1
EXHIBIT 10.18
[STAMP: COVIA'S COPY]
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
IBM CREDIT CORPORATION ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
203/352-5100
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ADDENDUM TO TERM LEASE MASTER AGREEMENT
[STAMP: COVIA CONTRACT 00823 2]
Term Lease Master Agreement No. 0070264
Document No. 00290488
IBM Credit Corporation and Covia Partnership (Lessee) agree that the Term Lease
Master Agreement between the parties is hereby modified as follows:
Paragraph 4 - Changes - in the third line after "notice" insert "only".
Paragraph 12 - Late Delivery - before "If" insert "Unless solely caused by
Lessor,".
Paragraph 17 - Renewal - in line three insert before "Lessor shall offer"
the following:
"Lessor will provide prior notification of Lease expiration and end of
Lease options including any extension, renewal or purchase option
available to Lessee."
Paragraph 24 - Leases for Modifications and Additions - in line six insert
before "These Modifications" the words "If Lessor arranges for leasing of
Modifications and Additions then".
Paragraph 25 - Return of Equipment - is changed as follows:
In the seventh line after "service," insert "Existence of a maintenance
agreement with IBM covering the Equipment at the date of de-installation
shall be sufficient to establish that the Equipment qualifies for IBM's
maintenance agreement service without further obligation of Lessee."
Add the following to the end of the Paragraph:
"Nevertheless, Lessor agrees to first charge its new lessee for any
transportation costs and, only to the extent the new lessee does not exist
or is not liable in the regular course of Lessor's business, to secondly
charge Lessee the cost of returning Equipment as above."
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NO CHANGES TO THIS ADDENDUM ARE AUTHORIZED
May 17 1988
1
2
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Paragraph 26 - Casualty Insurance; Loss or Damage - in line sixteen before
"Equipment" insert "item of".
Paragraph 30 - General Indemnity - in line five after "legal fees" insert
"and any additional tax liability".
Delete the fourth sentence beginning with "Any payment" found on lines
fourteen through eighteen.
Paragraph 31 - Liability Insurance - in line three replace "an insurer
having a 'Best Policyholders' rating of B+ or better" with "responsible
insurers".
In the fifth line replace "as Lessor's interests may appear" with "to the
extent of the liability assumed by lessee in Paragraph 30 herein."
In the seventh line after "any" insert "material".
Paragraph 38 - Remedies - is changed as follows:
At the end of the first paragraph, add "Nevertheless, the Lessor, in
implementation of this Paragraph 38 shall act in good faith and in a
commercially responsible manner."
In Paragraph 39 - Lessor's Expense - replace the entire Paragraph with the
following:
"Upon receipt of notice from Lessor, Lessee shall pay all costs and
expenses of Lessor, including legal and collection fees, due to Lessee's
acts or failures to act to protect Lessor's interests."
Accepted by:
IBM Credit Corporation Covia Partnership
by /s/ [Illegible] by /s/ [Illegible]
------------------------ -----------------------
Date 6/3/8 Date 5/20/88
IBM Credit Corporation reserves the right to decline acceptance if the
Addendum is not signed and submitted by Lessee on or before June 14, 1988.
C0290488/BP4
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NO CHANGES TO THIS ADDENDUM ARE AUTHORIZED
May 17 1988
2
3
[STAMP: COVIA'S COPY]
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
IBM CREDIT CORPORATION ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
203/352-5100
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[STAMP: COVIA CONTRACT 00823 1]
ADDENDUM TO TERM LEASE SUPPLEMENT
Term Lease Master Agreement No. 0070264
Supplement No. 0001
IBM Credit Corporation and Covia Partnership (Lessee) agree that for the
purposes of the referenced Supplement only, the Term Lease Master Agreement
between the parties is hereby modified as follows:
Paragraph 4 - Changes - in the third line after "notice" insert "only".
Paragraph 12 - Late Delivery - before "If" insert "Unless solely caused by
Lessor,".
Paragraph 17 - Renewal - in line three insert before "Lessor shall offer"
the following:
"Lessor will provide prior notification of Lease expiration and end of
Lease options including any extension, renewal or purchase option
available to Lessee."
Paragraph 24 - Leases for Modifications and Additions - in line six insert
before "These Modifications" the words "If Lessor arranges for leasing of
Modifications and Additions then".
Paragraph 25 - Return of Equipment - is changed as follows:
In the seventh line after "service." insert "Existence of a maintenance
agreement with IBM covering the Equipment at the date of de-installation
shall be sufficient to establish that the Equipment qualifies for IBM's
maintenance agreement service without further obligation of Lessee."
Add the following to the end of the Paragraph:
"Nevertheless, Lessor agrees to first charge its new lessee for any
transportation costs and, only to the extent the new lessee does not exist
or is not liable in the regular course of Lessor's business, to secondly
charge Lessee the cost of returning Equipment as above."
--------------------------------------------------------------------------------
NO CHANGES TO THIS ADDENDUM ARE AUTHORIZED
Apr 11 1988
1
4
--------------------------------------------------------------------------------
Paragraph 26 - Casualty Insurance; Loss or Damage - in line sixteen before
"Equipment" insert "item of".
Paragraph 30 - General Indemnity - in line five after "legal fees" insert
"and any additional tax liability".
Delete the fourth sentence beginning with "Any payment" found on lines
fourteen through eighteen.
Paragraph 31 - Liability Insurance - in line three replace "an insurer
having a 'Best Policyholders' rating of B+ or better" with "responsible
insurers".
In the fifth line replace "as Lessor's interests may appear" with "to the
extent of the liability assumed by Lessee in Paragraph 30 herein."
In the seventh line after "any" insert "material".
Paragraph 38 - Remedies - is changed as follows:
At the end of the first paragraph, add "Nevertheless, the Lessor, in
implementation of this Paragraph 38 shall act in good faith and in a
commercially responsible manner."
In Paragraph 39 - Lessor's Expense - replace the entire Paragraph with the
following:
"Upon receipt of notice from Lessor, Lessee shall pay all costs and
expenses of Lessor, including legal and collection fees, due to Lessee's
acts or failures to act to protect Lessor's interests."
Accepted by:
IBM Credit Corporation Covia Partnership
by /s/ [Illegible] by /s/ [Illegible]
----------------------- ----------------------
Date 5/28/8 Date 4/13/88
C0VPSA11/BP4
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NO CHANGES TO THIS ADDENDUM ARE AUTHORIZED
Apr 11 1988
2
5
[STAMP COVIA's COPY]
IBM Credit Corporation 00823
Term Lease Master Agreement
Name and Address of Lessee: Covia Partnership Agreement No. 0070264
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ IBM Branch Office No.: 007
IBM Branch Office Address: One IBM Plaza IBM Customer No.: 2237433
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 an option to purchase during the Lease. For Equipment
under Option B Prime (B'), Lessor assumes for tax purposes that Lessee is the
owner. For financing LPM Charges, Option S will apply.
2. CREDIT REVIEW. For each Lease, Lessee consents to any reasonable credit
investigation and review by Lessor.
3. AGREEMENT TERM. This Agreement shall be effective when signed by both
parties and may be terminated by either party upon one month's 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. Lessee hereby assigns, exclusively to Lessor,
Lessee's right to purchase the Equipment from IBM. This assignment is effective
when Lessor accepts the applicable Supplement and Lessor shall then be obligated
to purchase and pay for the Equipment. Other than the obligation to pay the
purchase price, all responsibilities and limitations applicable to Customer as
defined in the referenced IBM purchase agreement in effect at the time the Lease
is accepted by Lessor (Purchase Agreement) shall apply to Lessee.
If the Equipment is subject to a volume procurement amendment to the
Purchase Agreement or to another discount offering, (a) Lessor will pay the same
amount for the Equipment that would have been payable by Lessee, and (b) Lessee
will remain responsible to IBM for any late order change charges, settlement
charges, adjustment charges or any other charges incurred under the volume
procurement amendment or other discount offering.
8. LEASE NOT CANCELLABLE; LESSEE'S OBLIGATIONS ABSOLUTE. Lessee's
obligation to pay shall be absolute and unconditional and shall not be subject
to any delay, reduction, set-off, defense, counterclaim or recoupment for any
reason whatsoever, including any failure of the Equipment, Programming or
licensed program materials or any representations by IBM. If the Equipment,
Programming or licensed program materials are unsatisfactory for any reason,
Lessee shall make any claim solely against IBM and shall, nevertheless, pay
Lessor all amounts payable under the Lease.
9. WARRANTIES. Lessor grants to Lessee the benefit of any and all
warranties made available by IBM in the Purchase Agreement. Lessor warrants that
neither Lessor nor anyone acting or claiming through Lessor, by assignment or
otherwise, will interfere with Lessee's quiet enjoyment of the use of the
Equipment so long as no event of default shall have occurred and be continuing.
EXCEPT FOR LESSOR'S WARRANTY OF QUIET ENJOYMENT, LESSOR MAKES NO WARRANTY,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
AS TO LESSOR, LESSEE LEASES THE EQUIPMENT AND TAKES
THE ADDITIONAL TERMS AND CONDITIONS ON PAGES 2 THROUGH 4 ARE PART OF THIS
AGREEMENT.
LESSEE ACKNOWLEDGES THAT LESSEE HAS READ THIS AGREEMENT AND ITS SUPPLEMENT,
UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS. FURTHER,
LESSEE AGREES THAT THIS AGREEMENT AND ITS SUPPLEMENT ARE THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, SUPERSEDING ALL
PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS
BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
THIS AGREEMENT INCLUDES THE ADDENDUM ATTACHED HERETO AND
MADE A PART HEREOF.
Accepted by: Covia Partnership
IBM Credit Corporation ---------------------------------
Lessee
By /s/ R.E. Chuhta By /s/ ▇ ▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------- ---------------------------------
Authorized Signature Authorized Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
R.E. Chuhta 5/9/88 DIRECTOR PURCHASING
---------------------------------- ------------------------------------
Name (Type or Print) Date Name (Type or Print) Date
Page 1 of 4
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ANY PROGRAMMING "AS IS." IN NO EVENT SHALL LESSOR HAVE ANY LIABILITY FOR, NOR
SHALL LESSEE HAVE ANY REMEDY AGAINST LESSOR FOR, CONSEQUENTIAL DAMAGES, ANY LOSS
OF PROFITS OR SAVINGS, LOSS OF USE, OR ANY OTHER COMMERCIAL LOSS.
10. LESSEE AUTHORIZATION. So long as Lessee is not in default under the
Lease (a) Lessee is authorized to act on Lessor's behalf concerning delivery and
installation of the Equipment, any IBM warranty service for the Equipment, and
any programming services for the Programming, (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 15th day after the
Estimated Shipment Date, Lessor may, upon written notice to Lessee, increase the
Lease Rate. Lessee may terminate the Lease for the affected item by giving
Lessor written notice prior to delivery. Otherwise, the Rent shall be adjusted
to reflect such increase.
13. RENT COMMENCEMENT DATE. The Rent Commencement Date, unless otherwise
specified in the Supplement, shall be the date payment is due IBM under the
applicable referenced Agreement Lessee shall be notified on 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 with the referenced Agreements.
16. RENT. During the initial Term, Lessee shall pay Lessor, for each
Payment Period, Rent as determined in Paragraph 15. Lessee's obligation to pay
shall begin on the Rent Commencement Date. Rent will be invoiced in advance as
of the first day of each Payment Period and will be due on the day following the
last day of the Payment Period. When the Rent Commencement Date is not on the
first day of a calendar month and/or when the initial Term does not expire on
the last day of a calendar month, the applicable Rent will be prorated on the
basis of 30-day months. Advance Rent, if any, will be applied to the initial
invoice(s).
17. RENEWAL. If Lessee is not then in default under the Lease, Lessee may
renew the Lease one or more times but not beyond six years from the expiration
of the initial Term. Lessor shall offer renewal Terms of one year and may offer
longer Terms if then generally available. For a renewal Term, upon request by
Lessee, at least five months prior to Lease expiration, Lessor shall notify
Lessee, at least four months prior to expiration, of the Rent, any changes to
the Payment Period and due dates, and of any required Purchase Option or Renewal
Option Percents not specified in the Supplement. The Rent shall be objectively
determined by Lessor by using the projected fair market rental value of the
Equipment as of the commencement of such renewal Term. However, for Option B',
the Rent shall be as specified in the Supplement. Lessee may renew for any
renewal Term only by so notifying Lessor in writing at least three months before
expiration.
18. PURCHASE OF EQUIPMENT. Under Option A, if Lessee is not then in default
under the Lease, Lessee may purchase Equipment only upon expiration of the
Lease. 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
purchase price. 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 the total of (a) any recapture of investment tax credit
and (b) any tax due thereon. Lessee may purchase such Equipment by notifying
Lessor in writing at least three months before such expiration.
Under Option B or B', if Lessee is not then in default under the Lease,
Lessee may, upon notice to Lessor, purchase Equipment at any time on or after
the second anniversary of the Rent Commencement. Such notice shall be given not
later than three months prior to Lease expiration and shall specify the desired
date of purchase which shall be one month or more after the date of notice. If
the date of purchase is an anniversary of the Rent Commencement Date, the
purchase price shall be an amount determined by multiplying the Unit Purchase
Price by the Purchase Option Percent for such Equipment for such anniversary. If
the date of purchase is between two anniversaries, the purchase price shall be
the prorated price (in 12 monthly steps) between the purchase prices described
above for such anniversaries. If the date of purchase is the expiration of the
Lease, Lessor shall objectively determine the projected fair market sales value
and Lessee shall have the benefit of that value, if lower.
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.
Page 2 of 4
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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 the Equipment (but excluding
any Modifications not subject to a Lease and any non-IBM alterations) with a
$5,000 deductible per incident. If any item of Equipment shall be lost, stolen,
destroyed or irreparably damaged for any cause whatsoever (Casualty Loss) before
the Date of Installation as defined in the Purchase Agreement, the Lease for
that item shall terminate. If any item of Equipment suffers Casualty Loss, or
shall be otherwise damaged, on or after the Date of Installation, Lessee shall
promptly inform Lessor. If Lessor determines that the item can be economically
repaired, Lessee shall place the item in good condition and working order and
Lessor will reimburse Lessee the reasonable cost of such repair, less the
deductible. If not so repairable, Lessee shall pay Lessor the lesser of $5,000
or the fair market value of the Equipment immediately prior to the Casualty
Loss. Upon Lessor's receipt of payment the Lease for that item shall terminate.
27. TAXES. Lessee shall promptly reimburse Lessor for, or shall pay
directly if so requested by Lessor, as additional Rent, all taxes, charges, and
fees imposed or levied by any governmental body or agency upon or in connection
with the purchase, ownership, leasing, possession, use or relocation of the
Equipment or Programming or in connection with the financing of LPM Charges or
otherwise in connection with the transactions contemplated by the Lease,
excluding, however, all taxes on or measured by the net income of Lessor. Upon
request, Lessee will provide proof of payment. Any other taxes, charges and
fees relating to the licensing, possession or use of licensed program materials
will be governed by the License Agreement.
28. LESSOR'S PAYMENT. If Lessee fails to perform its obligations under
Paragraph 27 or 31 or to discharge any encumbrances created by Lessee, Lessor
shall have the right to substitute performance, in which case, Lessee shall pay
Lessor the cost thereof.
29 TAX INDEMNIFICATION (APPLIES ONLY FOR EQUIPMENT UNDER OPTIONS A OR B).
The Lease is entered into on the basis that under the Internal Revenue Code of
1985, 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 [ILLEGIBLE] 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 or possession of any
item of Equipment through Lessee, Lessor shall lose the right to claim or shall
suffer any disallowance or recapture of all or any portion of any ACRS
deductions or interest deductions (Tax Loss) with respect to any item of
Equipment, then, promptly upon written notice to Lessee that a Tax Loss has
occurred, Lessee shall reimburse Lessor the amount determined below.
The reimbursement shall be an amount that, in the reasonable opinion of
Lessor, shall make Lessor's after-tax rate of return and cash flows (Financial
Returns), over the term of the Lease for such item of Equipment, equal to the
expected Financial Returns that would have been otherwise available. The
reimbursement shall take into account the effects of any interest, penalties and
additions to tax required to be paid by Lessor as a result of such Tax Loss and
all taxes required to be paid by Lessor as a result of any payments pursuant to
this paragraph. Financial Returns shall be based on economic and tax assumptions
used by Lessor in entering into the Lease.
All the rights and privileges of Lessor arising from this Paragraph 29
shall survive the expiration or termination of the Lease.
For purposes of determining tax effects under Paragraphs 18, 27, 29 and
30, the term "Lessor" shall include, to the extent of interests, any partner in
Lessor and any affiliated group of corporations, and each member thereof, of
which Lessor or any such partner is or shall become a member and with which
Lessor or any such partner joins in the filing of consolidated or combined
returns.
30. GENERAL INDEMNITY. This Lease is a net lease. Therefore, Lessee shall
indemnify Lessor against, and hold 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 thereon by
Lessor, including taxes on or measured by the net income of Lessor, the balance
will equal the amount due hereunder. Lessee's obligations under this paragraph
shall not constitute a guarantee of the residual value or useful life of any
item of Equipment or a guarantee of any debt of Lessor. The provisions of this
paragraph with regard to matters arising during the Lease shall survive the
expiration or termination of the Lease.
31. LIABILITY INSURANCE. Lessee shall obtain and maintain comprehensive
general liability insurance, in an amount of $1,000,000 or more for each
occurrence, with an insurer having a "Best's Policyholders" rating of B+ or
better. The policy shall name Lessor as an additional insured as Lessor's
interests may appear and shall contain a clause requiring the insurer to give
Lessor at least one month's prior written notice of the cancellation, or any
alteration in the terms, of the policy. Lessee shall furnish to Lessor, upon
request, evidence that such insurance coverage is in effect.
32. SUBLEASE AND RELOCATION OF EQUIPMENT; ASSIGNMENT BY LESSEE. Upon
Lessor's prior written consent, which will not be unreasonably withheld, Lessee
may sublet the Equipment or relocate it from the Equipment Location. No sublease
or relocation shall relieve Lessee of its obligations under the Lease. In no
event shall Lessee remove the Equipment from the United States. Lessee shall not
assign, transfer or otherwise dispose of the Lease or Equipment, or any interest
therein, or create or suffer any ▇▇▇▇, ▇▇▇▇ or encumbrance thereof except those
created by Lessor.
33. ASSIGNMENT BY LESSOR. Lessee acknowledges and understands that the
terms and conditions of the Lease have been fixed to enable Lessor to sell and
assign its interest or grant a security interest or interests in the Lease and
the Equipment individually
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LESSEE'S COPY
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or together, in whole or in part, for the purpose of securing loans to Lessor or
otherwise. If Lessee is given written notice of any assignment, it shall
promptly acknowledge receipt thereof in writing. Each such assignee shall have
all of the rights of Lessor under the Lease. Lessee shall not assert against any
such assignee any set-off, defense or counterclaim that Lessee may have against
Lessor or any other person, Lessor shall not be relieved of its obligations
hereunder as a result of any such assignment unless Lessee expressly consents
thereto.
34. FINANCING. If the Lease provides for financing of LPM Charges, Lessor
will pay such Charges directly to IBM. Any other charges due IBM under the
License Agreement shall be paid directly to IBM by Lessee. Lessee's obligation
to pay Rent shall not be affected by any discontinuance, return or destruction
of any license or licensed program materials under the License Agreement on or
after the date LPM Charges are due. If Lessee discontinues any of the licensed
program materials in accordance with the terms of the License Agreement prior to
the date LPM Charges are due, the financing of affected LPM Charges shall be
cancelled.
35. FINANCING PREPAYMENT (Does Not Apply For Items Of Equipment). Lessee
may terminate an item of Financing (but not an item of Equipment) by prepaying
its remaining Rent. Lessee shall provide Lessor with notice of the intended
prepayment date which shall be at least one month after the date of the notice.
Lessor may, depending on market conditions at the time, make an adjustment in
the remaining Rent to reflect such prepayment and shall advise Lessee of the
balance to be paid. If, prior to Lease expiration, Lessee purchases the
Equipment or if the Lease is terminated, Lessee shall at the same time prepay
any related Financing including that for programs licensed to the Equipment.
36. DELINQUENT PAYMENTS. If any amount to be paid to Lessor is not paid on
or before its due date, Lessee shall pay Lessor on demand 2% of such late
payment for each month or part thereof from the due date until the date paid or,
if less, the maximum allowed by law.
37. DEFAULT; NO WAIVER. Lessee shall be in default under the Lease upon
the occurrence of any of the following events: (a) Lessee fails to pay when due
any amount required to be paid by Lessee under the Lease and such failure shall
continue for a period of seven days after the due date; (b) Lessee fails to
perform any other provisions under the Lease or violates any of the covenants or
representations made by Lessee in the Lease, or Lessee fails to perform any of
its obligations under any other Lease entered into pursuant to this Agreement,
and such failure or breach shall continue unremedied for a period of 15 days
after written notice is received by Lessee from Lessor; (c) Lessee violates any
of the covenants or representations made by Lessee in any application for credit
or in any agreement with IBM with respect to the Equipment or licensed program
materials or fails to perform any provision in any such agreement (except the
obligation to pay the purchase price or LPM Charges); (d) Lessee makes an
assignment for the benefit of creditors, whether voluntary or involuntary, or
consents to the appointment of a trustee or receiver, or if either shall be
appointed for Lessee or for a substantial part of its property without its
consent; (e) any petition or proceeding is 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, pro-rated 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
manner, 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
expenses, including legal and collection fees, incurred by Lessor in enforcing
the terms, conditions or provisions of the Lease or in protecting Lessor's
rights and interests in the Lease and the Equipment.
40. OWNERSHIP; PERSONAL PROPERTY; 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 realty. Licensed program materials are licensed and
provided by IBM directly to Lessee under the terms and conditions of the License
Agreement.
41. NOTICES; ADMINISTRATION. Service of all notices under the Lease shall
be sufficient if delivered personally or mailed to Lessee at its address
specified in the Supplement or to IBM Credit Corporation as Lessor in care of
the IBM Branch Office specified in the Supplement. Notice by mail shall be
effective when deposited in the United States mail, duly addressed and with
postage prepaid. Notices, consents and approvals from or by Lessor shall be
given by Lessor or on its behalf by IBM and all payments shall be made to IBM
until Lessor shall notify Lessee otherwise.
42. LESSEE REPRESENTATION. If the Lease includes Financing, Lessee
represents that it is (a) a corporation if any item of Equipment is located in
Ohio, Mississippi, Virginia or West Virginia and/or (b) a business corporation
if any item of Equipment is located in Pennsylvania.
43. REVISIONS FOR PREVIOUSLY INSTALLED EQUIPMENT. Equipment installed with
Lessee under an IBM lease or rental agreement may be purchased by Lessor, on the
Effective Date of Purchase (as defined in the Purchase Agreement), for lease to
Lessee under Option B or B'. For such Equipment, the Lease shall be revised as
follows:
Paragraphs 4 and 26 -- replace "Estimated Shipment Date" by "Intended
Effective Date of Purchase"; replace "delivery" and "Date of Installation" by
"Effective Date of Purchase";
Paragraph 7 -- add at the end of the first paragraph, "Assignment of the
option to purchase installed Equipment at the net purchase option price under an
IBM lease or rental agreement will be permitted only when Lessee submits the
Supplement in sufficient time to achieve the Intended Effective Date of
Purchase. The Effective Date of Purchase under this assignment shall be the
later of the first day of the Quotation Month or the day on which the applicable
Supplement is accepted by Lessor. If the Quotation Month expires and the
purchase of Equipment is not concluded, this assignment and Lease will be null
and void regarding any such Equipment and all rights, duties and obligations of
Lessee and IBM will remain in accordance with the provisions of the IBM
agreement under which the Equipment is currently installed.";
Paragraphs 11 and 12 -- delete both paragraphs; and
Paragraph 15 -- replace the entire paragraph with the following: "The Rent
shall be based on the Lease Rate specified in the Supplement or such greater
Lease Rate as may be specified by written notice to Lessee more than one month
before the Effective Date of Purchase. The Unit Purchase Price is subject to
change in accordance with the referenced Purchase Agreement. Lessee may
terminate the Lease for 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.
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