Exhibit 10.72
MARKETING AGREEMENT
BETWEEN
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
AND
LEASING SOLUTIONS, INC.
JULY 24, 1996
NCR/LSI Agreement
TABLE OF CONTENTS
RECITALS 1
1.0 DEFINITIONS..................................... 1
2.0 LEASING SERVICES................................ 3
2.1 PROVISION OF SERVICES; EXCLUSIVITY.............. 3
2.2 LEASE QUOTATIONS................................ 4
2.3 CUSTOMER QUALIFICATIONS......................... 4
2.4 TERMS OF LEASES OFFERED BY LSI.................. 4
2.5 UPGRADES........................................ 4
2.6 BILLING AND COLLECTION.......................... 5
2.7 OBLIGATION TO ENTER INTO LEASES................. 5
3.0 PRODUCTS........................................ 5
3.1 PRODUCTS TO BE LEASED........................... 5
3.2 PRODUCT PURCHASES FROM VENDOR BY LSI............ 5
3.3 MARKETING AND REMARKETING BY VENDOR AND LSI..... 6
3.4 LICENSING OF SOFTWARE........................... 7
4.0 POOLING AND REMARKETING FEES.................... 8
4.1 POOLS........................................... 8
4.2 REMARKETING FEE................................. 8
4.3 LOSSES FROM POOLS............................... 8
4.4 AMORTIZATION OF COSTS AND EXPENSES.............. 9
5.0 SHARED OBLIGATIONS OF LSI AND VENDOR............ 10
5.1 PROGRAM EXPENSES................................ 10
5.2 TRAINING........................................ 10
Page 1
NCR/LSI Agreement
6.0 OBLIGATIONS OF VENDOR........................... 10
6.1 Vendor Program Manager.......................... 10
6.2 New Product Plans............................... 10
6.3 Pricing......................................... 10
7.0 OBLIGATIONS OF LSI.............................. 11
7.1 Program Manager................................. 11
7.2 Reports......................................... 11
7.3 Sales Incentive................................. 11
7.4 Audit........................................... 11
8.0 REPRESENTATIONS, WARRANTIES AND COVENANTS....... 12
8.1 Representations and Warranties of Vendor........ 12
8.2 Representations and Warranties of LSI........... 13
8.3 Product Warranty................................ 14
8.4 Repurchase of Certain Products by Vendor........ 14
8.5 Intellectual Property Claims.................... 14
9.0 INDEMNIFICATION................................. 15
9.1 Indemnification by Vendor....................... 15
9.2 Indemnification by LSI.......................... 15
9.3 Indemnification Procedures...................... 16
10.0 DEFAULT AND REMEDIES............................ 16
10.1 Defaults........................................ 16
10.2 Remedies........................................ 17
11.0 ASSIGNMENT...................................... 17
11.1 No Assignment of Rights or Obligations.......... 17
11.2 Assignment of Lease Transactions................ 17
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NCR/LSI Agreement
12.0 MISCELLANEOUS................................. 18
12.1 Term; Termination............................. 18
12.2 Entire Agreement; Waiver; Modification........ 18
12.3 Notices....................................... 19
12.4 Exhibits...................................... 19
12.5 Survival...................................... 19
12.6 Governing Law................................. 19
12.7 Severability.................................. 20
12.8 Counterparts.................................. 20
12.9 Headings...................................... 20
12.10 Limitation of Liability; Exclusive Remedies... 20
12.11 Dispute Resolution............................ 20
EXHIBIT A - FORM OF LEASE............................ 22
EXHIBIT B - VENDOR PRODUCTS.......................... 23
EXHIBIT C - LEASE PRICING............................ 26
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MARKETING AGREEMENT
This Marketing Agreement (this "Agreement") is entered into as of July 24, 1996,
by and between ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a Maryland corporation ("Vendor"), and Leasing
Solutions, Inc., a California corporation ("LSI").
RECITALS
A. LSI has the expertise and experience to provide a leasing facility to Vendor
for use principally with Vendor's marketing of certain of its products to
its domestic customers. Although such leasing facility would focus on the
providing of financing for operating leases, it could also involve providing
custom-tailored leases, leases of packages of equipment (including related
software and non-Vendor products), and other lease and conditional sale
transactions with respect to which LSI's services are deemed to be of value
to Vendor and such customers.
B. Vendor desires, consistent with its contractual obligations to other
providers of leasing facilities, to make available such leasing services of
LSI to such customers and, in connection therewith, to sell Vendor products
to LSI at an agreed upon price.
C. LSI and Vendor jointly have the expertise to remarket Vendor products
purchased by LSI, as such products cease to be subject to a lease, and LSI
desires to facilitate such a joint remarketing effort by paying Vendor a
remarketing fee from certain residual revenues generated by such
remarketing.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing recitals and the covenants of
the parties herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1.0 DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings
provided below:
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1.1 "Business Day" shall mean any day except Saturday or Sunday or a day on
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which banks are required or permitted to be closed in California.
1.2 "Confidential Information" shall have the meaning ascribed to it in Section
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8.1 hereof.
1.3 "Customer" or "Lessee" shall mean a domestic customer of Vendor which
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qualifies as a lessee of Products from LSI under the terms and conditions of
this Agreement.
1.4 "Customer Purchase Price" shall mean, with respect to any Product and
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Customer, the price for such Product that Vendor has quoted to such Customer.
1.5 "Initial Term" shall mean August 1, 1996 through July 31, 1997.
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1.6 "Lease" shall mean a lease between LSI and a Lessee, in the form attached
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hereto as Exhibit A, as such form may change, in LSI's sole discretion, from
time to time. A Lease, based on its economic terms, may also constitute a
conditional sale agreement.
1.7 "Net Purchase Price" shall mean, with respect to any Product and Customer,
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the Customer Purchase Price, less any applicable discounts granted to LSI by
Vendor for such Product.
1.8 "Operating Lease" shall mean a lease transaction that qualifies as such
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under the guidelines of Statement of Financial Accounting Standards No. 13.
("FASB 13"), as determined by the Lessee thereunder.
1.9 "Period One" shall mean the period from August 1, 1996 through July 30,
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1997.
1.10 "Pool One - Large Systems" shall have the meaning ascribed to it in
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Section 4.1 hereof.
1.11 "Pool One - Mid-Range Systems" shall have the meaning ascribed to it in
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Section 4.1 hereof.
1.12 "Products" shall mean all Vendor Products and any other products, items or
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services, including, without limitation, maintenance and installation, that may
be included in a Lease pursuant to the terms of this Agreement.
1.13 "Program" shall mean the vendor leasing program between Vendor and LSI
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described herein.
1.14 "Qualified Transaction" shall mean a leasing transaction with a Lessee
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which involves Products with a Net Purchase Price to LSI of not less than
$25,000 and which meets the credit, product and other criteria set forth in this
Agreement, including, without limitation, in Section 2.3 hereof.
1.15 "Repurchase Price" shall mean, with respect to any Product, the price
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equal to the Net Purchase Price of such Product, plus interest on the
unamortized portion of the Net Purchase Price, from the date of LSI's purchase
of such Product until the payment of the Repurchase Price, at a rate equal to
the interest rate on 36 month U.S. Treasury Notes, with a constant maturity, as
of such date of repurchase, plus 650 basis points, less the lease payments (net
of administrative fees and other costs and expenses described in Section 4.4
hereof) with respect to such Product received by LSI.
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1.16 "Residuals" shall mean, with respect to any pool of Products subject to
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Leases, the total lease and/or sale proceeds collected with respect to such
Products after all costs and expenses of LSI related to such Products,
including, without limitation, the Net Purchase Price thereof, have been
amortized. All such costs and expenses, which are listed below and described in
Section 4.4 hereof, shall be amortized by such lease and sale proceeds that are
payable to, and received by, LSI on or after the commencement date of the
related Lease, in the following order: (i) Administrative Fees; (ii) Sales
Commissions; (iii) Other Expenses; (iv) Investment Recovery Expenses; and (v)
Net Purchase Price Recovery.
1.17 "Subsequent Period" shall mean each period of one year, or any portion
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thereof, beginning on each anniversary date of this Agreement and subsequent to
the Initial Term of this Agreement, during which this Agreement is in effect.
1.18 "Vendor Products" shall mean hardware and software products marketed by
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Vendor set forth on Exhibit B, which may be amended from time to time by the
mutual agreement of Vendor and LSI. Vendor Products initially covered by this
Agreement shall be categorized as either (a) "NCR Large Systems", or (b) "NCR
Mid-Range Systems", as defined in Exhibit B.
1.19 "Upgrade" shall mean a product that is an addition, modification,
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enhancement or replacement product which enhances the efficiency or productivity
of previously installed Vendor Product(s).
2.0 LEASING SERVICES
2.1 PROVISION OF SERVICES; EXCLUSIVITY.
LSI shall provide lease financing services to Vendor's Customers pursuant to the
terms and conditions of this Agreement. Vendor hereby designates LSI as its
preferred source, through Vendor, for providing lease financing for Vendor
Products to Customers in cases where AT&T Capital Corporation or an affiliate
thereof has declined to provide such lease financing or a Customer has requested
that Vendor provide to it more that one source for lease financing. As a
result, Vendor (a) shall, within fifteen (15) days of the execution of this
Agreement, take appropriate steps to inform Vendor field sales personnel of
such designation, and (b) shall use all reasonable efforts to give LSI the same
advance written notice of its relevant sales, marketing and training events and
other events involving Customers as it gives to its own personnel, and shall
permit LSI personnel to attend and, as appropriate, participate in each such
event. Notwithstanding the foregoing, nothing herein or in any other
contractual obligation of Vendor shall preclude any Customer from obtaining
lease financing for Products from any source it chooses. In the event LSI
chooses not to provide a requested lease quotation for a proposed Lease with a
Customer, or fails to timely response to any such requested lease quotation,
Vendor may permit the Vendor field sales personnel to assist such Customer in
obtaining lease financing for such Lease from another source.
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2.2 LEASE QUOTATIONS.
LSI shall provide lease quotations for proposed Leases with Customers for
Qualified Transactions submitted to LSI by Vendor during the term of this
Agreement. The lease pricing terms, and the assumptions underlying such terms,
to be used initially by LSI for the purposes of making such quotations are set
forth on Exhibit C hereto. Any material change in any of such terms or
assumptions, whether as a result of such term or assumption ceasing to be valid
or correct or otherwise, shall, at LSI's election and sole discretion, result in
a modification of the lease pricing specified in Exhibit C, and Vendor shall not
be responsible for any costs or expenses of LSI resulting from such
modification.
2.3 CUSTOMER QUALIFICATIONS.
LSI shall not be obligated to enter into Leases with any Customer which (a) is
not a corporation formed, and with its principal offices in, the United States,
(b) proposes to locate Products subject to a Lease outside the United States, or
does not have a credit rating of Baa or better, as rated by ▇▇▇▇▇'▇ Investor
Services or, in the case of a non-rated company, at least an equivalent
financial rating based on LSI's review of audited financial information of such
non-rated company made available to LSI. The determination of the financial
rating of any such company by LSI, after conducting such review, shall be
conclusive.
2.4 TERMS OF LEASES OFFERED BY LSI.
LSI shall offer Leases with non-cancelable terms of 24, 36, 48 and 60 months.
Upon the mutual agreement of LSI and Vendor, LSI shall offer Leases with (a) a
firm rental term of 12 months on a case-by-case basis, or (b) special structures
or term lengths not described herein if so requested by a Customer.
2.5 UPGRADES.
If LSI has leased Vendor Products pursuant to this Agreement to a Customer and
such Customer has notified Vendor that it desires to upgrade such Vendor
Products with additional Vendor Products or related Vendor software, Vendor will
give LSI written notice of such proposed upgrades. LSI shall have a right of
first refusal to purchase such upgrades from Vendor (for the purpose of leasing
them to such Customer) at terms no less favorable than those that would
otherwise be offered to the Customer if it desired to purchase such upgrades
itself. If LSI has leased Vendor Products pursuant to this Agreement to a
Customer and such Customer has notified Vendor that it desires to replace such
Vendor Products with new or substitute Vendor Products ("Replacement Products"),
Vendor will give LSI written notice of such proposed Replacement Products. LSI
shall have a right of first refusal to purchase such Replacement Products from
Vendor (for the purpose of leasing them to such Customer) at terms no less
favorable than those that would otherwise be offered to the Customer if it
desired to purchase the Replacement Products itself. The remarketing for the
Vendor Products being replaced by Replacement Products shall be subject to the
relevant provisions of this Agreement.
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2.6 BILLING AND COLLECTION.
LSI shall perform, at its expense, all billing and collection of the lease
payments and other amounts due from Customers under Leases subject to this
Agreement. Such services shall include filing UCC financing statements, as
necessary, with respect to Products, asset tracking of Products, and personal
property and sales tax reporting and filings. Vendor shall, at LSI's request,
cooperate with LSI and give LSI reasonable assistance in such collection
activities with respect to any monthly rental payments more than sixty (60) days
past due. LSI shall reimburse Vendor for any reasonable out-of-pocket expenses
it incurs in response to any such request by LSI.
2.7 OBLIGATION TO ENTER INTO LEASES.
LSI's obligation to enter into any Lease of Products with any Customer is
subject to (a) receipt by LSI of documentation with respect to such Lease in
form and substance acceptable to LSI, (b) the prospective Lessee under such
Lease not being in breach of any of its obligations to LSI under any other
agreement with LSI, and (c) the other conditions specified in this Agreement,
with respect to such obligations, having been met.
3.0 PRODUCTS
3.1 PRODUCTS TO BE LEASED.
Subject to the other provisions of this Agreement:
(a) LSI shall provide lease financing to Customers with respect to all
Products;
(b) With respect to proposed Leases of NCR Large Systems with terms of 24 or 36
months, LSI shall use its best efforts to structure such Leases such that
the Customers under such Leases will be able to determine that such Leases
qualify as Operating Leases;
(c) Upon the mutual agreement of Vendor and LSI, on a lease-by-lease basis, LSI
shall also provide lease financing to Customers with respect to Products
that are not Vendor Products.
Vendor hereby acknowledges that no assurances can be given, and no
representations or warranties have been made, by LSI with respect to the
eligibility for Operating Lease treatment of any Lease.
3.2 PRODUCT PURCHASES FROM VENDOR BY LSI.
(a) Vendor and LSI may mutually agree in writing, from time to time, to
negotiate unique discounts from the Customer Purchase Price for selected
transactions on a case-by-case basis.
(b) As soon as LSI receives from a Customer executed documentation with respect
to a Lease which is acceptable to LSI, LSI will promptly execute and
deliver to Vendor a
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purchase order, in the form of Exhibit D hereto, authorizing shipment to
such Customer of, and billing to LSI for, the Products subject to such
Lease.
(c) LSI shall pay Vendor the Net Purchase Price for Products purchased
hereunder on or before the fifteenth (15th) day of the month immediately
following the month in which LSI receives a Notice of Acceptance, in the
form set forth as part of Exhibit A hereto, with respect to such Products
from the Customer (the "Payment Date").
(d) LSI shall have the right to exercise a Customer's price protection rights
in the purchase agreement with respect to Products purchased by LSI for
lease to such Customer.
3.3 MARKETING AND REMARKETING BY VENDOR AND LSI.
(a) Marketing: Vendor and LSI shall cooperate with each other in order to
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permit LSI to accommodate a Customer's request to: (i) extend or renew a
Lease to such Customer; (ii) sell the Products subject to such Lease to
such Customer in the event such Customer elects to purchase such Products
at the end of the term of such Lease; or (iii) sell such Products during
the term of such Lease pursuant to a purchase option in such Lease
(collectively referred to as "Marketing"). Vendor and LSI will each give
the other notice of a potential Marketing of Products subject to this
Agreement within a reasonable time after becoming aware of such Marketing
opportunity.
(b) Returned Products: All Products subject to a Lease which are returned by a
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Customer to LSI for any reason ("Returned Products"), and which LSI desires
be remarketed with a product warranty from Vendor, shall be sent by LSI to
a location in the continental United States designated by Vendor so that
such Products may be refurbished according to Vendor's operational and
cosmetic standards. All refurbishing performed by Vendor with respect to
such Product shall be performed on a non-discriminatory basis, such that it
is performed, in any case, no differently (including from a quality,
prioritization and timing standpoint) than Vendor refurbishes or
manufactures any other unit of the same or a similar product. All costs of
refurbishing and certifying such Products so that they qualify for such
warranty shall be at LSI's expense; provided that the amount Vendor charges
LSI for refurbishing and certifying Products for such warranty shall not
exceed Vendor's then current GSA pricing for such services.
(c) Remarketing: All Returned Products shall be offered for resale or re-lease
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(collectively referred to as "Remarketing") by Vendor, on a non-
discriminatory basis, such that it is offered for sale and sold, or for
lease and leased, no differently (including from a prioritization and
timing standpoint) than Vendor resells or releases any other unit of such
Product. Each Remarketing shall be subject to LSI's approval; provided,
however, LSI shall not have the right to insist that any Returned Product
be sold or re-leased at a price in excess of the price at which Vendor is
then selling or leasing units of such Product. Vendor shall request in
writing LSI's prior written approval before consummating the sale or re-
lease of any Returned Product, and all such sales and re-leases shall be
documented by LSI. Vendor shall invoice LSI for all charges for
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refurbishing and certifying Products during the month immediately following
the month in which such Products are Remarketed. A statement of such
charges, in reasonable detail, shall accompany such invoice. LSI shall
remit payment for such invoice on the terms applicable with respect to the
payment of such services under Vendor's then current GSA pricing for such
services.
(d) Sales Commission: In consideration of Vendor's Marketing and Remarketing
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assistance, LSI shall pay to Vendor a sales commission ("Sales Commission")
consistent in magnitude with Vendor's field compensation plan for
comparable efforts on Vendor's behalf. It is the intent of the parties
that the Sales Commission be directed to the sales person and sales
management whose efforts can be attributed to such Marketing and
Remarketing. Vendor shall include all of the economic attributes of
marketing or remarketing giving rise to a Sales Commission to a sales
person or sales manager in the determination of such sales person's and
sales manager's commission and quota goals. LSI reserves the right to
modify the amount of any such Sales Commission. LSI shall remit payment
for Sales Commissions within 15 days after the end of the calendar month in
which such Marketing and Remarketing is concluded.
(e) LSI Identified Remarketing Opportunity: Vendor and LSI agree that Vendor's
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responsibilities under this Paragraph 3.3 are not intended to be exclusive
and that LSI may engage in Remarketing of LSI owned Products. In such
event, Vendor shall cooperate with LSI in Remarketing Returned Products for
which LSI has identified a Remarketing opportunity. LSI shall give Vendor
written notice of each such Remarketing opportunity, and Vendor shall have
five Business Days from receipt of such notice to either (i) purchase from
LSI the Returned Products at a price and terms agreeable to LSI, or (ii)
consent to LSI consummating such Remarketing opportunity. In the event LSI
does not timely consummate any such purchase of Products, it shall be
deemed to have consented to the Remarketing opportunity for such Products.
3.4 LICENSING OF SOFTWARE.
In connection with each Lease of Vendor Products, Vendor will license the
software included in such Vendor Products to LSI (with a right to sublicense to
the Customer under such Lease) pursuant to the terms and conditions of Vendor's
standard license agreement for such software, but without any obligation to pay
a fee or any similar payment for such license other than the fee that would be
payable by such Customer if it licensed such software directly from Vendor. If
LSI sells or re-leases such Vendor Products, the first entity that purchases or
re-leases such Vendor Products directly from LSI shall have the right to license
such software, as is, pursuant to the terms and conditions of Vendor's standard
license agreement for such software that existed at the time of the initial
installation of such Vendor Products under such Lease. Such sale or re-lease by
LSI shall not, by itself, cause any additional license or similar fees to be due
Vendor with respect to such software. Any entity that purchases or takes
assignment of rights and interests in Vendor Products from a party other than
Vendor or LSI shall not have the rights described in this Section 3.4.
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4.0 POOLING AND REMARKETING FEES
4.1 POOLS.
All NCR Mid-Range Products purchased by LSI from Vendor for lease to Customers
during Period One, and the related Leases, shall be grouped into a pool
designated as "Pool One - Mid-Range." All NCR Mid-Range Products purchased by
LSI from Vendor for lease to Customers during each Subsequent Period, and the
related Leases, shall be grouped into a pool with an appropriate alpha numeric
designation for each Subsequent Period (a "Subsequent Pool"). With regard to NCR
Large System Products, all NCR Large System Products purchased by LSI from
Vendor for lease to Customers during Period One, and the related Leases, shall
be grouped into a pool designated as "Pool One - Large Systems." All NCR Large
Systems Products purchased by LSI from Vendor for lease to Customers during each
Subsequent Period, and the related Leases, shall be grouped into a pool with an
appropriate alpha numeric designation for each Subsequent Period (a "Subsequent
Pool").
4.2 REMARKETING FEE.
So long as this Agreement is in effect and Vendor is not in breach of any of its
obligations or representations or warranties in this Agreement, LSI shall pay
Vendor a remarketing fee equal to fifty percent (50%) of the total Residuals
received with respect to each Pool and each Subsequent Pool, determined on a
pool-by-pool basis. The remarketing fee with respect to Residuals received
during a calendar month shall be paid to Vendor on or before the thirtieth
(30th) day of the immediately succeeding month.
4.3 LOSSES FROM POOLS.
If a Pool has begun to generate Residuals and any other pool is projected, at
that time or at any subsequent time, to show a loss such that there will not be
any Residuals with respect to such pool, the remarketing fee payable to Vendor
from Residuals with respect to any pool that is generating Residuals shall
terminate and all such remarketing fees shall be applied to amortize the costs
and expenses of LSI and Vendor specified in Section 4.4 hereof with respect to
the Products in any pool projected to show a loss. For purposes of this
Agreement, a pool will be deemed to be projecting a loss when, on the
Determination Date (as hereinafter defined) or thereafter, all of the costs and
expenses with respect to such pool, as described in Section 4.4 hereof, will not
be completely amortized by the lease payments remaining under the non-cancelable
term of the Leases in such pool under which no event of default has occurred and
is continuing. The "Determination Date" shall be such number of months after
the close of the pool equal to the then dollar weighted average unexpired term
of all Leases in such pool as of the close of such pool (by reference to the Net
Purchase Price of all Products subject to such Leases).
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4.4 AMORTIZATION OF COSTS AND EXPENSES.
For the purpose of calculating Residuals for a pool, all lease payments received
on or after the commencement date of each Lease, and proceeds of sale received
with respect to Products in such pool, shall be used to amortize all of the
costs and expenses of LSI and Vendor described in this Section 4.4, in the
following order:
(a) Administrative Fees. Two percent (2%) of the lease payments received and
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sale proceeds received with respect to such Products (before amortization
of any such costs and expenses) as an administrative fee (an
"Administrative Fee"), which LSI shall be entitled to retain to partially
reimburse it for the expenses associated with its administrative activities
with respect to the Leases, including, without limitation, billing,
collecting, filing UCC financing statements, asset tracking, personal
property tax filings, sales tax reporting and production of lease analysis
reports reflecting the status of all lease activity;
(b) Sales Commissions. Any Sales Commissions paid by LSI to Vendor pursuant to
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Section 3.3 (d) hereof;
(c) Other Expenses. Other expenses shall include reasonable commercial out-of-
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pocket expenses incurred by LSI associated with the leasing and remarketing
of Products ("Other Expenses"), including, without limitation, cost of
repossession, transportation, insurance, storage, refurbishing and warranty
certification, as well as sales commissions (other than as described in
Paragraph (b) above) paid to Vendor employees and LSI employees, including,
without limitation, the sales assistance fee described in Section 7.3
hereof. Other Expenses shall not include the salary of employees of LSI or
Vendor and shall not include other overhead items of either party;
(d) Investment Recovery Expense. The investment recovery expense ("Investment
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Recovery Expense") determined by multiplying the applicable amount
indicated below ("Investment Recovery Rate") times the unamortized portion
of the Net Purchase Price of Products subject to Leases, commencing with
the date of payment of such purchase price, and assuming that the lease
payments and proceeds of sale are received on the last day of the month in
which such payments and proceeds are received. The Investment Recovery
Rate shall be:
(i) with respect to Period One, for pools consisting of NCR Mid-Range
Products, 9.75% per annum; and for pools consisting of NCR Large Systems,
11.75% per annum; and
(ii) with respect to any Subsequent Period, for pools consisting of NCR
Mid-Range Products, a rate equal to the per annum interest rate, as of
April 1 of such period, of 36 month U.S. Treasury Notes, with a constant
maturity, plus 400 basis points; and for pools consisting of NCR Large
System Products, a
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rate equal to the interest rate, as of April 1 of such
period, of 36 month U.S. Treasury Notes, with a constant maturity, plus 600
basis points; and
(e) Net Purchase Price Recovery. The Net Purchase Price for Products paid by
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LSI.
5.0 SHARED OBLIGATIONS OF LSI AND VENDOR
5.1 PROGRAM EXPENSES.
During the term of this Agreement, LSI shall be solely responsible for, and
shall pay the costs associated with, the creation and publication of sales and
marketing materials for the Program. LSI and Vendor shall share equally all
other reasonable out-of-pocket costs with respect to the Program incurred by the
parties, including, without limitation, training of personnel, provided that
incurring, and the amount of, such costs are mutually agreed to in writing in
advance by LSI and Vendor. Such costs shall not include normal travel, living
and entertainment expenses of Vendor and LSI.
5.2 TRAINING.
LSI and Vendor will jointly develop and conduct lease financing training courses
for Vendor's sales personnel. Such training will focus on increasing the level
of knowledge of basic leasing fundamentals among Vendor's field sales force and
increasing utilization of the Program by all of such personnel and their
Customers. It is expected that such training will involve the use of printed
materials, videos, and seminars. LSI and Vendor will jointly develop a
newsletter with respect to leasing of Products and the Program for distribution
to Vendor's field sales organization.
6.0 OBLIGATIONS OF VENDOR
6.1 VENDOR PROGRAM MANAGER.
Vendor shall designate a Manager with respect to the Program (the "Vendor
Manager") who will act as the primary contact with, and liaison to, LSI in
connection with the Program. Vendor shall promptly notify LSI of any change or
imminent change in the individual designated as the Vendor Manager.
6.2 NEW PRODUCT PLANS.
Vendor shall use its best efforts to provide LSI with information regarding
Vendor's introduction of a new Product, and its intention to cease offering for
sale any Product, no later than ninety (90)
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days prior to such action. Such information shall be treated by LSI as
Confidential Information of Vendor pursuant to Sections 8.1 and 8.2 hereof.
6.3 PRICING.
Vendor shall use its best efforts to provide advance notification to LSI of
changes in Product pricing, including, without limitation, list prices, trade-in
allowances and rebates or other inducements. Notification of any such change
shall be made as promptly as practicable after Vendor has determined to make
such change and, in any event, in advance of announcement of such change to the
public. Such information shall be treated by LSI as Confidential Information
pursuant to Sections 8.1 and 8.2 hereof.
7.0 OBLIGATIONS OF LSI
7.1 PROGRAM MANAGER.
LSI shall designate a Manager for the Program (the "Program Manager"). The
Program Manager will act as the primary contact with, and liaison to, Vendor in
connection with the Program. LSI shall promptly notify Vendor of any change or
expected change in the individual designated as the Program Manager.
7.2 REPORTS.
LSI shall provide Vendor with reports, on a quarterly basis, with respect to
such information concerning the Program as Vendor may reasonably request and
which is readily available to LSI. Such reports shall include, without
limitation, information regarding total Vendor Product purchases by LSI by
location. In order to alert Vendor's sales personnel to additional sales
opportunities, LSI shall also quarterly provide to Vendor reports specifying all
Leases that are scheduled to expire within 180 days of each such report.
7.3 SALES INCENTIVE.
LSI shall pay Vendor a sales assistance fee equal to an amount mutually agreed
upon at the time it purchases Products. Such fees shall be used by Vendor in
any manner to provide incentive to Vendor's sales personnel as a result of
Customers entering into Leases under the Program, including, without limitation,
as bonuses, incentive programs, sales commissions and other awards.
7.4 AUDIT.
Upon at least five Business Days advance written notice, LSI shall permit Vendor
to conduct a reasonable audit of LSI's records, during normal business hours, in
order to confirm compliance by LSI with its obligations under this Agreement.
LSI shall not be responsible for any of Vendor's expenses in conducting such
audit.
Page 11
8.0 REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 REPRESENTATIONS AND WARRANTIES OF VENDOR.
Vendor hereby represents and warrants to LSI, as of the date of this Agreement,
as follows:
(a) Organization and Good Standing. Vendor is a corporation duly organized,
------------------------------
validly existing and in good standing under the laws of the state of its
incorporation. Vendor is duly qualified and in good standing as a foreign
corporation in each state where failure to be so qualified may have a
material adverse effect on the business or condition (financial or
otherwise) of Vendor or the ability of Vendor to meet its obligations under
this Agreement.
(b) Authority. Vendor has all requisite legal and corporate power to execute
---------
and deliver this Agreement and to perform its obligations under this
Agreement. The execution, delivery and performance of this Agreement has
been duly authorized by Vendor. Upon execution and delivery by each of the
parties hereto, this Agreement shall constitute the valid and binding
obligations of Vendor, enforceable against Vendor according to its terms.
(c) Consent. No consent, approval or authorization of any person or entity,
-------
including, without limitation, any governmental authority having
jurisdiction over the business or operations of Vendor, is required in
connection with the execution, delivery and performance by Vendor of this
Agreement.
(d) Conflicts. The execution, delivery, and performance of, and compliance
---------
with, this Agreement by Vendor will not result in any violation of, or be
in conflict with or constitute a default under, Vendor's Certificate of
Incorporation or Bylaws, any applicable law, including, without limitation,
any statute, rule, or regulation, or any contract, agreement, mortgage,
indenture, instrument, judgment, decree or order presently in effect and
applicable to Vendor, the violation of which, a conflict with which or a
default under which may have a material adverse effect on the business or
condition (financial or otherwise) of Vendor or on the ability of Vendor to
meet its obligations under this Agreement (collectively, the "Vendor
Agreements and Orders").
(e) Litigation. No action, suit, proceeding or investigation, the outcome of
----------
which could have a material adverse effect on the business or condition
(financial or otherwise) of Vendor, or on the ability of Vendor to meet its
obligations under this Agreement, is pending against Vendor.
(f) No Default. Vendor is not in default with respect to any of the Vendor
----------
Agreements and Orders, nor has Vendor received any notice of default under
any of the Vendor Agreements and Orders, which default may have a material
adverse effect on the
Page 12
business or condition (financial or otherwise) of Vendor or on the ability
of Vendor to meet its obligations under this Agreement.
(g) Products. With respect to Products sold by Vendor to LSI pursuant to this
--------
Agreement, (i) Vendor will have the absolute right to sell and transfer all
of the hardware Products it sells to LSI, and to license all of the
software Products it licenses to LSI, as of the respective effective dates
of such sales and licenses; (ii) upon each sale of Products to LSI by
Vendor, Vendor will pass to LSI good and marketable title to such Products,
and upon each license of Products constituting software, Vendor will pass
to LSI valid and enforceable licenses to such Products, free and clear of
all liens, claims and encumbrances; (iii) Vendor will have no agreements,
whether written or oral, with any Customer with respect to any Products it
sells or licenses to LSI that have not been disclosed in writing to LSI
prior to the consummation of such sale or license, and (iv) all Products,
other than insignificant portions thereof, shall be new and not
refurbished.
8.2 REPRESENTATIONS AND WARRANTIES OF LSI.
LSI hereby represents and warrants and covenants to Vendor, as of the date of
this Agreement, as follows:
(a) Organization and Good Standing. LSI is a corporation duly organized,
------------------------------
validly existing and in good standing under the laws of the State of
California. LSI is duly qualified and in good standing as a foreign
corporation in each state where failure to be so qualified may have a
material adverse effect on the business or condition (financial or
otherwise) of LSI or the ability of LSI to meet its obligations under this
Agreement.
(b) Authority. LSI has all requisite legal and corporate power to execute and
---------
deliver this Agreement, and to perform its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
LSI has been duly authorized by LSI. Upon execution and delivery by each
of the parties hereto, this Agreement shall constitute the valid and
binding obligations of LSI, enforceable against LSI according to its terms.
(c) Consent. No consent, approval or authorization of any person or entity,
-------
including, without limitation, any governmental authority having
jurisdiction over the business or operations of LSI, is required in
connection with the execution, delivery and performance by LSI of this
Agreement.
(d) Litigation. No action, suit, proceeding or investigation, the outcome of
----------
which could have a material adverse effect on the business or condition
(financial or otherwise) of LSI, or the ability of LSI to meet its
obligations under this Agreement, is pending against LSI.
(e) Conflicts. The execution, delivery, and performance of, and compliance
---------
with, this Agreement by LSI will not result in any violation of, or be in
conflict with or constitute a default under, LSI's Articles of
Incorporation or Bylaws, any applicable law, including,
Page 13
without limitation, any statute, rule or regulation, or any contract,
agreement, mortgage, indenture, instrument, judgment, decree or order
presently in effect and applicable to LSI (collectively, the "LSI
Agreements and Orders"), the violation of which, a conflict with which or a
default under which may have a material adverse effect on the business or
condition (financial or otherwise) of LSI or on the ability of LSI to meet
its obligations under this Agreement (collectively, the "LSI Agreements and
Orders").
(f) No Default. LSI is not in default with respect to any of the LSI
----------
Agreements and Orders, nor has LSI received any notice of default under any
of the LSI Agreements and Orders, which default may have a material adverse
effect on the business or condition (financial or otherwise) of LSI or the
ability of LSI to perform its obligations under this Agreement.
8.3 PRODUCT WARRANTY.
Each of the Vendor Products sold to LSI pursuant to this Agreement shall have
the same warranty as is normally granted by Vendor to other purchasers of such
Vendor Products, and LSI shall not make any representations or warranties
regarding any Vendor Product, whether in a Lease or otherwise, which is more
extensive than, or outside the scope of, Vendor's standard warranty for such
Vendor Product. Vendor shall, to the extent reasonably possible, assign to LSI
any warranty on any Product purchased hereunder which is not a Vendor Product.
8.4 REPURCHASE OF CERTAIN PRODUCTS BY VENDOR.
In the event that a Lessee under any Lease to which Products are subject, prior
to expiration of any committed term under the Lease, ceases to make lease
payments as a result of a "Vendor Default" (as defined below), then Vendor
shall, at LSI's election, repurchase from LSI the Products subject to such Lease
at the Repurchase Price thereof plus any other out-of-pocket expenses incurred
by LSI directly as a result of such Vendor Default. A "Vendor Default," with
respect to a Vendor Product, shall mean that such Vendor Product failed to
perform in accordance with Vendor's specifications with respect to such Vendor
Product, Vendor's standard warranty with respect to such Vendor Product or any
other written representations or written warranties given by Vendor to LSI or
the Lessee of such Vendor Product.
8.5 INTELLECTUAL PROPERTY CLAIMS.
Each party will notify the other party promptly after it becomes aware of any
third party Claim of infringement of a United States patent, copyright or trade
secret involving any Vendor Product leased by LSI to a Customer (collectively, a
"Claim"). Vendor shall defend or settle, at its own expense, any Claim or suit
involving a Claim brought against LSI or any Assignee permitted pursuant to
Section 11.2 hereof (the "Assignee"). Vendor shall pay all amounts payable in
any such settlement and all costs and damages awarded in any such suit if: (a)
Vendor is not otherwise aware of such Claim or suit and LSI gives Vendor
sufficient notice of such Claim or suit that its ability to defend such Claim or
suit is not materially adversely affected; (b) LSI provides to Vendor all
information concerning such Claim or suit as it reasonably requests; and
Page 14
(c) LSI provides Vendor with such cooperation and assistance with respect to its
involvement in such Claim or suit, at Vendor's expense, as Vendor may reasonably
request. Vendor shall have sole authority to settle or defend any Claim or suit
involving a Claim; provided, however, any such settlement shall include a
complete release of LSI and, as applicable, the Assignee. In the defense or
settlement of any Claim or suit involving a Claim, Vendor may, at its expense,
(y) procure for LSI and, as applicable, the Assignee, and each Customer leasing
the subject Vendor Product from LSI, and their respective assigns and
transferees, the right to continue using and leasing such Vendor Product, or (z)
modify such Vendor Product so that it becomes non-infringing but continues to
have the same performance and compatibility characteristics and capabilities as
it possessed prior to such modification. If Vendor is unable, after reasonable
efforts, to obtain either of such remedies with respect to a Vendor Product, it
will have the right to refund the purchase price paid by LSI to Vendor for such
Vendor Product and the one-time license fees for software included in such
Vendor Product, as well as the purchase price and licensee fees paid by LSI with
respect to other Vendor Products and related software acquired for use with such
Vendor Product and related software. The amount of such refund will be pro-
rated, based on the number of full months between the date of purchase of such
products and software and the date of such refund and an assumed five (5) year
sum-of-the-digits amortization of the refund amount. Vendor's indemnification
obligations under this Section 8.5 shall not be applicable with respect to any
Vendor Products modified by other than Vendor. This Section 8.5 states Vendor's
entire liability for infringement of patents, copyrights and trade secrets with
respect to any Vendor Products acquired by LSI in connection with this
Agreement.
9.0 INDEMNIFICATION
9.1 INDEMNIFICATION BY VENDOR.
Subject to Section 12.11 hereof, Vendor hereby agrees to indemnify LSI against,
and defend and hold LSI harmless from, all damages, liabilities, losses and out-
of-pocket expenses and costs suffered or incurred by LSI, and any claims or
actions with respect thereto (other than those based upon any act or failure to
act by LSI or its employees or agents), (a) arising out of the wrongful or
negligent act or omission of Vendor in the performance of its duties and
obligations under this Agreement, (b) arising out of any breach by Vendor of any
of its representations and warranties or covenants in this Agreement, or (c)
arising out of the authorized operation, use, maintenance, or malfunction of any
Vendor Product subject to a Lease covered by this Agreement.
9.2 INDEMNIFICATION BY LSI.
LSI hereby agrees to indemnify Vendor against, and defend and hold Vendor
harmless from, all damages, liabilities, losses and out-of-pocket expenses and
costs suffered or incurred by it, and any claims or actions with respect thereto
(other than those based upon any act or failure to act by Vendor or its
employees or agents), (a) arising out of of LSI in the performance of its
duties and obligations under this Agreement, (b) arising out of
Page 15
the wrongful or negligent act or omissionany breach by LSI of any of its
representations and warranties or covenants in this Agreement, or (c) with
respect to any breach by LSI of its obligations under any Lease subject to this
Agreement.
9.3 INDEMNIFICATION PROCEDURES.
Any entity seeking indemnity pursuant to this Article 9 (the "Indemnified
Party") shall notify the indemnifying party (the "Indemnifying Party") of any
matter in respect of which it intends to seek indemnity promptly after becoming
aware of such matter. The indemnification contained herein with respect to such
matter and such Indemnified Party is expressly conditioned upon receipt by the
Indemnifying Party of such notice from such Indemnified Party; provided,
however, any such failure of the Indemnified Party to give such prompt notice of
such matter shall not relieve the Indemnifying Party of any of its obligations
hereunder with respect to such matter unless and to the extent that such failure
materially adversely affects its ability to defend any claim or action
constituting such matter. If so notified in writing of any action or claim
brought or threatened against an Indemnified Party for which an Indemnifying
Party is to provide indemnification hereunder, such Indemnifying Party shall
defend such action or claim at its expense, with counsel of its own choice, but
which shall be subject to approval by the Indemnified Party (which approval
shall not be unreasonably withheld or delayed), and pay the costs, damages and
attorneys' fees awarded in any such action or arising from any such claim and
any related liabilities, losses and expenses suffered or incurred by the
Indemnified Party; provided, however, that the Indemnifying Party shall have the
absolute right to control the defense and settlement of each such action and
claim. Notwithstanding the foregoing, the Indemnified Party shall have the
right to participate in the defense of any such claim or action with counsel of
its choice and at its expense and to approve any such settlement unless such
settlement includes a complete release of the Indemnified Party by the claimant
or plaintiff. Each Indemnified Party will take such actions (at the expense of
the Indemnifying Party) as may be reasonably requested by the Indemnifying Party
to assist the Indemnifying Party in connection with any such defense or
settlement.
10.0 DEFAULT AND REMEDIES
10.1 DEFAULTS.
Any of the following shall constitute a default hereunder (a "Default") by a
party:
(a) Such party shall fail to make any payment of any amount due and
undisputed pursuant to this Agreement, when due and payable, and such
failure shall continue for a period of ten (10) Business Days after the
non-defaulting party shall have made written demand therefor to the
defaulting party; or
(b) Such party shall fail or neglect to perform, keep, or observe any of
its covenants contained in this Agreement (other than with respect to any
of the covenants referred to in
Page 16
subsection 11.1(a) above), and such failure shall continue for a period of
thirty (30) days after the non-defaulting party shall have given written
notice thereof to the defaulting party; or
(c) Any representation or warranty made by such party in this Agreement
shall not be true and correct in any material respect as of the date made;
or
(d) Such party (i) makes an assignment for the benefit of its creditors,
(ii) admits in writing its inability to pay its debts as they mature,
(iii) institutes proceedings under the bankruptcy laws of the United
States, or (iv) has instituted against it, by a third party, proceedings
under the bankruptcy laws of the United States and such proceedings are
not dismissed within ninety (90) days after being commenced.
10.2 REMEDIES.
If a party is in Default hereunder, the other party may (a) proceed by
appropriate proceedings to enforce performance of the Agreement or to obtain an
injunction against its breach under Section 12.11 below, (b) recover damages for
such Default subject to and under Sections 12.10 and 12.11 below, and/or (c)
terminate this Agreement pursuant to Section 12.1 hereof.
11.0 ASSIGNMENT
11.1 NO ASSIGNMENT OF RIGHTS OR OBLIGATIONS.
Except as otherwise provided herein, the rights and obligations of either party
may not be assigned without the prior written consent of the other party.
11.2 Assignment of Lease Transactions.
(a) LSI may assign to others, other than a direct competitor of Vendor,
(an "Assignee") any or all of its rights in any Lease and the related
Products, and Assignee will, in entering into such transaction with LSI,
be acting in reliance upon and be entitled to the benefits of this Section
12.2. Accordingly, Vendor agrees with LSI and with each Assignee (for
whose benefit this covenant is expressly made) that:
(i) In the event of any such assignment of a Lease and the related
Product, Vendor shall, after receiving written notice of the
assignment by LSI to Assignee and LSI's authorization with respect
thereto, promptly pay to Assignee when due any payments that
thereafter became due to LSI hereunder with respect to such Lease or
Product, notwithstanding any defense, set-off or counterclaim
whatsoever (whether arising from a breach of this Agreement or
otherwise) that Vendor may from time to time have against LSI;
Page 17
(ii) After receipt of notice of such assignment of a Lease and the
related Product, Vendor shall not permit this Agreement, as it relates
to such Lease and related Product, to be terminated or canceled,
except in accordance with the terms hereof, or any of the provisions
hereof, as they relate to such Lease and related Product, to be
materially amended, without the prior written consent of Assignee; and
(iii) Vendor shall not require Assignee to perform any obligation or
covenant of LSI hereunder (and LSI shall not be released from any such
obligations or covenants), except that, if Assignee is making
collections directly from the Lessee under such Lease, Assignee shall
transmit to Vendor, pursuant to the terms and conditions of this
Agreement, all fees and other monies due to Vendor hereunder with
respect to such Lease.
(b) Notwithstanding the foregoing, it is parties' intention that, despite
any assignment of rights with respect to a Lease and the related Products,
for purposes of financing or refinancing the acquisition of such Products:
(i) LSI would continue to ▇▇▇▇ and collect the periodic rental
payments under such Lease and otherwise administer the Lease; and
(ii) LSI would continue to have the right to finance Upgrades to such
Products.
12.0 MISCELLANEOUS
12.1 TERM; TERMINATION.
(a) This Agreement shall remain in full force and effect for the Initial
Term. Thereafter, the term of this Agreement shall continue until ninety
(90) days after either party gives the other party written notice of its
intention to terminate this Agreement.
(b) Notwithstanding subsection (a) above, this Agreement may be terminated
at any time by mutual written agreement of both parties, or by one party
if a Default by the other party has occurred and has continued unremedied
for a period of thirty (30) days after the defaulting party has received
written notice of such Default.
12.2 ENTIRE AGREEMENT; WAIVER; MODIFICATION.
This Agreement constitutes the entire agreement between the parties with respect
to its subject matter, and supersedes all prior and contemporaneous agreements,
understandings and negotiations, whether written or oral, between the parties
with respect to such subject matter. The failure of either party to enforce any
threatened or existing breach of this Agreement shall not be deemed a waiver of
such breach at that time or any other time or of any other breach. Any
Page 18
waiver, modification or amendment of any of the provisions of this Agreement
shall only be effective if in a writing, specifying such waiver, modification or
amendment, signed by the party against which such waiver, modification or
amendment is being enforced.
12.3 NOTICES.
Notices or other communication with respect to the matters set forth in this
Agreement shall be in writing and hand delivered, sent by mail, postage prepaid,
to the respective party at the following address for such party:
To Vendor: To LSI:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Leasing Solutions, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Suite 1500
Attn: Vice President, Enterprise ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Computing Division - Sales Attn: President
FAX: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Senior Vice President and General Counsel
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address for a party as such party may designate in writing to
the other party from time to time. Notices which are (a) hand delivered shall be
deemed effective on receipt, and (b) so mailed shall be deemed effective five
(5) Business Days after being so mailed.
12.4 EXHIBITS.
Each exhibit hereto is hereby incorporated herein, and made a part hereof, by
this reference.
12.5 SURVIVAL.
Articles and Sections 2.5, 2.6, 3.3, 3.4, 4, 6.2, 6.3,7.2, 7.4, 8, 9, 10.2, 11
and 12 (other than Section 12.1) hereof shall survive the termination of this
Agreement.
12.6 GOVERNING LAW.
This Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York.
Page 19
12.7 SEVERABILITY.
This Agreement is intended to be valid and effective under applicable law, and,
to the extent permissible under applicable law, shall be construed in such a
manner as to avoid violation of such law or invalidity thereunder. If any
provision of this Agreement is held to be invalid, illegal, void or
unenforceable, all other provisions of this Agreement shall not be affected and
shall remain in full force and effect.
12.8 COUNTERPARTS.
This Agreement may be executed in counterparts, both of which shall be deemed
originals, and each of which, taken together, shall constitute one and the same
instrument.
12.9 HEADINGS.
The headings of the articles and sections of this Agreement are for convenience
of reference and shall not affect the contents or interpretation of this
Agreement.
12.10 LIMITATION OF LIABILITY; EXCLUSIVE REMEDIES.
(a) IN NO EVENT WILL EITHER PARTY HEREUNDER BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS,
BUSINESS, INVESTMENTS, GOODWILL, COMMITMENTS, REVENUE OR DATA, WHETHER IN AN
ACTION ALLEGING BREACH OF CONTRACT, TORT, PRODUCT LIABILITY, VIOLATION OF
STATUTE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
(b) Vendor's liability with respect to any Vendor Products will not exceed the
amount paid by LSI to Vendor for such Vendor Products even if any term of this
Agreement fails of its essential purpose.
12.11 DISPUTE RESOLUTION.
(a) "Dispute" means any controversy or claim between LSI and Vendor related to
this Agreement, whether based on contract, statute, tort, fraud, fraudulent
inducement, misrepresentation, or other legal or equitable theory, whenever
brought, and whether or not any employee or agent of LSI or Vendor, or any
Lessee of Vendor Products, leased by LSI, is involved in such dispute.
(b) Mediation -- Vendor and LSI agree to use good faith efforts to resolve any
Dispute promptly and fairly. If Vendor and LSI are unable to resolve a Dispute
by negotiation, both parties agree to submit it to non-binding mediation
conducted by a mutually selected mediator or, at the option of either party, by
the American Arbitration Association ("AAA").
(c) Arbitration -- If a Dispute submitted to mediation is not successfully
resolved, it shall be subject to binding arbitration under the then-current
rules and supervision of the AAA . The Federal Arbitration Act, 9 U.S.C.
Sections 1 to 16, not New York law, will govern the arbitrability of all claims.
A single arbitrator, either mutually agreeable to the parties or selected by the
AAA if the parties cannot mutually agree on such arbitrator, who is
knowledgeable in the leasing of business information and electronic data
processing systems will conduct the
Page 20
arbitration. The arbitrator's decision and award will be final and binding, and
either party may enter it in any court of competent jurisdiction. The arbitrator
will not have authority to award punitive or other non-compensatory damages to
either party. The arbitration will be held in San Jose, California if the
claimant is Vendor and in Dayton, Ohio, if the claimant is LSI. Each party will
bear its own attorneys' fees and related costs associated with the arbitration.
Vendor and LSI will pay all other costs and expenses of the arbitration as the
rules of the AAA provide.
(d) Court Proceedings -- Except as permitted in this Section 12.11, neither
party may bring a case in court with respect to a Dispute. If Vendor or LSI
disregards this restriction, files a court case and fails to dismiss it promptly
upon being notified of this provision, that party will pay the other party's
costs and expenses, including attorneys' fees, incurred after its receipt of
such notice in defending the court case. Each party retains the right to obtain
injunctive relief in court to prevent the other party's breach or continuing
breach of any of its obligations under this Agreement.
(e) Two Year Limitation -- Neither LSI nor Vendor may bring a claim or action
arising out of or related to this Agreement, including any claim of fraud or
misrepresentation, more than two years after the cause of action accrues.
(f) Substitute Products -- LSI's acceptance of refunds of the Net Purchase
Price or substitute Vendor Products under this Agreement waives all claims
relating to the non-performing Vendor Products involved.
IN WITNESS WHEREOF, the parties hereto have executed this Marketing Agreement by
their duly authorized officers as of the date first above written.
LEASING SOLUTIONS, INC. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By:__________________________ By:__________________________
Title:_______________________ Title:_______________________
By:__________________________
Title:_______________________
By:__________________________
Title:_______________________
Page 21
EXHIBIT A
FORM OF LEASE
Page 22
EXHIBIT B
VENDOR PRODUCTS
Page 23
HARDWARE
--------
MID-RANGE SYSTEMS:
S-40
3400
3500
4100
4500
LARGE SYSTEMS:
DBC1012 Model 4
3600
5100S
5100C
5100M
SOFTWARE (subject to remarketing)
---------------------------------
Product-Id Description
---------- -----------
3600 SOFTWARE
F684-1011-0000 SW;AP CHANNEL CONNECT (PER-AP)
F684-4111-0000 SW;TERADATA DBMS V1R5 AMP
F684-4211-0000 SW;TERADATA V1R5 PE SOFTWARE (QTY 2)
F684-4311-0000 SW;V1R5 AMP/3600 UPGRADE(QTY 2)
F684-4411-0000 SW;V1R5 PE/3600 UPGRADE(QTY 2)
F684-4611-0000 SW; TERADATA FastExport For AP (Per Sys)
F684-6001-0000 SW; Teradata Client for 3600 (AP License)
F684-6001-4000 SW; Teradata Client for 3600 (System License)
HOST SOFTWARE
H075-5121-0000 SW; TERADATA MANAGER 2.0 SOFTWARE
H075-5126-0000 SW; TERADATA MANAGER 2.0 SOFTWARE UPGRADE
H075-5127-0000 SW;TERADATA MGR FOR DBS(UNIX)-INITIAL
H075-5128-0000 SW;TERADATA MGR FOR DBS(UNIX) 2-6 ADD USERS
H075-5129-1000 SW;TERADATA MGR FOR DBS(UNIX)-SITE LIC
H075-8000-0000 SW; TERADATA CLIENT FOR IBM MVS
H075-8010-0000 SW: TERADATA UTILITIES FOR IBM MVS
H075-8020-0000 SW; TERADATA ITEQ FOR IBM MVS
H075-8040-0000 SW; TERADATA BTEQ FOR IBM MVS
H075-8050-0000 SW; TERADATA CICS INTERFACE FOR IBM MVS
H075-8060-0000 SW; TERADATA CLIENT FOR IBM MVS
H075-8141-0000 SW;TRANSP. SERIES/API MVS REL 2.0
H075-8146-0000 SW;TRANSP. SERIES/API VM REL 2.0
H075-8150-0000 SW; TERADATA MULTILOAD FOR IBM MVS
H075-8161-0000 SW; ▇▇▇▇▇▇▇▇ ▇▇▇▇ FASTEXPORT FOR IBM MVS
H075-8162-0000 SW; ▇▇▇▇▇▇▇▇ ▇▇▇▇ FASTEXPORT FOR IBM VM
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H075-8400-0000 SW; ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇/▇▇▇
▇▇▇▇-▇▇▇▇-▇▇▇▇ SW; ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇/▇▇
▇▇▇▇-▇▇▇▇-▇▇▇▇ SW; TERADATA PL1 PREPROCESSOR2/MVS
H075-8421-0000 SW; ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇/▇▇
ODBC SOFTWARE
F384-1009-0000 SW;ODBC DRIVER FOR TDATA DBS UPG REL. 2.0 (SINGLE PC LIC.)
▇▇▇▇-▇▇▇▇-▇▇▇▇ SW;ODBC DRIVER FOR TDATA DBS UPG REL. 2.0 (SITE LIC.)
▇▇▇▇-▇▇▇▇-▇▇▇▇ SW;ODBC DRIVER FOR TDATA DBS REL. 2.X (SINGLE PC LIC.)
▇▇▇▇-▇▇▇▇-▇▇▇▇ SW;ODBC DRIVER FOR TDATA DBS REL. 2.X (SITE LIC.)
5100 SOFTWARE
▇▇▇▇-▇▇▇▇-▇▇▇▇ SW;TDAT ASF2 (Node)
F784-1031-4000 SW;TDAT ASF2 (System)
F784-1041-0000 SW;TDAT FastExport 5100 Node
F784-1041-4000 SW;TDAT FastExport 5100 System
F784-1051-0000 SW;TDAT 5100 Channel Connect (Cnct)
F784-1051-4000 SW;TDAT 5100 Channel Connect (System)
F784-1061-0000 SW;TDAT MultiLoad 5100 Node
F784-1061-4000 SW;TDAT MultiLoad 5100 System
F784-1071-0000 SW;TDAT C Preprc2 5100 Node
F784-1071-4000 SW;TDAT C Preprc2 5100 System
F784-1081-0000 SW;TDAT Cobol Preprc2 5100 Node
F784-1081-4000 SW;TDAT Cobol Preprc2 5100 System
F784-1091-0000 SW;TDAT Client (Node)
F784-1091-4000 SW;TDAT Client (System)
TERADATA V2 5100 SOFTWARE
F784-1011-0000 TDATA V2R1.1 FOR 5100S - BASE SYSTEM (4 PROC)
F784-1021-0000 TDATA V2R1.1 FOR 5100S - ADD ON (2 PROC)
F784-1111-0000 TDATA V2R1.1 FOR 5100M - BASE SYST (1NODE+4PROC)
F784-1121-0000 TDATA V2R1.1 FOR 5100M - ADD ON (2 PROC)
F784-1131-0000 TDATA V2R1.1 FOR 5100M - ADD NODE (1NODE+4PROC)
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EXHIBIT C
LEASE PRICING
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EXHIBIT C
PRODUCTS: S-40, 3400, 3500, 4100, 4500
LEASE RATE FACTORS
(Expressed as a % of LSI's Cost)
LSI CREDIT LEASE TERM (MONTHS)
RATING 24 36 48 60
A 3.997% 2.978% 2.368% 1.991%
B+ 4.015% 2.999% 2.390% 2.014%
B 4.034% 3.019% 2.412% 2.037%
C 4.072% 3.062% 2.456% 2.084%
NOTE: Assumes transaction size > $250,000
PRODUCTS: DBC1012, 3600, 5100S/C/M
LEASE RATE FACTORS
(Expressed as a % of LSI's Cost)
LSI CREDIT LEASE TERM (MONTHS)
RATING ▇▇ ▇▇ ▇▇ ▇▇
A CALL CALL CALL CALL
B+ CALL CALL CALL CALL
B CALL CALL CALL CALL
C CALL CALL CALL CALL
NOTE: Each Transaction quoted separately
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