EXCLUSIVE VENDOR AGREEMENT
--------------------------------------------------------------------------------
This Exclusive Vendor Agreement ("Agreement") dated the 16th day April, 2002 is
by and among Xxxxxxx Computer Resources, Inc., a Delaware corporation, ("PCR"),
Pomeroy Computer Resources Sales Company, Inc. ("Pomeroy Sales"), and Xxxxxxx
Computer Resources Operations, LLP, a Kentucky limited liability partnership
("Pomeroy LLP"), with their principal place of business at 0000 Xxxxxxxxxx Xxxx,
Xxxxxx, Xxxxxxxx 00000 (PCR, Pomeroy Sales and Pomeroy LLP also referred to
collectively as "Pomeroy"), Information Leasing Corporation, an Ohio
corporation, with its principal place of business at 0000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000 ("ILC") and Technology Integration Financial Services, a
division of ILC ("TIFS") with its principal place of business at 0000 Xxxxxxxxxx
Xxxx, Xxxxxx, Xxxxxxxx 00000 ("TIFS", together with ILC, the "Company").
RECITALS.
A. ILC and Pomeroy are parties to that certain Asset Purchase Agreement dated
as of February 27, 2002 (the "Purchase Agreement"), pursuant to which ILC
has acquired substantially all of the assets of Technology Integration
Financial Services, Inc., a Delaware corporation, including but not limited
to, the name "Technology Integration Financial Services" and the letters
"TIFS".
B. It is a condition precedent to the consummation of the transactions under
the Purchase Agreement that the Company and Xxxxxxx enter into this
Agreement.
X. Xxxxxxx desires to appoint the Company as its exclusive provider of lease
financings for goods sold by Xxxxxxx directly, or for goods financed either
through the Company or directly to any customer of Xxxxxxx.
D. The Company desires to appoint Xxxxxxx as its agent for remarketing and
reselling of the Equipment (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth,
the Company and Xxxxxxx agree as follows:
1. DEFINITIONS. As used herein:
(a) "Eligible Leases" means any lease, rental agreement or other
agreement entered into by ILC or TIFS after the date of this Agreement,
excluding Syndicated Leases pursuant to Section 3.3 hereof, of new
computers, networking equipment, and related technology equipment,
accessories and peripherals, and any other equipment sold to a lessee by
Xxxxxxx in the normal course of business, or sold to a Xxxxxxx Customer, as
hereinafter defined, by TIFS or ILC and accepted by the Company pursuant to
Section 4 hereof, which may include up to thirty percent (30%) of Soft
Costs for leases of a Rated Credit Quality and up to twenty percent (20%)
of Soft Costs for all other leases.
(b) "Equipment" means the personal property purchased by the Company
hereunder that is subject to an Eligible Lease, together with any
accessories, attachments, parts and repairs now or hereafter incorporated
in or affixed to or used in connection with any such Equipment,
1
EXCLUSIVE VENDOR AGREEMENT
and includes equipment substituted for the original Equipment leased or
sold under an Eligible Lease and Equipment that may be added to an Eligible
Lease.
(c) "Lessee" means the Lessee or Lessees under an Eligible Lease.
(d) "Soft Costs" means such items as software, consumables, supplies,
maintenance agreements, installation costs, shipping expenses, labor costs
and various other "for fee" services provided by Xxxxxxx.
(e) "Rated Credit Quality" means a Lessee that possesses a Xxxxx'x or
S&P credit rating equal to or better than a Xxxxx'x "Baa" or an S&P
"BBB+").
(f) "Xxxxxxx Customer" means any company that Xxxxxxx has engaged in a
transaction involving the sale of equipment in excess of $250,000 at any
time during the two (2) year period preceding the execution of the lease
being entered between the Company and the customer of Xxxxxxx, but
excluding the General Electric Company or Regis Company, except for lease
transactions with entities that are specifically originated by Xxxxxxx or
its employees.
2. APPOINTMENT AS PROVIDER. Subject to the terms of this Agreement, Xxxxxxx
hereby appoints the Company as its exclusive provider of lease financing of all
equipment sold by Xxxxxxx. All proposed equipment leases or financing for any
customers of Xxxxxxx shall be first offered to the Company, which shall have the
right of first refusal to accept or reject the proposed equipment financing.
Xxxxxxx shall:
(a) advise all of its employees that the Company is the exclusive
provider of lease financing for all equipment sold by Xxxxxxx;
(b) cause its employees to use their best efforts to advise the
Company of all opportunities to provide lease financing to prospective
customers;
(c) allow the Company to participate in all meetings with prospective
customers of Xxxxxxx;
(d) continue to market the benefits of TIFS to its employees and
customers as it has prior to the sale of the assets of TIFS to ILC and
market the benefits of ILC to its employees and customers; and
(e) allow for the Company to be marketed on its website and other
marketing materials and collaterals, which materials shall reflect that
Company is independent of Xxxxxxx.
2
EXCLUSIVE VENDOR AGREEMENT
Additionally, Xxxxxxx and the Company shall work together in the development and
implementation of joint leasing products and new software integration tools
(including, but not limited to, the Xxxxxxx online quoting tool) in an endeavor
to increase the percentage of leases to cash sales.
3. COMMISSION ON ELIGIBLE LEASES AND SYNDICATED LEASES.
3.1 Except as otherwise provided in Section 3.3 or agreed to in writing
by the parties to this Agreement for specific transactions, the Company agrees
to pay Xxxxxxx up to .5% of the dollar amount of all Eligible Leases funded by
the Company as a result of lease financings entered into during the first three
(3) years following the execution of this Agreement payable as follows: (a) the
amount of .375% shall be paid quarterly, in arrears during such three (3) year
period, within thirty (30) days after the end of each quarter commencing April
17, 2002, until April 16, 2005; and (b) an additional .125% may be paid on April
16, 2005 for each Eligible Lease fully funded during such calendar quarter. If
the dollar amount of all Eligible Leases funded by the Company as a result of
lease financing entered for the prior three (3) year period plus the dollar
amount of all Syndicated Leases (as hereinafter defined) for such period is less
than or equal to Three Hundred Twenty-Eight Million Dollars ($328,000,000.00),
no additional consideration shall be payable to Xxxxxxx hereunder for such
period. If the dollar amount of all Eligible Leases funded by the Company as a
result of lease financing entered during this period plus the dollar amount of
all Syndicated Leases (as hereinafter defined) for such period exceeds Three
Hundred Twenty-Eight Million Dollars ($328,000,000.00), Xxxxxxx shall receive a
payment in an amount equal to .125% of the dollar amount of all Eligible Leases
funded by the Company as a result of lease financing entered for the three (3)
year period. Such amount shall be paid within thirty (30) days after the final
accounting determination. The determination of any payment made hereunder shall
be done in accordance with the provisions of Section 3.4 hereof.
3.2 Except as otherwise provided in Section 3.3 or agreed to in writing
by the parties to this Agreement for specific transactions, the Company agrees
to pay Xxxxxxx .5% of the dollar amount of all Eligible Leases funded by the
Company as a result of lease financings entered into after April 16, 2005 until
the termination of this Agreement, which shall be payable quarterly in arrears.
The commission shall be paid within thirty (30) days after the end of each
quarter for Eligible Leases that have been funded by the Company during the
prior three (3) month period.
3.3 In the event the Company elects to syndicate (excluding, however,
any securitization transactions or joint ventures) any proposed equipment leases
or financings in excess of Five Million and 00/100 Dollars ($5,000,000.00) to a
single investor on or before execution of the lease ("Syndicated Leases"), the
Company shall pay to Xxxxxxx fifty percent (50%) of the Total Sales Proceeds
actually received by Company. "Total Sales Proceeds" means the gross syndication
proceeds received by the Company less (i) any amount funded by the Company, if
any; and (ii) any out of pocket costs, fees and expenses directly related to the
syndication including, but not limited to, sales or use taxes, legal fees,
commissions; and (iii) the Company's transferred costs of funds to carry or
hedge such financing prior to syndication. In the event the Company, in
accordance with Section 6 hereof, elects not to provide permanent funding for
any proposed equipment leases or financings submitted to the Company pursuant to
Section 2 hereof and thereafter syndicates the transaction, the Company shall
pay to Xxxxxxx fifty percent (50%) of the Total Sales Proceeds.
3
EXCLUSIVE VENDOR AGREEMENT
3.4 Within thirty (30) days after each quarterly determination made
relating to any payment under this Section 3, Company will provide Xxxxxxx with
a reconciliation of the payments to be made pursuant to Sections 3.1, 3.2 or 3.3
for such quarter. In addition, within sixty (60) days after the conclusion of
the first three (3) year period set forth in Section 3.1, Company shall provide
Xxxxxxx with a final accounting as to the items relating to the Eligible Leases,
along with any supporting documentation reasonably requested by Xxxxxxx. In the
event that the parties shall have any dispute relating to the determination of
any quarterly payment or any final payment owed incident to the final
accounting, the parties shall implement the procedures set forth in Section 3.1
of the Asset Purchase Agreement, which is incorporated herein by reference,
incident to the resolution of any dispute that may arise relating to any payment
due or owing pursuant to Sections 3.1, 3.2 or 3.3 of this Agreement.
4. PURCHASE OF EQUIPMENT. Equipment purchased by the Company from Xxxxxxx
and/or Equipment purchased by the Company from a third party for a Xxxxxxx
Customer shall be purchased subject to the terms and conditions of this
Agreement. The Company shall not be obligated to purchase any equipment from
Xxxxxxx or to subsequently lease such equipment to any customer of Xxxxxxx in
the event that Company rejects the credit of the proposed lessee. The purchase
price of any Equipment shall be the amount agreed upon by Xxxxxxx, Lessee and
ILC at the time of purchase ("Purchase Price").
5. DOCUMENTS. The Company shall pay the Purchase Price within ten (10) days
of delivery to and acceptance of the Equipment by the Lessee provided that:
(a) The Company shall have given to Xxxxxxx its credit approval of the
Lessee as evidenced by either a written notice of approval, written
purchase order, or valid Company purchase order number and;
(b) The Company shall have received the following, satisfactory to the
Company in its sole and absolute discretion:
(i) Properly executed lease, usage agreement or rental agreement
satisfactory to the Company and an application and requested
financial information;
(ii) Evidence that the Equipment has been properly installed
according to industry standards;
(iii) Originals of the Company's certificate of acceptance;
(iv) Originals of UCC financing statement(s) if required by the
Company;
(v) Originals of Xxxxxxx'x (or such other third party's) invoice
to the Company complete with all Serial Numbers;
(vi) Such additional support documents (i.e., corporate guaranty,
personal guaranty, subordination agreement, consent and waiver
by owner for real estate, etc.) or Lease documents from Lessee
as the Company may reasonably require;
4
EXCLUSIVE VENDOR AGREEMENT
(vii) Lessee's payment check for the advance rental payment(s) which
may be paid directly by Lessee to Xxxxxxx, by a credit to the
Company against payment of the Purchase Price for the
Equipment, or such other method of payment acceptable to the
Company; and
(viii) Any additional information reasonably requested by ILC.
6. LEASES. At all times during the term of this Agreement, Xxxxxxx shall
submit to the Company the names of prospective Lessees together with proposals
for the purchase of equipment by the Company and the subsequent leasing or
rental of such equipment by the Company to such prospective Lessees. Xxxxxxx
shall supply the financial data and other credit information pertaining to each
prospective Lessee which is necessary for the Company to render in its sole
discretion a fair judgment of the credit standing of such prospective Lessee.
The Company shall have the right to directly contact prospective Lessees to
obtain whatever additional credit and financial information the Company deems
necessary. The Company agrees to accept or reject each sale and leasing
proposal submitted by Xxxxxxx within three (3) working days after receipt of all
credit and financial data and other information deemed necessary by the Company
to render a fair judgment regarding the sale and leasing proposal and the
prospective Lessee. In the event the Company fails to accept or reject such
proposal within three (3) working days, the Company shall be deemed to have
rejected such proposal. For any prospective Lessee that the Company rejects,
the Company will use its best efforts to find an alternative source for its
financing and shall have five (5) business days from the date rejected to secure
such financing. After such time, Xxxxxxx shall be free to locate other third
party sources of financing for any rejected transaction; provided however,
during the term of this Agreement, neither Xxxxxxx nor any of its affiliates
shall provide any such financing to a prospective Lessee. Notwithstanding
anything contained herein, the Company shall have no obligation hereunder to
accept any prospective Lessee or enter into any Lease financing if the Company
rejects such financing.
7. APPOINTMENT AS AGENT. The Company hereby appoints Xxxxxxx as its agent
to accumulate, appraise, refurbish and remarket (re-lease or sell but not to
renew or sell in place to the then Lessee thereof), in such manner and on such
terms as detailed in the attached Asset Refurb and Remarketing Addendum, as the
Company in its sole discretion shall deem to be advisable.
8. REPRESENTATIONS AND WARRANTIES; XXXXXXX. Xxxxxxx, jointly and severally,
represents, warrants and agrees that:
(a) PCR is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the corporate
power to execute, deliver, and perform its obligations under this
Agreement;
(b) Xxxxxxx Sales is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the
corporate power to execute, deliver and perform its obligations under this
Agreement;
(c) Pomeroy LLP is a limited liability partnership duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Kentucky and has the power to execute, deliver and perform its obligations
under this Agreement;
5
EXCLUSIVE VENDOR AGREEMENT
(d) PCR, Xxxxxxx Sales and Xxxxxxx LLP are duly qualified to do
business in such states in the United States where qualification is
reasonably believed necessary for their respective business operations;
(e) The execution, delivery and performance of this Agreement and the
transactions contemplated hereby have been duly authorized by any necessary
corporate and partnership action on the part of PCR, Xxxxxxx Sales and
Xxxxxxx LLP, as applicable, enforceable against each of PCR, Xxxxxxx Sales
and Xxxxxxx LLP in accordance with its terms except as enforcement may be
limited by applicable bankruptcy, insolvency, or similar laws affecting the
rights of creditors generally;
(f) The execution, delivery and performance by PCR, Xxxxxxx Sales and
Xxxxxxx LLP of this Agreement does not violate any provision of the
articles of incorporation or bylaws of PCR or Xxxxxxx Sales, or the
partnership agreement of Xxxxxxx LLP and, except for the consent of
Deutsche Financial Services Corporation, as Administrative Agent and the
other lenders under a Credit Facilities Agreement dated June 28, 2001 which
Xxxxxxx has obtained, will not result in a material breach of or constitute
a material default under any indenture or loan agreement or any other
agreement, lease or instrument to which Xxxxxxx is a party or by which they
or their respective properties may be bound or affected;
(g) It will use its best efforts to promote the program addressed in
this Agreement; it will use its best efforts, subject to delays caused by
acts of God and events that are beyond its control, to timely comply with
all orders it receives and will use its best efforts to timely fill all
orders, software license agreements, maintenance/service agreements and
extended warranty agreements;
(h) If Xxxxxxx receives as payment from a Lessee in respect of an
Eligible Lease or other obligation arising under an Eligible Lease, Xxxxxxx
agrees to hold such monies in trust for the Company's benefit and shall
promptly forward such payment to the Company. If the Company receives any
such payment that is the Company's property and which is made payable to
Xxxxxxx, the Company may endorse Xxxxxxx'x name and deposit and negotiate
such payments for its own account;
(i) Each year within one hundred twenty (120) days of Xxxxxxx'x fiscal
year end, Xxxxxxx will provide the Company with a consolidated and
consolidating statement of financial condition as of the end of such fiscal
year and a statement of earnings and retained earnings for such fiscal
year, prepared by a certified public accountant acceptable to the Company,
or, at the Company's option, copies of Xxxxxxx'x signed income tax returns
for the same period; and
(j) WITH REGARD TO ALL TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
XXXXXXX HAS PROVIDED THE COMPANY WITH ALL DOCUMENTS RELATING TO THE LEASE
OR THE EQUIPMENT COVERED BY SUCH LEASE AND THERE HAVE BEEN NO ORAL OR
WRITTEN MODIFICATIONS TO THE LEASE, OR ANY OTHER WRITTEN AGREEMENTS
RELATING TO THE EQUIPMENT MADE BY XXXXXXX OR ITS EMPLOYEES NOT PREVIOUSLY
DISCLOSED TO THE COMPANY
6
EXCLUSIVE VENDOR AGREEMENT
PRIOR TO THE COMPANY'S EXECUTION OF THE ELIGIBLE LEASE AND OR PURCHASE OF
THE EQUIPMENT.
9. REPRESENTATIONS AND WARRANTIES OF ILC. ILC represents and warrants and
agrees that:
(a) ILC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Ohio, and has the corporate power
to execute, deliver and perform its obligations under this Agreement;
(b) ILC is duly qualified to do business in such states in the United
States where qualification is reasonably believed necessary for their
business operations;
(c) The execution, delivery and performance of this Agreement and the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of ILC enforceable against it in accordance
with its terms except as enforcement may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the rights of creditors
generally;
(d) The execution, delivery and performance by ILC of this Agreement
does not violate any provision of its articles of incorporation or bylaws
of ILC, or result in a material breach of or constitute a material default
under any indenture or loan agreement or any other agreement, lease or
instrument to which ILC is a party or by which it or its properties may be
bound or affected;
(e) It will use its best efforts to promote the program addressed in
this Agreement; it will timely review all credit applications and other
materials necessary to make determinations regarding the credit quality of
the Lessees, and will use its best efforts to provide financing for all
leases generated by Xxxxxxx that satisfy its credit criteria;
(f) If Company receives as payment any funds that are the property of
Xxxxxxx, Company agrees to hold such monies in trust for Xxxxxxx'x benefit
and shall promptly forward such payment to Xxxxxxx. If the Company receives
any such payment that is Xxxxxxx'x property but which is made payable to
Company, Xxxxxxx may endorse Company's name and deposit and negotiate such
payments for its own account; and
(g) Each year within one hundred twenty (120) days of Company's fiscal
year end, Company will provide Xxxxxxx with a statement of financial
condition as of the end of such fiscal year and a statement of earnings and
retained earnings for such fiscal year, prepared by a certified public
accountant acceptable to Xxxxxxx, or, at Xxxxxxx'x option, copies of
Company's signed income tax returns for the same period.
10. REPRESENTATIONS AND WARRANTIES; EQUIPMENT. With respect to the
Equipment sold hereunder by Xxxxxxx, Xxxxxxx warrants that:
(a) title to any Equipment purchased under this Agreement shall be
free and clear of all liens, claims and other encumbrances;
7
EXCLUSIVE VENDOR AGREEMENT
(b) all names, addresses, amounts and descriptions of Equipment
contained in the documents submitted to the Company by Xxxxxxx are true and
correct in all material respects, all signatures by Xxxxxxx are true and
correct and to the best of Xxxxxxx'x knowledge, all signatures of all other
parties thereto are true and correct;
(c) all Equipment for which Xxxxxxx shall have delivered to the
Company must include a certificate of acceptance that the Equipment shall
have been properly installed and accepted by Lessee;
(d) Xxxxxxx has and will continue to perform all of its obligations
under the warranties given by Xxxxxxx relating to the Equipment, including,
but not limited to, the successful installation, warranty service and
maintenance of the Equipment by Xxxxxxx or any agent of Xxxxxxx; and
(e) Xxxxxxx has disclosed to the Company, in writing, all warranties
and representations made to Lessee by Xxxxxxx, its employees or agents and
has disclosed in writing to Lessee that such warranties and representations
are made by Xxxxxxx alone and are not in any way made by, or attributable
to the Company.
11. XXXXXXX'X BREACH OF REPRESENTATIONS AND WARRANTIES.
(a) If (i) Xxxxxxx breaches any warranty or representation herein with
respect to an Eligible Lease entered into by the Company pursuant to this
Agreement and/or any Equipment purchased by the Company, and such breach is
not corrected within thirty (30) days of written notice thereof by Company
to Xxxxxxx, unless such breach cannot be cured within such thirty (30) day
period, in which event Xxxxxxx shall have a reasonable time beyond such
thirty (30) day period to correct such breach provided Xxxxxxx has
commenced to remedy such breach within such thirty (30) day period and
continues to diligently pursue such cure; (ii) any Lessee cancels any
Eligible Lease or any Eligible Lease is otherwise terminated as a result of
Xxxxxxx'x breach of any warranty, representation or service obligation of
Xxxxxxx therein or in any other agreement between Xxxxxxx and Lessee beyond
any cure period, or (iii) any Lessee asserts any valid defense to the
Eligible Lease; at the sole discretion of the Company, Xxxxxxx shall
repurchase such Eligible Lease and/or Equipment and Soft Costs from the
Company on demand for the balance of the remaining scheduled payments due
under the Eligible Lease including any past due rental payments that become
due and payable after Lessee notifies Xxxxxxx of a default. Upon Xxxxxxx'x
repurchase of the Eligible Lease and/or Equipment and Soft Costs, the
Company will reconvey all of its rights, title and interest in and to the
Eligible Lease and/or Equipment, software and services to Xxxxxxx, free,
clear and unencumbered of all liens created by the Company or arising as a
result of claims against the Company not related to the Eligible Lease.
Xxxxxxx'x repurchase obligations are not contingent upon Xxxxxxx recovering
the Equipment from Lessee or commissions or other fees paid to its sales
agents, unless Xxxxxxx'x inability to recover the Equipment is directly
caused by the actions of the Company.
(b) Xxxxxxx agrees to reimburse the Company for any and all damages
and costs, including reasonable attorneys' fees, which the Company may
sustain or incur because of any
8
EXCLUSIVE VENDOR AGREEMENT
breach of any representation or warranty herein or under any agreement with
Lessee. Xxxxxxx shall not be liable to Company for any indirect,
consequential, incidental, exemplary or special damages (including damages
for loss or business profits, business interruption, loss of business
information or data, or any failure to realize any particular savings
(regardless of the legal form or basis for such damages), whether based on
tort, contract, strict liability or other theories of recovery, arising out
of this Agreement, including the performance or breach thereof, any
person's use, or inability to use, the Equipment.
12. REPLACEMENT SERVICER. In the event that Xxxxxxx fails to perform its
obligations under this Agreement, or under any other agreements made with any of
the Lessees, due to Xxxxxxx'x insolvency, bankruptcy (whether voluntary or
involuntary) or other material degradation of its financial condition, the
Company shall have the right to obtain an alternate provider of the services
that are described in any other agreements in order to protect the Company's
interests under the lease.
13. SERVICE AGREEMENT REBATE. In the event of an event of default by Lessee
under the lease ("Lessee Default"), the Company shall first provide reasonable
notification to Xxxxxxx of such Lessee Default. In the event a Lessee is ninety
(90) days past due under its lease, Xxxxxxx shall use its best efforts after
such notification to assist the Company in curing the Lessee Default, provided,
however Xxxxxxx shall not be obligated to pay any past due rental payments to
remedy the Lessee's Default. In the event that Company is able to re-lease the
Equipment to another third party lessee, Xxxxxxx agrees to extend to such third
party lessee maintenance/service agreements for extended warranty agreements
equal to the undelivered or unfulfilled maintenance/service agreements that were
originally financed by the Lessee of the Equipment that breached the lease. In
the event the Company is unable to re-lease the Equipment to another third party
lessee, Xxxxxxx shall pay to the Company a rebate for all undelivered or
unfulfilled maintenance/service agreements or extended warranty agreements, that
were originally financed by owner of the Equipment ("Service Agreement Rebate").
The Service Agreement Rebate shall be equal to the original cost of the
maintenance/service agreements or extended warranty agreements as a percentage
of the total Equipment cost paid by the Company to Xxxxxxx multiplied by the
remaining Lease payments beginning with the first day of the next calendar month
after date of the notice to attempt to remedy the Lessee's Default. The Service
Agreement Rebate Amount shall be deducted from any commissions payable to
Xxxxxxx pursuant to Section 3.1, 3.2 or 3.3 of this Agreement.
14. ASSIGNMENT OF AGREEMENT. Xxxxxxx may not assign this Agreement nor any
of its rights under this Agreement without the Company's prior written consent.
Each Xxxxxxx entity agrees that it shall not sell all or substantially all of
its assets, in one transaction or a series of transactions, unless the acquiror
agrees to assume the obligations of Xxxxxxx under this Agreement. The Company
may not assign this Agreement nor any of its rights under this Agreement without
Xxxxxxx'x prior written consent. Company agrees that it shall not sell all or
substantially all of its assets, in one transaction or a series of transactions,
unless the acquiror agrees to assume the obligations of Company under this
Agreement.
15. DEFAULT.
(a) The occurrence of one or more of the following events will
constitute Events of Default under this Agreement:
9
EXCLUSIVE VENDOR AGREEMENT
(i) Xxxxxxx'x breach of or failure to perform any of its obligations
under this Agreement beyond any applicable cure period;
(ii) Xxxxxxx'x insolvency or dissolution, institution by, on behalf of
or against Xxxxxxx of bankruptcy, reorganization, receivership,
conservatorship or insolvency proceedings, Xxxxxxx'x making an
assignment for the benefit of creditors, or Xxxxxxx'x ceasing to
do business as a going concern;
(iii) Company's breach of or failure to perform any of its obligations
under this Agreement beyond an applicable cure period; or
(iv) Company's insolvency or dissolution, institution by, on behalf
of, or against Company in bankruptcy, reorganization,
receivership, conservatorship or insolvency proceedings,
Company's making an assignment for the benefit of creditors, or
Company's ceasing to do business as a going concern.
(b) From and after the occurrence of any Event of Default, the
non-defaulting party may do either or both of the following:
(i) immediately terminate this Agreement, by providing written notice
to the breaching party; or
(ii) exercise any other rights it has under this Agreement, the
Uniform Commercial Code or any other law.
Except as otherwise provided herein, Xxxxxxx or Company, as applicable, will be
liable for all costs and expenses incurred by the non-defaulting party because
of the occurrence of an Event of Default by a defaulting party, including
repossession costs, court costs and attorneys' fees as well as any other damages
incurred by the non-defaulting party as a result of claims by Lessee or other
third parties arising out of or otherwise related to Xxxxxxx'x or Company's
breach of this Agreement.
16. MISCELLANEOUS. Xxxxxxx waives notice of acceptance hereof. The Company
makes no warranties, express or implied, regarding Xxxxxxx'x treatment of this
Agreement for income tax purposes. The Company's knowledge at any time of any
breach of or non-compliance with any of the provisions of this Agreement shall
not constitute any waiver by the Company. Except for certain supplemental and
supporting documents which may be required by the Company, this Agreement and
the Addenda constitute the entire agreement between the parties and any change
or modification to this Agreement must be in writing and signed by the parties.
Xxxxxxx agrees that the Company may directly provide lease applicants with any
written notices required by the Equal Credit Opportunity Act or other law.
17. LAW. This Agreement shall be deemed to have been made in and shall be
construed and governed in accordance with the laws of the State of Ohio. The
parties hereto (i) designate the United States District Court for the Southern
District of Ohio, Western Division, and the Xxxxxxxx County, Ohio Court of
Common Pleas as forums where all matters pertaining to this Agreement may be
adjudicated, and (ii) by the foregoing designation, consent to the jurisdiction
and venue of such courts
10
EXCLUSIVE VENDOR AGREEMENT
for the purpose of adjudicating all matters pertaining to this Agreement.
Xxxxxxx waives personal service of all process upon it and consents that service
of process may be made by mail or messenger directed to it at its address set
forth above and that service so made shall be deemed to be completed upon the
earlier of actual receipt or three (3) days after the same shall have been
posted to Xxxxxxx'x said address. Nothing herein contained shall affect the
Company's right to serve legal process in any other manner permitted by law or
to bring any suit, action or proceeding against Xxxxxxx or its property in the
courts of any other jurisdiction.
THE PARTIES TO THIS AGREEMENT HEREBY WAIVE ANY AND ALL RIGHT TO A JURY TRIAL IN
ANY ACTION ARISING OUT OF OR OTHERWISE RELATED TO THIS AGREEMENT AND/OR RELATED
DOCUMENTS, THE RELATIONSHIP BETWEEN THE COMPANY AND XXXXXXX, OR THE TRANSACTIONS
CONTEMPLATED HEREUNDER.
18. TERM. The rights and obligations under this Agreement shall commence on
April 17, 2002 (the "Effective Date") and shall continue for a period of seven
(7) years. Thereafter, this Agreement shall be automatically renewed for
consecutive one (1) year periods until terminated by either party providing the
other party with thirty (30) days prior written notice of termination.
Notwithstanding such termination, the provisions hereof shall continue in force
as to all Eligible Leases entered into by the Company prior to termination.
19. ENVIRONMENTAL REMEDIATION. The parties agree that Xxxxxxx has not been
supplied with any information of any kind whatsoever that gives it notice of any
environmental issues concerning the Equipment. The Company shall have no
obligation to conduct any environmental remediation of or to the Equipment, or
to the Company premises. Further, the Company assumes no ownership or control
of any property that contains environmentally-related liabilities connected to
the Equipment. It is the sole obligation of Xxxxxxx to immediately notify the
Company, in writing, of any environmental defect or issue that is known, or
becomes known to it, from the date of this Agreement until such time as it is
terminated hereunder.
20. COSTS AND EXPENSES. Except as otherwise set forth herein, Xxxxxxx and
the Company agree to pay their own out-of-pocket expenses incurred in connection
with all other services rendered hereunder, which will not be deducted from rent
or sale proceeds.
21. SUCCESSORS AND ASSIGNS. Each of the parties hereto, for themselves,
respective successors, and assigns, hereby covenants and agrees to execute,
acknowledge, and deliver or cause to be executed, and assurances, and to perform
and do all such further acts and things that may be necessary or desirable to
carry out the purposes of this Agreement.
11
EXCLUSIVE VENDOR AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year set forth above.
XXXXXXX COMPUTER RESOURCES, INC.
By: s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Chief Financial Officer
XXXXXXX RESOURCES SALES COMPANY, INC.
By: s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Secretary
XXXXXXX COMPUTER RESOURCES
OPERATIONS, LLP
BY: XXXXXXX COMPUTER RESOURCES INC.,
PARTNER
By: s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Chief Financial Officer
INFORMATION LEASING CORPORATION
By: s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Title: President
12
