required Information"). ILC shall have three (3) business days after receipt of
the Required Information to advise MTI of its intention to accept such Proposed
Transaction, ILC shall have ten days after receipt by ILC of all documentation
required by ILC from the customer or MTI to close and fund the Proposed
Transaction. Any "economic changes" to the Proposed Transaction, meaning a
degradation of the Customer's credit, or a change in pricing, either
voluntarily, by MTI, or as a result of competitive pricing pressures, may add
three business days to the applicable deadline(s) under this subsection. Any
failure to respond by ILC within the times specified above shall be deemed a
rejection by ILC of the Proposed Transaction. IN the event ILC declines any
transaction for any reason, MTI shall have the right to seek alternative
financing arrangements without causing default or breach hereunder.
If either MTI or MTI's customer declines the ILC proposal for any reason
whatsoever, then either MTI or it's customer shall be entitled to arrange
financing with any other sources. MTI shall have no obligation to present
transactions to ILC wherein the MTI customer has specified that it does not wish
to entertain lease financing bids as a part of the MTI proposal or for any other
reason whatsoever.
D. The parties agree that the Transaction Structures and the Documents are
unique assets and essential to the business efforts of both parties. The parties
agree that irreparable injury will inevitably occur to the non-breaching party
in the event of any breach of the terms of this Agreement, and that the
non-breaching party shall be entitled, in addition to any other remedies
available to it, with or without proof of monetary or immediate damage, to
maintain an action for an injunction to restrain any violation hereof.
4. Representations and Warranties; With respect to equipment and services
hereunder, MTI warrants that:
(a) All Lessees shall be leasing solely for commercial or business
purposes and no Lease shall be deemed to be a "consumer lease"
for purposes of state or federal law,
(b) Title to any equipment purchased under this Agreement shall be
free and clear of all liens and other encumbrances,
(c) All signatures, names, addresses, amounts and descriptions of
equipment or services submitted to ILC by MTI are true and
correct,
(d) All equipment for which MTI shall have delivered to ILC a
Certificate of Acceptance shall have been properly installed
and accepted by Lessee,
(e) MTI has and will continue to perform all of its obligations
under the warranties given by MTI to the Lessee,
(f) MTI will make available A complete maintenance and service
operation for the equipment, supplies, and/or data for which
ILC is collecting payments from Lessees.
5. Sharing of Proceeds
MTI and ILC agree to use their best efforts in order to renew or sell in place
or to re-lease or sell to a new Lessee or customer any and all equipment
included under an original MSODA (or non-MSODA) which has reached or shall reach
termination.
In consideration for the sharing of such proceeds (5A, B and C), MTI agrees to:
(a) Receive and inventory off-lease equipment,
(b) Provide ILC with written notice within 10 business days of
receipt of off-lease equipment of any irregularities in the
equipment (malfunctions, needed repairs, etc.) and a cost
estimate to fix such irregularities,
(c) MTI shall notify ILC once each calendar month as to the
results of MTI's re-marketing efforts for off-lease equipment,
(d) MTI agrees that ILC, notwithstanding any provision herein
regarding sharing of proceeds, shall be entitled to retain as
its own, all discounting proceeds and Interim Availability
Rental paid by MTI Lessees, and
(e) MTI and ILC agree to bear all out-of-pocket expenses incurred
in connection with their respective re-marketing services and
such expenses will not be deducted from rent or sale proceeds.
A. Renewals. In the event that the customer renews the MSODA (or
non-MSODA), or otherwise extends any portion of such Agreements in a way which
requires extended use and refinancing of the Equipment beyond its original term
(regardless of whether such refinancing includes a portion of the original term
or not), ILC and MTI hereby agree to share the proceeds of such refinancing in
excess of the amount required to pay off the original debt, as follows:
MSODA non-MSODA
----- ---------
ILC 50% 90%
MTI 50% 10%
B. Exercise of Purchase Option. Provided that (i) all of the original
non-recourse debt required to be paid during the original term of the MSODA (or
non-MSODA) has been satisfied and all other amounts due under the MSODA (or
non-MSODA) for the original term have been paid; (ii) the Customer is not in
default under its MSODA (non-MSODA), the Customer shall be permitted to purchase
Equipment in place, in which event, MTI and ILC agree to share gross proceeds as
follows:
MSODA non-MSODA
----- ---------
ILC 50% 90%
MTI 50% 10%
C. Remarketing. In the event that the Customer neither renews or exercises
its purchase option at the termination of the MSODA (or non-MSODA), ILC and MTI
each agree to apply their best efforts and participate as much as possible to
remove and remarket the Equipment, as a sale or a lease, to another customer.
The net proceeds of any such remarketing, after reimbursement for documented and
reasonable expenses associated with the removal, refurbishing or marketing of
the Equipment, shall be shared as follows:
MSODA non-MSODA
----- ---------
ILC 50% 50%
MTI 50% 50%
In the event that such remarketing effort results in a re-lease, sharing
proceeds shall be distributed of time, if and as received from the new customer.
6. Non-Standard Agreements
From time to time, ILC and MTI may agree that a specific transaction with an MTI
customer requires special consideration and, as such, will be designated a
Non-Standard Agreement. These Agreements may require unusual discount levels,
more favorable payment terms, or any one of a number of other unique features in
order to meet the MTI customer's particular accounting, budget, competitive or
other criteria. MTI and ILC shall jointly consider these special transactions
and mutually determine what each party shall be willing to contribute in order
to secure that transaction. At the conclusion of such discussion and, if
applicable, MTI and ILC will also agree to a sharing of end-of-term proceeds.
7. Default
Failure to perform any obligations under this Agreement by either party shall
constitute default.
8. Further Assurances
ILC and MTI hereby agree to execute all such further documents or instruments
and to take such further action as may be necessary or appropriate to effect the
transactions contemplated by this Agreement.
9. Binding effect
This Agreement shall be binding upon and shall inure to the benefit of the
successors and assigns of each party. Specifically, in the event that either
party shall merge, consolidate, or effect any other corporate restructuring,
including the sale of 40% or more of its stock or assets, each party hereby
agrees to cause any such successor, purchaser. surviving corporation, assignee
or transferee, to execute an acknowledgment OF the binding effect or this
Agreement thereupon.
10. Enforcement
In any action taken to enforce any provision of this Agreement, either
administrative or judicial, the prevailing party shall be entitled to payment of
all expenses, including attorney's fees, from the other party.
11. This Agreement shall not be amended, changed or modified except by and
agreement in writing between MTI and ILC.
12. LAW; Term
This Agreement shall be deemed to have been made in and shall be construed and
governed in accordance with the laws of the State of Ohio. The parties hereto
(i) designate the United Stated District Court for the Southern District of
Ohio, Western Division and ▇▇▇▇▇▇▇▇ County, Ohio Court of Common Pleas as forums
where all matters pertaining to this Agreement my be adjudicated, and (ii) by
the foregoing designation, consent to the jurisdiction and venue of such courts
for the purpose of adjudicating all matters pertaining to this Agreement. Seller
waives personal service of all process upon it and consents that service of
process may be made by mail or messenger directed to it at its address set forth
above and that service so made shall be deemed to be completed upon the earlier
of actual receipt or three (3) days after the same shall have been posted to
MTI's said address.
This Agreement shall remain in effect from the date above until terminated
either by written agreement or after 30 days from written notice by either party
to the other. Notwithstanding such termination, the provisions hereof shall
continue in force as to all Leases purchased by ILC before termination.
Information Leasing Corporation MTI
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
Its: President Its: Treasurer
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OPERATING AGREEMENT
CERTIFICATE OF INCUMBENCY
The undersigned being duly elected and acting as Secretary of MTI ("Guarantor")
does hereby certify that the person or persons listed below are authorized to
enter into the guarantees of the Operating Agreement with Information Leasing
Corporation and the persons listed below are duly authorized representatives of
the Guarantor in the capacity set forth opposite their names and that their
signatures are true and correct and, as of the date hereof, have proper
corporate power and authority to execute and deliver the guarantee of the
Operating Agreement between MTI and Information Leasing Corporation, and any
document required thereunder.
(a) MTI is a corporation duly organized, validly existing and in good standing
under the laws of the state of Delaware and has the corporate power to
execute, deliver, and perform its obligations under this Agreement;
(b) MTI is duly qualified to do business in such states in the United States
where qualification is reasonably believed to be necessary for its
business operations;
(c) The execution, delivery and performance by MTI of this Agreement does not
violate any provision of the articles of incorporation or bylaws of MTI or
result in a material breach of or constitute a material default under any
indenture or loan agreement or any other agreement, lease or instrument to
which MTI is a party or by which it or its properties may be bound or
affected; and
(d) Each year within 120 days of MTI's fiscal year end, MTI will provide ILC
with a statement of financial condition as of the end of such fiscal year
and a statement of earnings and retained earnings for such fiscal year,
prepared by a certified public accountant or, at ILC's option, copies of
MTI's signed income tax returns for the same period.
NAME (PRINT) TITLE SAMPLE SIGNATURE
▇▇▇▇▇ ▇▇▇▇▇▇▇ Treasurer /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇ CFO/Secretary /s/ ▇▇▇▇ ▇. ▇▇▇▇
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I hereby attest that this information is true and correct as of this 27 day of
May, 1997.
MTI
/s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Signature
Secretary
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Title:
ATTACHMENT A
MTI
MASTER STORAGE ON DEMAND AGREEMENT
TERMS AND CONDITIONS
MTI agrees to supply and rent to customer, and Customer agrees to pay rental
for the personal property including intangibles (the "Equipment") described in
one or more Equipment Schedules ("Schedules") hereto annexed and made a part
hereof, together with all replacement parts, repairs, additions, accessories,
and systems incorporated therein and/or affixed, integrated into and pertaining
thereto pursuant to the following term and conditions:
1. MASTER STORAGE ON DEMAND AGREEMENT
The MTI Master Storage on Demand Agreement ("MSODA") agreed to by and between
MTI and ("Customer") sets forth Schedules, each one or which
incorporates by this reference, the terms and conditions of this Master Storage
on Demand Agreement. The rental of Equipment under each Schedule shall be for
such term and such rent as may be agreed to by execution of the Schedule(s) and
each Schedule shall constitute a separate rental obligation to the customer.
The Master Storage on Demand Agreement shall control and be effective as to all
Schedules and shall be in force and effect as of the date that it is duly
executed by both Customer and MTI.
2. EQUIPMENT
The Equipment which is subject to this MSODA shall include electronic computer
equipment, operating software, maintenance, and any other item(s) each as
described in the Schedule(s).
3. DELIVERY AND INSTALLATION
3.1 Delivery. MTI shall deliver the Equipment to the locations specified
herein.
3.2 Installation. The terms for installation of the Equipment shall be as
follows:
Customer shall be responsible, at Customer's cost and expense, for the
preparation of the installation site in accordance with MTI's reasonable
installation requirements. MTI or its authorized representative shall install
and make the equipment operational.
4. ACCEPTANCE
Customer agrees to sign, date (the "Acceptance Date") and deliver to MTI or its
assignees (MTI or its assignees hereinafter being referred to as "MTI") a
Certificate of Acceptance in the form of Exhibit C, attached hereto and
incorporated herein by reference, within five (5) days of delivery of the
equipment to Customer. If Customer fails to deliver such Certificate to MTI and
does not provide a written objection to MTI within such five (5) day period,
the Certificate of Acceptance shall be deemed executed and delivered.
5. CUSTOMER REPRESENTATIONS AND COVENANTS
The Customer represents and warrants to MTI as follows: (i) that the person
signing this MSODA or any Attachments or Exhibits hereto on behalf of the
Customer is a duly authorized representative, partner, officer or proprietor of
the Customer and is authorized to execute this MSODA on the Customer's behalf;
(ii) the making of this MSODA and any Schedule, Addendum or Exhibit hereto
executed by Customer and any Schedule, Addendum or Exhibit hereto executed by
Customer are duly authorized on the part of Customer, and upon execution
thereof by Customer and MTI, they shall constitute valid obligation binding
upon and enforceable against Customer; (iii) neither the making of this MSODA
or such Schedule, Addendum, or Exhibit, nor the due performance thereof by
Customer, including the commitment and payment of amounts due hereunder, shall
result in any breach of, or constitute a default under, or violation of,
Customer's certificate of incorporation, by-laws, or any agreement to which
Customer is a party or by which Customer is bound; (iv) Customer is in good
standing in its state of incorporation and in any jurisdiction where the
Equipment is located, and is entitled to own properties and to carry on
business therein; and (v) no approval, consent or withholding of objection is
required from any consent or withholding of objection is required from any
governmental authority or entity with respect to the entering into, or
performance of this MSODA or such Schedule, Addendum, or Exhibit by Customer.
Customer will, upon request of MTI, execute and deliver such further documents
and assurances as MTI may request in order to carry out the intent and purpose
of the Agreement and to project or enable MTI to exercise the rights granted
MTI hereunder, including without limitation, the execution and filing of any
financing statements and the execution of any notices of assignment. Unless
such information is available from public sources, the Customer shall, upon
MTI's request, furnish a copy of the Customer's latest audited quarterly or
annual financial statements for the quarter or fiscal year ended not more than
60 or 120 days previously; if audited financials do not exist, Customer shall
prove unaudited financial statements. The Customer represents and warrants
that it has no contingent liabilities or litigation pending that is not listed
in its current financial statements. Customer agrees to provide to MTI the
foregoing public or private financial statements within five (5) days of
request.
6. TERM OBLIGATION
The Customer may terminate this Agreement before the end of its Term for a sum
equal to the present value of the remaining payments discounted at 225 basis
points below the T-bills of the like remaining term. Customer may cancel with
60 days written notification prior to expiration or 60 days written
notification for early termination. If Customer does not for any reason
provide MTI with written notification, Customer shall not be entitled to any
offset, abatement or reduction of payments due hereunder for any reason
whatsoever and its obligation to pay the same is absolute and unconditional
under any and all circumstances, including, without limitation, any theft or
destruction of, damage to, or loss arising from, the Equipment. Customer shall
not assign, transfer, pledge, hypothecate, or otherwise dispose of this MSODA.
7. COMMENCEMENT/ACCEPTANCE/INVOICING
During the term of this MSODA and its Schedule, the Customer shall pay as
minimum payments the number and amount of monthly installments shown in the
Schedule(s). The Payment Commencement Date of the Schedule shall be the first
day of the month following the Acceptance Date of the Equipment. Customer also
agrees to pay prorated payments from the Acceptance Date through Payment
Commencement Date. Payments shall be due, in advance, on the first day of each
month for the Term of the Schedule. MTI will send to the Customer monthly
payment reminders, but delay or failure to send such reminders shall not excuse
late payments. A service charge equal to the lesser of five percent (5%) of the
amount due or the highest amount permitted under applicable law shall be
assessed against all payments received by MTI after the fifth (5th) day of the
following month and shall be due and payable with the next monthly payment.
8. LIENS AND TAXES
Customer shall pay all taxes on the Equipment except personal property taxes
and shall keep Equipment free and clear of all levies, liens, and encumbrances.
Customer shall, in the manner directed by MTI (a) make and file all
declarations and returns in connection with all charges and taxes (local, state
and federal), which may now or hereafter be imposed upon or measured by the
ownership, leasing, rental, sale, purchase, possession, or use of Equipment,
excluding however, personal property taxes and all taxes on or measured by
MTI's net income and (b) pay all such charges and taxes. In the event that MTI
shall elect to make and file any or all declarations and returns in connection
with such charges and taxes to pay the same then the Customer shall reimburse
MTI, upon demand by MTI or its assignee(s), for any and all such charges and
taxes applicable to the equipment herein.
9. TITLE/RISK OF LOSS
A. The Equipment, or any identical replacement, if required, is and shall
remain the exclusive property of MTI.
B. The Customer may not sub-lease the equipment.
C. MTI may conspicuously ▇▇▇▇ the Equipment to show that it is the owner.
D. MTI shall have the right to enter upon the Customer's premises from time
to time, during normal business hours, with reasonable notice, for the purpose
of confirming the existence, condition, and proper maintenance of the Equipment.
E. From the date that the Equipment is delivered to Customer's address, the
Customer shall have all the risk of loss or damage to the Equipment arising
from any cause whatsoever. Customer shall keep the Equipment insured against
theft and all risks of loss or damage from every cause whatsoever for not less
than the replacement cost of the Equipment, shall carry public liability
insurance, both personal injury and property damage, covering the Equipment and
shall be liable for all deductible portions of all required insurance. All said
insurance shall be in form and amount and with companies satisfactory to MTI.
All insurance for theft, loss or damage shall provide that losses, if any,
shall be payable to MTI, and all such liability insurance shall name MTI (or
MTI's assignee as appropriate) as additional insured and shall be endorsed to
state that it shall be primary insurance as to MTI. Any other insurance obtained
by or available to MTI shall be secondary insurance. Customer shall pay the
premiums therefore and deliver to MTI a certificate of insurance consistent with
the foregoing.
F. Upon the occurrence of damage or destruction or loss of the Equipment, or
any part thereof, Customer shall be obligated to repair or replace the Equipment
so as to comply with the terms and provisions of this Agreement and in such
condition as required hereunder. Upon repair or replacement satisfactory to MTI,
MTI shall reimburse Customer for such repair or replacement up to the net
proceeds of insurance maintained by Customer paid to MTI.
10. EXPIRATION/RENEWAL
A. Upon expiration of a Schedule or Schedules, the Customer shall return to
MTI all Equipment and software in the same condition as when delivered to the
Customer (reasonable wear and tear expected). Customer shall promptly pay to
MTI removal and other charges associated with the return of the Equipment and
software to MTI.
B. Provided that all obligations set forth in the MSODA are then satisfied,
the Customer may renew a Schedule for an additional period of 3 months at the
original price or for 12 months at 65% of the original price and on the same
terms and conditions provided that the Customer has given MTI written notice of
renewal at least 60 days before expiration of the initial term of the Schedule.
11. EQUIPMENT ADD-ONS
By executing a Schedule Addendum, the Customer may add subsequent upgrades and
accessories. Any such add-ons, upgrade, or accessory shall be the property of
MTI, and Customer shall have no rights, title or interest therein after the
Term expires. The Customer shall not add-on, enhance, upgrade, accessorize,
replace or substitute the equipment or software in any way except with the
consent and services of MTI and as described herein.
12. WARRANTY; INDEMNIFICATION
A. MTI warrants the Equipment to be free from defects in materials and
workmanship for a period of twelve (12) months from date of installation. MTI
agrees to repair or replace defective components free of charge for a period of
one year after installation of the original system. If the systems ceases to
function as the result of a major component failure, MTI will ship an
"Advanced Replacement" to the site to restore service. MTI's limited warranty
covers those defects which arise as a result of normal use of the product, and
do not apply to: improper or inadequate maintenance, software or interfacing
not supplied by MTI, unauthorized modification or misuse, operation outside the
products specifications or damage from the result of vandalism, abuse, fire,
explosion, civil disturbance or acts of God.
B. Customer assumes liability for and shall indemnify, save, hold harmless
(and, if requested by MTI), defend MTI, its officers, directors, employees,
agents or assignees from and against any and all claims, actions, suits or
proceedings of any kind and nature whatsoever, including all damages,
liabilities, penalties, costs, asserted against MTI, and not against any
assignee thereof. Notwithstanding anything to the contrary hereunder including
without limitation the definition of "MTI" set forth in section 4, MTI shall
not delegate and any assignee of MTI shall not assume, any of MTI's obligations
under this Agreement.
Customer also agrees that this section shall apply to and control any other
warranty claim or other claim by customer or any other party in connection with
customer's acquisition, possession, use or inability to use the equipment, even
if MTI has been advised of the possibility of such damages.
13. ASSIGNMENT
MTI may assign this MSODA, Schedules, or the Equipment, in whole or in part
without notice to Customer, in which event MTI may require Customer to execute
a notice of Assignment.
14. DEFAULT/REPOSSESSION
If the customer does not make timely payment of amounts due under this MSODA or
Schedules or breaches any material term or condition thereof, and fails (i) to
make such payments or (ii) cure such breach within 10 days after written notice
from MTI thereof, or Customer becomes insolvent or makes a general assignment
for the benefit of creditors, suffers or permits the appointment of a receiver
for its business or assets, become subject to any proceedings under any
bankruptcy or insolvency law, whether domestic or foreign, or is wound up or
liquidated, voluntarily or involuntarily, MTI may declare immediately due and
payable the entire amount of unpaid minimum monthly payments, and all other
amounts due hereunder and, in addition, pursue any other remedies existing at
law or in equity. In addition to all other rights which MTI may have as a
secured party under law, Customer agrees that MTI shall have the right, if
Customer is in default on any of its obligations hereunder, to enter the
premises where the Equipment is located and peaceably retake possession of the
Equipment and software without being required to post security as a condition to
regaining possession thereof, and Customer hereby waives its right to assert
against MTI or its agents any claim based upon trespass or any similar cause of
action for entering upon any premises where the Equipment is located. All
remedies granted to MTI or Assignees by this MSODA or by law are cumulative, and
MTI's recourse to one remedy shall not preclude MTI's recourse to another.
15. MISCELLANEOUS
A. Entire Agreement. This MSODA, together with any Schedules, Exhibits and
Addenda attached hereto, constitute the entire agreement between the parties
with respect to the subject matter hereof and supersede all prior agreements
and understandings, oral and written, between the parties hereto with respect
to the subject matter hereof and thereof.
B. Notices. Any notices or other communications required or permitted to be
given or delivered under this MSODA shall be in writing and shall be
sufficiently given if delivered, personally or mailed by registered or certified
mail, postage pre-paid, return receipt requested, or by overnight delivery by a
nationally-recognized courier, or by facsimile and confirmed by registered or
certified mail, postage pre-paid, return receipt requested, to:
If to MTI: MTI
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice-President Administration
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
If to Customer: ________________________________________
________________________________________
________________________________________
Attention:______________________________
Fax:____________________________________
or to such other address or person as either party may from time to time
designate to the other in writing. Any such notice or other communication shall
be deemed to be given as of the date it is personally delivered or when placed
in the mails in the manner specified.
C. Force Majeure Event. MTI shall not be liable for any delay, loss or failure
to perform any of its obligations under this MSODA due to natural disaster,
governmental actions or decrees, outbreak of a state of emergency, acts of God,
war, riots, epidemics, fires, strikes, walk-outs, communication line failures or
other similar causes beyond its control.
D. No Waiver. A failure of either party to this MSODA to enforce at any time
any of the provisions of this MSODA, or to exercise any option which is herein
provided, or to require at any time performance of any of the provisions
hereof, shall in no way be construed to be a waiver of such provision of this
MSODA.
E. Governing Law. The validity of this MSODA, the construction and enforcement
of its terms and the interpretation of the rights and duties of the parties
shall be governed in all respects by the law of the State of Ohio, and Customer
hereby consents and submits to the exclusive jurisdiction of state or federal
courts located in the jurisdiction of ▇▇▇▇▇▇▇▇ County, Ohio, with respect to any
claims or disputes arising against or with MTI, and the nonexclusive
jurisdiction for all other claims or disputes, including successors and
assigns, and expressly waives any objections that they have as to venue in any
such courts and consents to service of process by first class U.S. mail.
F. Severability. In the event that any one or more provisions of this MSODA,
in whole or in part, shall for any reason be held to be invalid, illegal or
unenforceable, the remaining provisions of this MSODA shall be unimpaired, and
the invalid, illegal or unenforceable provision shall be replaced by a mutually
acceptable provision, which, being valid, legal and enforceable, comes closest
to the intention of the parties underlying the invalid, illegal or then
unenforceable provision.
G. Credit Approval. This MSODA is not binding on the parties hereto until
execution by MTI and approval of Customer's credit.
H. Customer promises to sign such documents and perform all acts necessary or
as required by MTI in order to consummate the intentions of this Master Storage
on Demand Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this MSODA to be executed as
of the date hereunder.
MTI
By: ____________________________
Title: _________________________
Date: __________________________
CUSTOMER:
By: ____________________________
Title: _________________________
Date: __________________________