IBM CREDIT CORPORATION
Xxxxxxxx, XX 00000
TERM LEASE MASTER AGREEMENT
Name and Address of Lessee: Agreement No.: MC34461
DIAMOND BRANDS IBM Branch Office No.: MC3/3TU
0000 XXXXXXX XXX IBM Customer No.: 2494519
XXXXXXX XX 00000
IBM Branch Office Address:
TWIN CITIES RIVERSIDE
000 XXXXXXXXXX XXXXXX
XXXXXXXXXXX XX 00000
The Lessor pursuant to this Term Lease Master Agreement (Agreement) will be (a)
IBM Credit Corporation, or a subsidiary or affiliate thereof, (b) a partnership
in which IBM Credit Corporation is a partner, or (c) a related business
enterprise for whom IBM Credit Corporation is the agent (Lessor). The subject
matter of the lease shall be machines, field installable upgrades, feature
additions or accessories marketed by International Business Machines Corporation
(IBM) and shall be referred to as Equipment. Any lease transaction requested by
Lessee and accepted by Lessor shall be specified in a Term Lease Supplement
(Supplement). A Supplement shall refer to and incorporate by reference this
Agreement and, when signed by the parties, shall constitute the lease (Lease)
for the Equipment specified therein, additional details pertaining to a Lease
shall be specified in a Supplement. A Supplement may also specify additional
terms and conditions as well as other amounts, to be financed (Financing).
Financing may include licensed program material charges (LPM Charges) for
licensed programs marketed by IBM under the referenced IBM license agreement
(License Agreement).
1. OPTIONS. The Supplement shall designate various lease and financing
options. Option A is a Lease available only for Modifications (Paragraph 23) to
Equipment under Option A prior to enactment of the Tax Reform Act of 1986.
Option B is a Lease with a fair market purchase option at the end of the Lease.
For Equipment under Option B Prime (B), Lessor assumes for tax purposes that
Lessee is the owner. For financing LPM Charges, Option S will apply.
2. CREDIT REVIEW. For each Lease, Lessee consents to any reasonable
credit investigation and review by Lessor.
3. AGREEMENT TERM. This Agreement shall be effective when signed by both
parties and may be terminated by either party upon one month's written notice.
However, each Lease then in effect shall survive any termination of this
Agreement.
4. CHANGES. Lessor may, upon prior written notice, change the terms and
conditions of this Agreement. Any change will apply on the effective date
specified in the notice to Leases which have an Estimated Shipment Date, or
Effective Date for Additional License, one month or more after the date of
notice. By notice to Lessor in writing prior to delivery, or Effective Date for
Additional License, and within 15 days after receipt of such notice, Lessee may
terminate the Lease for an affected item. Otherwise, the change shall apply.
5. ADVANCE RENT. Lessee shall pay to Lessor, prior to Lessor's acceptance
of a Lease, Advance Rent, if specified. Advance Rent shall be refunded if Lessor
for any reason does not accept the Lease or Lessee terminates the Lease in
accordance with Paragraph 4, 12 or 15.
6. SELECTION AND USE OF EQUIPMENT, PROGRAMMING AND LICENSED PROGRAM
MATERIALS. Lessee agrees that it shall be responsible for the selection, use of,
and results obtained from, the Equipment, any programming supplied by IBM
without additional charge for use on the Equipment (Programming), licensed
program materials, and any other associated equipment, programs or services.
7. ASSIGNMENT TO LESSOR. Lessee hereby assigns, exclusively to Lessor,
Lessee's right to purchase the Equipment from. IBM. This assignment is
effective when Lessor accepts the applicable Supplement and Lessor shall then be
obligated to purchase and pay for the Equipment. Other than the obligation to
pay the purchase price, all responsibilities and limitations applicable to
Customer as defined in the referenced IBM purchase agreement in effect at the
time the Lease is accepted by Lessor (Purchase Agreement) shall apply to Lessee.
If the Equipment is subject to a volume procurement amendment to the Purchase
Agreement or to another discount offering, (a) Lessor will pay the same amount
for the Equipment that would have been payable by Lessee, and (b) Lessee well
remain responsible to IBM for any late order change charges, settlement charges,
adjustment charges or any other charges incurred under the volume procurement
amendment or other discount offering.
8. LEASE NOT CANCELABLE; LESSEE'S OBLIGATIONS ABSOLUTE: Lessee's
obligation to pay shall be absolute and unconditional and shall not be subject
to any delay, reduction, set-off, defense, counterclaim or recoupment for any
reason whatsoever, including, any failure of the Equipment, Programming or
licensed program materials or any representations by IBM. If the Equipment,
Programming or licensed program materials are unsatisfactory for any reason,
Lessee shall make any claim solely against IBM and shall, nevertheless, pay
Lessor all amounts payable under the Lease.
9. WARRANTIES. Lessor grants to Lessee the benefit of any and all
warranties made available by IBM in the Purchase Agreement. Lessor warrants
that neither Lessor nor anyone acting or claiming through Lessor, by assignment
or otherwise, will interfere with Lessee's quiet enjoyment of the use of the
Equipment so long as no event of default shall have occurred and be continuing.
EXCEPT FOR LESSOR'S WARRANTY OF QUIET ENJOYMENT, LESSOR MAKES NO WARRANTY,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
AS TO LESSOR LESSEE LEASES THE EQUIPMENT AND TAKES ANY PROGRAMMING "AS IS" IN NO
EVENT SHALL LESSOR HAVE ANY LIABILITY FOR, NOR SHALL LESSEE HAVE ANY REMEDY
AGAINST LESSOR FOR, CONSEQUENTIAL DAMAGES, ANY LOSS OF PROFITS OR SAVINGS, LOSS
OF USE, OR ANY OTHER COMMERCIAL LOSS.
10. LESSEE AUTHORIZATION. So long as Lessee is not in default under the
Lease (a) Lessee is authorized to act on Lessor's behalf concerning delivery and
installation of the Equipment, any IBM warranty service for the Equipment, and
any programming services for the Programming, and (b) Lessee shall have, solely
for these purposes, all rights Lessor may have against IBM under the Purchase
Agreement. The foregoing authorization shall not constitute any surrender of
Lessor's interest in the Equipment.
11. DELIVERY AND INSTALLATION. Lessee shall arrange with IBM for the
delivery of the Equipment and Programming and for installation of the Equipment
at the Equipment Location. Lessee shall pay any delivery and installation
charges. Lessor shall not be liable to Lessee for any delay in, or failure of,
delivery of the Equipment and Programming. Lessee shall examine the Equipment
and Programming immediately upon delivery. If the Equipment is not in good
condition or the Equipment or Programming does not correspond to IBM's
specifications, Lessee shall promptly give IBM written notice and shall provide
IBM reasonable assistance to cure the defect or discrepancy.
12. LATE DELIVERY. If the Equipment or licensed program materials are not
delivered to the Equipment Location on or before the 15th day after the
Estimated Shipment Date, Lessor may, upon written notice to Lessee, increase the
Lease Rate. Lessee may terminate the Lease for the affected item by giving
Lessor written notice prior to delivery. Otherwise, the Rent shall be adjusted
to reflect such increase.
13. RENT COMMENCEMENT DATE. The Rent Commencement Date, unless otherwise
specified in the Supplement, shall be the date payment is due IBM under the
applicable referenced agreement. Lessee shall be notified of the Rent
Commencement Date and the serial numbers of the Equipment.
14. LEASE TERM. The Lease shall be effective when signed by both parties.
The initial Term of the Lease shall expire at the end of the number of Payment
Periods, specified as "Term" in the Supplement, after the Rent Commencement
Date. However, obligations under the Lease shall continue until they have been
performed in full.
15. RATE PROTECTION. Unless modified pursuant to Paragraph 12, the Rent
shall be based on the Lease Rate specified in the Supplement or such greater
Lease Rate as may be specified by written notice to Lessee more than one month
before the Estimated Shipment Date or Effective Date for Additional License. By
notice to Lessor in writing prior to delivery, or Effective Date for Additional
License, and within 15 days after receipt of such notice, Lessee may terminate
the Lease for the affected item. Otherwise, the Rent shall be adjusted to
reflect the increase. The Unit Purchase Price and LPM Charges are subject to
change in accordance with the referenced agreements.
16. RENT. During the initial Term, Lessee shall pay Lessor, for each
Payment Period, Rent as determined in Paragraph 15. Lessee's obligation to pay
shall begin on the Rent Commencement Date. Rent will be invoiced in advance as
of the first day of each Payment Period and will be due on the day following the
last day of the Payment Period. When the Rent Commencement Date is not on the
First day of a calendar month and/or when the initial Term does not expire on
the last day of a calendar month, the applicable Rent will be prorated on the
basis of 30-day months. Advance Rent, if any, will be applied to the initial
invoice(s).
17. RENEWAL. If Lessee is not then in default under the Lease, Lessee may
renew the Lease one or more times but not beyond six years from the expiration
of the initial Term. Lessor shall offer renewal Terms of one year and may offer
longer Terms if then generally
available. For a renewal Term, upon request by Lessee, at least five months
prior to Lease expiration, Lessor shall notify Lessee, at least four months
prior to expiration, of the Rent, any changes to the Payment Period and due
dates, and of any required Purchase Option or Renewal Option Percents not
specified in the Supplement. The Rent shall be objectively determined by Lessor
by using the projected fair market rental value of the Equipment as of the
commencement of such renewal Term. However, for Option B', the Rent shall be as
specified in the Supplement. Lessee may renew for any renewal Term only by so
notifying Lessor in writing at least three months before expiration.
18. PURCHASE OF EQUIPMENT. If Lessee is not then in default under the
Lease, Lessee may, upon three months prior written notice to Lessor, purchase
Equipment upon expiration of the Lease. Under Option A or B, the purchase price
shall be objectively determined by Lessor by using the projected fair market
sales value of the Equipment as of such expiration date plus, for Equipment
under Option A, any recapture of investment tax credit and any tax due thereon.
Under Option B Price (B') the purchase price shall be an amount determined by
multiplying the Unit Purchase Price by the Purchase Option Percent for such
Equipment.
If Lessee purchases any Equipment, Lessee shall, on or before the date of
purchase, pay to Lessor the purchase price any applicable taxes, all Rent due
through the day preceding the date of purchase, any other amounts due, and the
prepayment of Financing (Paragraph 35). Lessor shall, on the date of purchase,
transfer to Lessee buy xxxx of sale, without recourse or warranty of any kind
express or implied, all of Lessor's right, title and interest in and to such
Equipment on an "As Is, Where is" basis except that Lessor shall warrant title
free and clear of all encumbrances.
19. OPTIONAL EXTENSION. If Lessee has not elected to renew or purchase,
and as long as Lessee is not in default under the Lease, the Lease will be
extended unless Lessee notifies Lessor in writing, not less than three months
prior to Lease expiration, that Lessee does not want the extension. The
extension will be under the same terms and conditions then in effect, including
Rent (but, for Options A or B, not less than fair market rental value) and will
continue until the earlier of termination by either party upon three months'
prior written notice or six years after expiration of the initial Term.
20. INSPECTION; MARKING; FINANCING STATEMENT. Upon request, Lessee shall
make the Equipment and its maintenance records available for inspection by
Lessor during Lessee's normal business hours. Lessee shall affix to the
Equipment any labels indicating ownership supplied by Lessor. Lessee shall
execute and deliver to Lessor for filing any Uniform Commercial Code financing
statements or similar documents Lessor may reasonably request.
21. EQUIPMENT USE. Lessee agrees that Equipment will be operated by
competent, qualified personnel, in accordance with applicable operating
instructions, laws and government regulations and that Equipment under Option A
will be used only for business purposes.
22. MAINTENANCE. Lessee, at its expense, shall keep the Equipment in a
suitable environment as specified by IBM and in good condition and working
order, ordinary wear and tear excepted.
23. ALTERATIONS; MODIFICATIONS; PARTS. Lessee may alter or modify the
Equipment only upon written notice to Lessor. Any non-IBM alteration is to be
removed and the Equipment restored to its normal, unaltered condition at
Lessee's expense prior to its return to
Lessor. At Lessee's option, any IBM field installable upgrade, feature addition
or accessory added to any item of Equipment (Modification) may be removed. If
removed, the Equipment is to be restored at Lessee's expense to its normal,
unmodified condition. If not removed, such Modification shall, upon return of
the Equipment, become, without charge, the property of Lessor free of all
encumbrances. Restoration will include replacement of any parts removed in
connection with the installation of an alteration or Modification. Any part
installed in connection with warranty or maintenance service shall be the
property of Lessor.
24. LEASES FOR MODIFICATIONS AND ADDITIONS. Lessor will arrange for
leasing of Modifications and Additions under terms and conditions then generally
in effect, subject to satisfactory credit review. Additions shall be machines,
or LPM Charges for licensed program materials, which are associated with the
Equipment. These Modifications and Additions must be ordered by Lessee from
IBM. Any lease for modifications shall, and any Lease for Additions may, expire
at the same time as the Lease for the Equipment. The rent shall be determined
by Lessor and specified in a Supplement. If Lessee purchases Equipment prior to
Lease expiration, Lessee shall simultaneously purchase any Modifications under
the Lease.
25. RETURN OF EQUIPMENT. Upon expiration or termination of the Lease for
any item of Equipment, or upon demand by Lessor pursuant to Xxxxxxxxx 00, Xxxxxx
shall promptly return the Equipment, freight prepaid, to a location in the
continental United States specified by Lessor. Except for Casualty Loss, Lessee
shall pay any costs and expenses incurred by Lessor to inspect and qualify the
equipment for IBM's maintenance agreement service. Any parts removed in
connection therewith shall become Lessor's property.
26. CASUALTY INSURANCE; LOSS OR DAMAGE. Lessor will maintain, at its own
expense, insurance covering loss of or damage to the Equipment (but excluding
any Modifications not subject to a Lease and any non-IBM alterations) with a
$5,000 deductible per incident. If any item of Equipment shall be lost, stolen,
destroyed or irreparably damaged for any cause whatsoever (Casualty Loss) before
the Date of Installation as defined in the Purchase Agreement, the Lease for
that item shall terminate. If any item of Equipment suffers Casualty Loss, or
shall be otherwise damaged, on or after the Date of Installation, Lessee shall
promptly inform Lessor. If Lessor determines that the item can be economically
repaired, Lessee shall place the item in good condition and working order and
Lessor will reimburse Lessee the reasonable cost of such repair, less the
deductible. If not so repairable, Lessee shall pay Lessor the lesser of $5,000
or the fair market value of the Equipment immediately prior to the Casualty
Loss. Upon Lessor's receipt of payment the Lease for that item shall terminate.
27. TAXES. Lessee shall promptly, reimburse Lessor for, or shall pay
directly if so requested by Lessor, as additional Rent, all taxes, charges, and
fees imposed or levied by any governmental body or agency upon or in connection
with the purchase, ownership, leasing, possession, use or relocation of the
Equipment or Programming or in connection with the financing of LPM Charges or
otherwise in connection with the transactions contemplated by the Lease,
excluding, however, all taxes on or measured by the net income of Lessor. Upon
request, Lessee will provide proof of payment. Any other taxes, charges and
fees relating to the licensing, possession or use of licensed program materials
will be governed by the License Agreement.
28. LESSOR'S PAYMENT. If Lessee fails to perform its obligations under
Paragraph 27 or 31 or to discharge any encumbrances created by Lessee, Lessor
shall have the right to substitute performance, in which case, Lessee shall pay
Lessor the cost thereof.
29. TAX INDEMNIFICATION (APPLIES ONLY FOR EQUIPMENT UNDER OPTIONS A OR B).
The Lease is entered into on the basis that under the Internal Revenue Code of
1986, as amended (Code), Lessor shall be entitled to (1) maximum Accelerated
Cost Recovery System (ACRS) deductions for 5-year property, and (2) deductions
for interest expense incurred to finance purchase of the Equipment. The Bulletin
"Lessor's Tax Assumptions" will be giver, to Lessee on request. Lessee
represents, warrants and covenants that at all times during the Lease:
(a) no item of Equipment will constitute "public utility property" as defined in
the Code; (b) Lessee will not make any election under the Code or take any
action, or fail to take any action, if such election, action or failure to act
would cause any item of Equipment to cease to be eligible for any ACRS
deductions or interest deductions; (c) Lessee will keep and make available to
Lessor the records required to establish the matters referred to in this
Paragraph 29; and (d) for Equipment located in a United States possession,
Lessee represents that Lessee is a tax exempt entity as defined in the Code.
Furthermore, if Lessee is a tax exempt entity, Lessee covenants that it will not
renew or extend the Lease if such action shall cause Lessor a Tax Loss as
described below.
If, as a result of any act, failure to act, misrepresentation, inaccuracy, or
breach of any warranty or covenant, or default under the Lease, by Lessee, an
affiliate of Lessee, or any person who shall obtain the use of possession of any
item of Equipment through Lessee, Lessor shall lose the right to claim or shall
suffer any disallowance or recapture of all or any portion of any ACRS
deductions or interest deductions (Tax Loss) with respect to any item of
Equipment, then, promptly upon written notice to Lessee that a Tax Loss has
occurred, Lessee shall reimburse Lessor the amount determined below.
The reimbursement shall be an amount that, in the reasonable opinion of Lessor,
shall make Lessor's after-tax rate of return and cash flows (Financial Returns),
over the term of the Lease for such item of Equipment, equal to the expected
Financial Returns that would have been otherwise available. The reimbursement
shall take into account the effects of interest, penalties and additions to tax
required to be paid by Lessor as a result of such Tax Loss and all taxes
required to be paid by Lessor as a result of any payments pursuant to this
paragraph. Financial Returns shall be Leased on economic and tax assumptions
used by Lessor in entering into the Lease.
All the rights and privileges of Lessor arising from this Paragraph 29 shall
survive the expiration or termination of the Lease.
For purposes of determining tax effects under Paragraphs 18, 27, 29 and 30, the
term "Lessor" shall include, to the extent of interests, any partner in Lessor
and any affiliated group of corporations, and each member thereof, of which
Lessor or any such partner is or shall become a member and with which Lessor or
any such partner joins in the filing of consolidated or combined returns.
30. GENERAL INDEMNITY. This Lease is a net lease. Therefore, Lessee
shall indemnify Lessor against, and hold Lessor harmless from, any and all
claims, actions, damages, obligations, liabilities and liens; and all costs and
expenses, including legal fees, incurred by Lessor in connection therewith;
arising out of the Lease including, without limitation, the purchase, ownership,
lease, licensing, possession, maintenance, condition, use or return of the
Equipment, Programming or licensed program materials; or arising by operation of
law; excluding, however, any of the foregoing which result from the sole
negligence or willful misconduct of Lessor. Lessee agrees that upon written
notice by Lessor of the assertion of any
claim, action, damage, obligation, liability or lien, Lessee shall assume full
responsibility for the defense thereof. Any payment pursuant to this paragraph
shall be of such amount as shall be necessary so that, after payment of any
taxes required to be paid thereon by Lessor, including taxes on or measured by
the net income of Lessor, the balance will equal the amount due hereunder.
Lessee's obligations under this paragraph shall not constitute a guarantee of
the residual value or useful life of any item of Equipment or a guarantee of any
debt of Lessor. The provisions of this paragraph with regard to matters arising
during the Lease shall survive the expiration or termination of the Lease.
31. LIABILITY INSURANCE. Lessee shall obtain and maintain comprehensive
general liability insurance, in an amount of $1,000,000 or more for each
occurrence, with an insurer having a "Best's Policyholders" rating of B+ or
better. The policy shall name Lessor as an additional insured as Lessor's
interests may appear and shall contain a clause requiring the insurer to give
Lessor at least one month's prior written notice of the cancellation, or any
alteration in the terms, of the policy. Lessee shall furnish to Lessor, upon
request, evidence that such insurance coverage is in effect.
32. SUBLEASE AND RELOCATION OF EQUIPMENT, ASSIGNMENT BY LESSEE. Upon
Lessor's prior written consent, which will not be unreasonably withheld, Lessee
may sublet the Equipment or relocate it from the Equipment Location. No
sublease or relocation shall relieve Lessee of its obligations under the Lease.
In no event shall Lessee remove the Equipment from the United States. Lessee
shall not assign, transfer or otherwise dispose of the Lease or Equipment, or
any interest therein, or create or suffer any xxxx, xxxx or encumbrance thereof
except those created by Lessor.
33. ASSIGNMENT BY LESSOR. Lessee acknowledges and understands that the
terms and conditions of the Lease have been fixed to enable Lessor to sell and
assign its interest or grant a security interest or interests in the Lease and
the Equipment individually or together, in whole or in part, for the purpose of
securing loans to Lessor or otherwise. If Lessee is given written notice of any
assignment, it shall promptly acknowledge receipt thereof in writing. Each such
assignee shall have all of the rights of Lessor under the Lease. Lessee shall
not assert against any such assignee any setoff, defense or counterclaim that
Lessee may have against Lessor or any other person. Lessor shall not be
relieved of its obligations hereunder as a result of any such assignment unless
Lessee expressly consents thereto.
34. FINANCING. If the Lease provides for financing of LPM Charges, Lessor
will pay such Charges directly to IBM. Any other charges due IBM under the
License Agreement shall be paid directly to IBM by Lessee. Lessee's obligation
to pay Rent shall not be affected by any discontinuance, return or destruction
of any license or licensed program materials under the License Agreement on or
after the date LPM Charges are due. If Lessee discontinues any of the licensed
program materials in accordance with the terms of the License Agreement prior to
the date LPM Charges are due, the financing of affected LPM Charges shall be
canceled.
35. FINANCING PREPAYMENT (Does Not Apply For Items of Equipment). Lessee
may terminate an item of Financing (but not an item of Equipment) by prepaying
its remaining Rent. Lessee shall provide Lessor with notice of the intended
prepayment date which shall be at least one month after the date of the notice.
Lessor may, depending on market conditions at the time, make an adjustment in
the remaining Rent to reflect such prepayment and shall advise Lessee of the
balance to be paid. If, prior to Lease Expiration, Lessee purchases the
Equipment or
if the Lease is terminated, Lessee shall at the same time prepay any related
Financing including that for programs licensed to the Equipment.
36. DELINQUENT PAYMENTS. If any amount to be paid to Lessor is not paid on
or before its due date, Lessee shall pay Lessor on demand 2% of such late
payment for each month or part thereof from the due date until the date paid or,
if less, the maximum allowed by law.
37. DEFAULT; NO WAIVER. Lessee shall be in default under the Lease upon the
occurrence of any of the following events: (a) Lessee fails to pay when due any
amount required to be paid by Lessee under the Lease and such failure shall
continue for a period of seven days after the due date; (b) Lessee fails to
perform any other provisions under the Lease or violates any of the covenants or
representations made by Lessee in the Lease, or Lessee fails to perform any of
its obligations under any other Lease entered into pursuant to this Agreement,
and such failure or breach shall continue unremedied for a period of 15 days
after written notice is received by Lessee from Lessor; (c) Lessee violates any
of the covenants or representations made by Lessee in any application for credit
or in any agreement with IBM with respect to the Equipment or licensed program
materials or fails to perform any provision in any such agreement (except the
obligation to pay the purchase price or LPM Charges); (d) Lessee makes an
assignment for the benefit of creditors, whether voluntary or involuntary, or
consents to the appointment of a trustee or receiver, or if either shall be
appointed for Lessee or for a substantial part of its property without its
consent; (e) any petition or proceeding if filed by or against Lessee under any
Federal or State bankruptcy or insolvency code or similar law; or (f) if
applicable, Lessee makes a bulk transfer subject to the provisions of the
Uniform Commercial Code.
Any failure of Lessor to require strict performance by Lessee or any waiver by
Lessor of any provision in the Lease shall not be construed as a consent or
waiver of any other breach of the same or of any other provision.
38. REMEDIES. If Lessee is in default under the Lease, Lessor shall have
the right, in its sole discretion, to exercise any one or more of the following
remedies in order to protect its interests, Reasonably expected profits and
economic benefits. Lessor may (a) declare any Lease entered into pursuant to
this Agreement to be in default; (b) terminate in whole or in part any Lease;
(c) recover from Lessee any and all amounts then due and to become due; (d) take
possession of any or all items of Equipment, wherever located, without demand or
notice, without any court order or other process of law; and (e) demand that
Lessee return any or all such items of Equipment to Lessor in accordance with
Paragraph 25 and, for each day that Lessee shall fail to return any item of
Equipment, Lessor may demand an amount equal to the Rent, prorated on the basis
of a 30-day month, in effect immediately prior to such default. Upon
repossession or return of such item or items of Equipment, Lessor shall sell,
lease or otherwise dispose of such item or items in a commercially reasonable
matter, with or without notice and on public or private bid, and apply the net
proceeds, thereof towards the amounts due under the Lease but only after
deducting (i) in the case of sale, the estimated fair market value of such item
or items as of the scheduled expiration of the Lease; or (ii) in the case of any
replacement lease, the rent due for any period beyond the scheduled expiration
of the Lease for such item or items (iii) in either case, all expenses,
including legal fees, incurred in connection therewith; and (iv) where
appropriate, any amount in accordance with Paragraph 29. Any excess net proceeds
are to be retained by Lessor. Lessor may pursue any other remedy available at
law or in equity, including, but not limited to, seeking damages, specific
performance and an injunction.
No right or remedy is exclusive of any other provided herein or permitted by law
or equity. All such rights and remedies shall be cumulative and may be enforced
concurrently or individually from time to time.
39. LESSOR'S EXPENSE. Lessee shall pay Lessor on demand all costs and
expense, including legal and collection fees, incurred by Lessor in enforcing
the terms, conditions or provisions of the Lease or in protecting Lessor's
rights and interests in the Lease and the Equipment.
40. OWNERSHIP; PERSONAL PROPERTY; LICENSED PROGRAM MATERIALS. The
Equipment under Lease is and shall be the property of Lessor. Lessee shall have
no right, title or interest therein except as set forth in the Lease. The
Equipment is, and shall at all times be and remain, personal property and shall
not become a fixture or realty. Licensed program materials are licensed and
provided by IBM directly to Lessee under the terms and conditions of the License
Agreement.
41. NOTICES; ADMINISTRATION. Service of all notices under the Lease shall
be sufficient if delivered personally or mailed to Lessee at its address
specified in the Supplement or to IBM Credit Corporation as Lessor in care of
the IBM Branch Office specified in the Supplement. Notice by mail shall be
effective when deposited in the United States mail, duly addressed and with
postage prepaid. Notices, consents and approvals from or by Lessor shall be
given by Lessor or on its behalf by IBM and all payments shall be made to IBM
until Lessor shall notify Lessee otherwise.
42. LESSEE REPRESENTATION. If the Lease includes Financing, Lessee
represents that it is (a) a corporation if any item of Equipment is located in
Ohio, Mississippi, Virginia or West Virginia, and/or (b) a business corporation
if any item of Equipment is located in Pennsylvania.
43. REVISIONS FOR PREVIOUSLY INSTALLED EQUIPMENT Equipment installed with
Lessee under an IBM lease or rental agreement may be purchased by Lessor, on the
Effective Date of Purchase (as defined in the Purchase Agreement), for lease to
Lessee under Option B or B'. For such Equipment, the Lease shall be revised as
follows:
Paragraphs 4 and 26 - replace "Estimated Shipment Date" by "Intended Effective
Date of Purchase"; replace "delivery" and "Date of Installation" by "Effective
Date of Purchase";
Paragraph 7 - add at the end of the first paragraph, "Assignment of the option
to purchase installed Equipment at the net purchase option price under an IBM
lease or rental agreement will be permitted only when Lessee submits the
Supplement in sufficient time to achieve the Intended Effective Date of
Purchase. The Effective Date of Purchase under this assignment shall be the
later of the first day of the Quotation Month or the day on which the applicable
Supplement is accepted by Lessor. If the Quotation Month expires and the
purchase of Equipment is not concluded, this assignment and Lease will be null
and void regarding any such Equipment and all rights, duties and obligations of
Lessee and IBM will remain in accordance with the provisions of the IBM
agreement under which the Equipment is currently installed.";
Paragraphs 11 and 12 - delete both paragraphs; and
Paragraph 15 - replace the entire paragraph with the following: "The Rent shall
be based on the Lease Rate specified in the Supplement or such greater Lease
Rate as may be specified by written notice to Lessee more than one month before
the Effective Date of Purchase. The Unit Purchase Price is subject to change in
accordance with the referenced Purchase Agreement.
Lessee may terminate the Lease for any item subject to an increase by giving
Lessor written notice on or before the Effective Date of Purchase."
44. APPLICABLE LAW, SEVERABILITY. The Lease shall be governed by the laws
of the State of Connecticut. If any provision shall be held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions shall
not in any way be affected or impaired.
THE ADDITIONAL TERMS AND CONDITIONS ON PAGES 2 THROUGH 4 ARE A PART OF THIS
AGREEMENT.
LESSEE ACKNOWLEDGES THAT LESSEE HAS READ THIS AGREEMENT AND ITS SUPPLEMENT,
UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS.
FURTHER, LESSEE AGREES THAT THIS AGREEMENT AND ITS SUPPLEMENT ARE THE COMPLETE
AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, SUPERSEDING ALL
PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS
BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HER
Accepted by: DIAMOND BRANDS INC
IBM Credit Corporation Lessee
BY: BY
Name and Title Name and Title
TERM LEASE SUPPLEMENT
Supp. No.: D00253180
Additional Terms and Conditions
Option Codes
B, B+, C, C+ Lease with fair market value end of lease
renewal and purchase options.
B', C' Lease with prestated end of lease purchase and
renewal options
B$, C$ Lease with one dollar ($1) end of lease
purchase option
L Lease for Used Equipment
S Financing of IBM One-Time Charges
T Financing of non-IBM One-Time Charges
PURCHASE OPTION (PURCHASE OPTION - END OF LEASE ONLY)
FM Fair market sales value, as determined by
Lessor, at end of Lease
CL Contact IBM Credit for purchase price
NA Not Applicable
$1 Purchase Price is One Dollar ($1.00)
Number Prestated Purchase Percent - Purchase price
will be the Unit Purchase Price times this
percent
MAINT. INCLUD. (MAINTENANCE INCLUDED)
Y Lease includes maintenance coverage
TERM
The initial Term starts on the Rent Commencement Date and continues for the
number of payment Periods stated under Term. If the Term has a prefix of "CO"
then the Lease is coterminous with the Lease for the Equipment with the
referenced serial number.
ESTIMATED COMMENCEMENT
For Leases, the month stated is the month the Lease must commence for Lessee to
receive the stated Lease Rate. For Financing, the date stated is the intended
start date of the Financing.
INTEREST RATE
The Interest Rate, if stated, is the Annual Percentage Rate (APR) for the Lease
or Financing. In the State of Texas the interest rate for the Lease or
Financing will not exceed the stated interest rate.
RENEWAL OF LEASES WITH PRESTATED PURCHASE OPTIONS
Lessee may renew a Lease with a prestated purchase option for a Term of one
year. The Rent will be one-half of the Prestated Purchase Percent times the
Unit Purchase Price stated in the Supplement. Renewal Rent payments will be
annual and due and payable in advance.
LEASES WITH MAINTENANCE INCLUDED
For Leases that include basic maintenance coverage, Lessor will arrange for
maintenance service on the Equipment. The coverage starts at the end of the
warranty period and ends with the Initial Term. The cost will be included in
the Rent. Coverage beyond the basic maintenance will be Lessee responsibility.
The maintenance service provider alone will be responsible for fulfilling all
contractual commitments. Lessee may finance additional maintenance coverage at
the end of the initial Term under then current terms.
LESSEE RESPONSIBILITIES FOR LEASES WITH MAINTENANCE INCLUDED
Lessee agrees, that before requesting maintenance service to ensure that:
1. operational problems have been corrected;
2. error recovery procedures have been followed;
3. failures are clearly identified and logged; and
4. Customer Problem Analysis and Resolution (CPAR) procedures have been
completed for equipment requiring maintenance under this lease.
Lessee also agrees to complete and return to IBM, a self-initialization review
form ("Form"). Lessee agrees to ensure that the Equipment location qualifies as
a qualified customer location (as determined by IBM). Lessee acknowledges
having received a copy of that Form. If Lessee has a Corporate Service Option
Attachment to the IBM Customer Agreement then Lessee agrees to perform all
"Customer" obligations under that agreement for the Equipment on a Lease that
includes maintenance.
LESSEE REPRESENTATIONS
Lessee represents that for Financing In:
1. Ohio, Maryland, Mississippi, Virginia, or West Virginia, Lessee is a
corporation as defined by the applicable state law;
2. Pennsylvania, Lessee is a business corporation as defined by Pennsylvania
laws; and
3. Alabama or Wisconsin, the Financed Items are not being purchased for
agricultural purposes.
AUTHORITY TO SIGN FINANCING STATEMENTS
Lessee authorizes Lessor or its agent as attorney-in-fact to prepare, execute in
Lessee's name and file any Uniform Commercial Code financing statements or
similar documents covering this Equipment. Lessee authorizes Lessor to fill in
serial numbers on this Supplement after execution by Lessee for the Equipment
listed on the Supplement.
BASE EXTENSIONS
For machines designated as "Base Extension", this Supplement supersedes the
prior Lease for these machines and incorporates the terms of the Lease Agreement
effective for this Supplement, including these terms with respect to Purchase of
Equipment, which may be different than the terms governing the superseded lease.
This Lease amends and supersedes the prior lease for these machines with respect
to Term, Lease Rate, Rent, Payment Period, Purchase Option Code, and Lease
Option. These changes shall become effective on the Rent Commencement Date
specified in this Supplement.
AMENDMENT TO TERM LEASE MASTER AGREEMENT
This amends the Term Lease Master Agreement referenced on page 1.
1. In the preamble in line 4 after "(IBM)", insert "to Lessee's Supplier"; In
line 9 after "programs" delete balance of the sentence.
2. Replace all subsequent occurrences of "IBM" with "Lessee's Supplier" except
in Paragraph 23, 26, 37 and 41 or where it appears as IBM Corporation or
except as it appears in this Supplement.
3. Delete all occurrences of "or Effective Date for Additional License".
4. Replace all occurrences of "Estimated Shipment Date" with "Estimate
Commencement".
5. Replace all occurrences of "License Agreement" with "license agreement".
6. Paragraph 1 - Options - delete the last sentence.
7. Paragraph 7 - Assignment to Lessor - replace lines 7 thru 16 with "the
buyers as defined in Lessee's Supplier's contract in effect at the time the
Lease is accepted by Lessor (Purchase Agreement) shall apply to Lessee."
8. Paragraph 13 - Rent Commencement Date - in line 3 replace "the date payment
is due IBM under the applicable referenced agreement" with "the date Lessee
designates on the Certificate of Acceptance".
9. Paragraph 15 - Rate Protection - replace in its entirety with the following:
The Rent shall be based on the Lease Rate and are not subject to change
provided the signed Certificate of Acceptance is received within the month
of the Estimated Commencement."
10. Paragraph 18 - Purchase of Equipment - in line 4 replace "Under Option A or
B" with "Equipment with a Purch. Option of "FM", in line 19 after
"encumbrances" insert "arising solely from claims against Lessor".
11. Paragraph 19 - Optional Extension - in line 7 replace "Option A or B" with
"Equipment with a Purch. Option of `FM'".
12. Paragraph 24 - Leases for Modification and Additions - in line 7 replace
"by Lessee from IBM" with "by Lessee's Supplier from IBM for Lessee".
13. Paragraph 34 - Financing - delete the first two sentences.
14. Delete Paragraph 43.
