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EXHIBIT 10.32
IBM CREDIT CORPORATION Xxxxxxxx, XX 00000
TERM LEASE MASTER AGREEMENT
NAME AND ADDRESS OF LESSEE: AGREEMENT NO.:
ISIS 2000 LP
2001 XXXXX ST. BRANCH OFFICE NO.: YQ4
XXXXXX, XX 00000
CUSTOMER NO.:
BRANCH OFFICE ADDRESS: 0000 XXX XXXXXXX
XXXXXX, XX 00000-0000
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 consent to any reasonably
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 be
obligated to purchase and pay for the Equipment. Other than the obligation to
pay the purchase price, all responsibilities and limitations applicable to
Customer as defined in the referenced IBM purchase agreement in effect at the
time the Lease is accepted by Lessor (Purchase Agreement) shall apply to
Lessee.
If the Equipment is subject to a volume procurement amendment to the
Purchase Agreement or to another discount offering, (a) Lessor will pay the
same amount for the Equipment that would have been payable by Lessee, and (b)
Lessee will remain responsible to IBM for any late order change charges,
settlement charges, adjustment charges or any other charges incurred under the
volume procurement amendment or other discount offering.
8. LEASE NOT CANCELLABLE; LESSEE'S OBLIGATIONS ABSOLUTE. Lessee's
obligation to pay shall be absolute and unconditional and shall not be subject
to any delay, reduction, set-off, defense, counterclaim or recoupment for any
reason whatsoever, including any failure of the Equipment, Programming or
licensed program materials or any representations by IBM. If the Equipment,
Programming or licensed program materials are unsatisfactory for any reason,
Lessee shall make any claim solely against IBM and shall, nevertheless, pay
Lessor all amounts payable under the Lease.
9. WARRANTIES. Lessor grants to Lessee the benefit of any and all
warranties made available by IBM in the Purchase Agreement. Lessor warrants
that neither Lessor nor anyone acting or claiming through Lessor, by assignment
or otherwise, will interfere with Lessee's quiet enjoyment of the use of the
Equipment so long as no event of default shall have occurred and be continuing.
EXCEPT FOR LESSOR'S WARRANTY OF QUIET ENJOYMENT, LESSOR MAKES NO WARRANTY,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
AS TO LESSOR, LESSEE LEASES THE EQUIPMENT AND TAKES
THE ADDITIONAL TERMS AND CONDITIONS ON PAGES 2 THROUGH 4 ARE PART OF THIS
AGREEMENT
LESSEE ACKNOWLEDGES THAT LESSEE HAS READ THE 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 THEREOF.
[ ] INITIAL IF AGREEMENT COVERAGE PAGE IS ATTACHED.
ACCEPTED BY:
IBM CREDIT CORPORATION ISIS 2000 LP
---------------------------------------------
Customer
For or as Lessor:
By: By: /s/ XXXX XXXXXX
--------------------------------------- ------------------------------------------
Authorized Signature Authorized Signature
Xxxx Xxxxxx 5/3/96
------------------------------------------ ----------------------------------------------
Name (Type or Print) Date Name (Type or Print) Date
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ANY PROGRAMMING "AS IS". IN NO EVENT SHALL LESSOR HAVE ANY LIABILITY FOR, NOR
SHALL LESSEE HAVE ANY REMEDY AGAINST LESSOR FOR, CONSEQUENTIAL DAMAGES, ANY
LOSS OF PROFITS OR SAVINGS, LOSS OF USE, OR ANY OTHER COMMERCIAL LOSS.
10. LESSEE AUTHORIZATION. So long as Lessee is not in default under the
Lease (a) Lessee is authorized to act on Lessor's behalf concerning delivery and
installation of the Equipment, any IBM warranty service for the Equipment, and
any programming services for the Programming, 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 Prime (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 by 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
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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 by any cause whatsoever (Casualty Loss) before
the Date of Installation as defined in the Purchase Agreement, the Lease for
that item shall terminate. If any item of Equipment suffers Casualty Loss, or
shall be otherwise damaged, on or after the Date of Installation, Lessee shall
promptly inform Lessor. If Lessor determines that the item can be economically
repaired, Lessee shall place the item in good condition and working order and
Lessor will reimburse Lessee the reasonable cost of such repair, less the
deductible. If not so repairable, Lessee shall pay Lessor the lesser of $5,000
or the fair market value of the Equipment immediately prior to the Casualty
Loss. Upon Lessor's receipt of payment the Lease for that item shall terminate.
27. TAXES. Lessee shall promptly reimburse Lessor for, or shall pay directly
if so requested by Lessor, as additional Rent, all taxes, charges, and fees
imposed or levied by any governmental body or agency upon or in connection with
the purchase, ownership leasing, possession, use or relocation of the Equipment
or Programming or in connection with the financing of LPM Charges or otherwise
in connection with the transactions contemplated by the Lease, excluding,
however, all taxes on or measured by the net income of Lessor. Upon request,
Lessee will provide proof of payment. Any other taxes, charges and fees relating
to the licensing, possession or use of licensed program materials will be
governed by the License Agreement.
28. LESSOR'S PAYMENT. If Lessee fails to perform its obligations under
Paragraph 27 or 31 or to discharge any encumbrances created by Lessee, Lessor
shall have the right to substitute performance, in which case, Lessee shall pay
Lessor the cost thereof.
29. TAX INDEMNIFICATION (APPLIES ONLY FOR EQUIPMENT UNDER OPTIONS A OR B).
The Lease is entered into on the basis that under the Internal Revenue Code of
1985, as amended (Code), Lessor shall be entitled to (1) maximum Accelerated
Cost Recovery System (ACRS) deductions for 5-year property and (2) deductions
for interest expense incurred to finance purchase of the Equipment. The
Bulletin "Lessor's Tax Assumptions" will be given to Lessee on request.
Lessee represents, warrants and covenants that at all times during the Lease:
(a) no item of Equipment will constitute "public utility property" as
defined in the Code;
(b) Lessee will not make any election under the Code or take any action,
or fail to take any action, if such election, action or failure to act would
cause any item of Equipment to cease to be eligible for any ACRS deductions or
interest deductions;
(c) Lessee will keep and make available to Lessor the records required
to establish the matters referred to in this Paragraph 29; and
(d) for Equipment located in a United States possession, Lessee
represents that Lessee is a tax exempt entity as defined in the Code.
Furthermore, if Lessee is a tax exempt 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 any interest, penalties
and additions to tax required to be paid by Lessor as a result of such Tax Loss
and all taxes required to be paid by Lessor as a result of any payments pursuant
to this paragraph. Financial Returns shall be based on economic and tax
assumptions used by Lessor in entering into the Lease.
All the rights and privileges of Lessor arising from this Paragraph 29 shall
survive the expiration or termination of the Lease.
For purposes of determining tax effects under Paragraphs 18, 27, 29 and 30,
the term "Lessor" shall include, to the extent of interests, any partner in
Lessor and any affiliated group of corporations, and each member thereof, of
which Lessor or any such partner is or shall become a member and with which
Lessor or any such partner joins in the filing of consolidated or combined
returns.
30. GENERAL INDEMNITY. This Lease is a net lease. Therefore, Lessee shall
indemnify Lessor against, and hold Lessor harmless from, any and all claims,
actions, damages, obligations, liabilities and liens; and all costs and
expenses, including legal fees, incurred by Lessor in connection therewith;
arising out of the Lease including, without limitation, the purchase,
ownership, lease, licensing, possession, maintenance, condition, use or return
of the Equipment. Programming or licensed program materials; or arising by
operation of law; excluding, however, any of the foregoing which result from
the sole negligence or willful misconduct of Lessor. Lessee agrees that upon
written notice by Lessor of the assertion of any claim, action, damage,
obligation, liability or lien, Lessee shall assume full responsibility for the
defense thereof. Any payment pursuant to this paragraph shall be of such
amount as shall be necessary so that, after payment of any taxes required to be
paid thereon by Lessor, including taxes on or measured by the net income of
Lessor, the balance will equal the amount due hereunder. Lessee's obligations
under this paragraph shall not constitute a guarantee of the residual value or
useful life of any item of Equipment or a guarantee of any debt of Lessor. The
provisions of this paragraph with regard to matters arising during the Lease
shall survive the expiration or termination of the Lease.
31. LIABILITY INSURANCE. Lessee shall obtain and maintain comprehensive
general liability insurance, in an amount of $1,000,000 or more for each
occurrence, with an insurer having a "Best's Policyholders" rating of B+ or
better. The policy shall name Lessor as an additional insured as Lessor's
interests may appear and shall contain a clause requiring the insurer to give
Lessor at least one month's prior written notice of the cancellation, or any
alteration in the terms, of the policy. Lessee shall furnish to Lessor, upon
request, evidence that such insurance coverage is in effect.
32. SUBLEASE AND RELOCATION OF EQUIPMENT; ASSIGNMENT BY LESSEE. Upon
Lessor's prior written consent, which will not be unreasonably withheld, Lessee
may sublet the Equipment or relocate it from the Equipment Location. No
sublease or relocation shall relieve Lessee of its obligations under the Lease.
In no event shall Lessee remove the Equipment from the United States. Lessee
shall not assign, transfer or otherwise dispose of the Lease or Equipment, or
any interest therein, or create or suffer any 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
cancelled.
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35. FINANCING PREPAYMENT. (Does Not Apply For Items or 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, pro-rated on the basis
of a 30-day month, in effect immediately prior to such default. Upon
repossession or return of such item or items of Equipment, lessor shall sell,
lease or otherwise dispose of such item or items in a commercially reasonable
manner, with or without notice and on public or private bid, and apply the net
proceeds thereof towards the amounts due under the Lease but only after
deducting (i) in the case of sale, the estimated fair market value of such item
or items as of the scheduled expiration of the Lease; or (ii) in the case of any
replacement lease, the rent due for any period beyond the scheduled expiration
of the Lease for such item or items (iii) in either case, all expenses,
including legal fees, incurred in connection therewith; and (iv) where
appropriate, any amount in accordance with Paragraph 29. Any excess net proceeds
are to be retained by Lessor. Lessor may pursue any other remedy available at
law or in equity, including, but not limited to, seeking damages, specific
performances 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. Licenses 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.
5
000 Xxxxxx Xxxxx
IBM CREDIT CORPORATION Xxxxxxxx, XX 00000
203/973-5100
--------------------------------------------------------------------------------
ADDENDUM TO TERM LEASE MASTER AGREEMENT
Enterprise No. 9893301 Term Lease Master Agreement No. See Attached
------------
Customer No. 9895083 Addendum No. I0410496
Lessor and ISIS 2000 LP (Lessee) agree that the Term Lease Master Agreement
between the parties is hereby modified as follows:
Paragraph 12 -- Later Delivery -- in line 3 replace "15th" with "30th".
-- in line 3 replace "upon" with "by 5 business days prior". After the
second sentence, insert "In the event delivery takes place prior to the
effective date specified in the notice, the increase will not apply."
Paragraph 17 -- Renewal -- in lines 5 and 6 delete the phrase "For a
renewal Term, upon request by Lessee, at least five months prior to
Lease expiration,".
-- in line 7 replace "four" with "two".
-- in line 15 replace "three months" with "one month".
Paragraph 18 -- Purchase Equipment -- in line 2 replace "three months"
with "one month".
Paragraph 19 -- Optional Extension -- in line 4 replace "three months"
with "one month".
-- in line 9 replace "three months" with "one month's".
Paragraph 37 -- Default; No Waiver -- in line 11, after "Lessor"
insert ", however, if the nature of the breach is such that it cannot
reasonably be cured within such fifteen (15) day period, and Lessee
commences the cure within such period and diligently pursues it
thereafter, the time period in which to cure the breach shall be
extended for so long as Lessor consents (which will not be unreasonably
withheld)".
Paragraph 38 -- Remedies -- in line 2 insert after "right," "during the
continuance thereof,".
-------------------------------------------------------------------------------
NO CHANGES TO THIS ADDENDUM ARE AUTHORIZED
Addendum No. I0410496
6
IBM Credit Corporation
_______________________________________________________________________________
Paragraph 39 - Lessor's Expense - replace the entire paragraph with:
"Lessee or Lessor (as the case may be) shall pay the other party on
demand all reasonable costs and expenses, including reasonable legal
and collection fees, incurred by the other party in enforcing the
terms, conditions or provisions of the lease to be performed by the
non-performing party or in protecting said other party's rights and
interests in this lease and the Equipment."
Paragraph 44 - Applicable Law; Severability - in line 2 replace "State
of Connecticut" with "State of Texas".
Prepared by: M XXXXXX
Xxxxx 8, 1996
Accepted by:
IBM Credit Corporation ISIS 2000 LP
For or as Lessor:
by by /s/ XXXX X. XXXXXX
-------------------------- ----------------------------
Authorized Signature Authorized Signature
Xxxx X. Xxxxxx 5/3/96
-------------------------- ----------------------------
Name (Type or Print) Date Name (Type or Print) Date
I0410496/BP5
This Addendum is valid if accepted by ISIS 2000 LP and IBM Credit Corporation
no later than May 20, 1996.
_____________________________________________________________________________
NO CHANGES TO THIS ADDENDUM ARE AUTHORIZED
Addendum No. I0410496
7
ISIS 2000, L.P. HARDWARE EQUIP LEASE
TERM LEASE SUPPLEMENT
DATE PREPARED: 05/01/96 Page 1 of 4
Customer No.: 8918194 SUPPLEMENT NUMBER: C00261220 PURCHASE AGREEMENT REF.: HQ12291
CUSTOMER NAME AND ADDRESS INSTALLED AT LOCATION IBM BRANCH OFFICE NO.: MRZ
ISIS 2000 LP ISIS 2000 LP IBM BRANCH OFFICE ADDRESS
2001 XXXXX XX 0000 XXXXX XX XXXXXX XX LEASE AGREEMENT NO.: 8918194
SUITE 2300 SUITE 2300 1605 LBJ FREEWAY ASSOCIATED SUPPLEMENT NOS.:
XXXXXX, XX 00000-0000 XXXXXX, XX 00000-0000 XXXXXX, XX 00000-0000
AMENDMENT NOS.:
ADDENDUM NOS.:
QUOTE LETTER NO.: Q0126552907
CUSTOMER REFERENCE:
Location/ Leased or Financed Item: Plant Order (*) (*)
Line Lessor Installed Type Model/Feature or Serial (*) Purch. Maint. (*)
No. Customer No. State Description MES No. No. Option Option Includ. Term
----------------------------------------------------------------------------------------------------------------------------
001 8918194/ TX 0483-002 5DJPRK 2626074 C$ $1 Y 36
4688023 CCS CUSTOMIZATION SERVICES
002 8918194/ TX 0483-002 5DJPRK 2626073 C$ $1 Y 36
4688023 CCS CUSTOMIZATION SERVICES
003 8918194/ TX 3153-BG3 C$ $1 Y 36
4688023 GREEN (232 XXXX, 0000XX)
004 8918194/ TX 3153-BG3 C$ $1 Y 36
4688023 GREEN (232 XXXX, 0000XX)
005 8918194/ TX 3590-B11 5DJPPV 12404 C$ $1 Y 36
4688023 'LIC' TAPE DRIVE WITH RACL
----------------------------------------------------------------------------------------------------------------------------
Supplier Name Supplier Customer No. Security Deposit
----------------------------------------------------------------------------------------------------------------------------
(*) See page 4 for explanations, definitions and additional terms.
FOR THESE LEASE RATES TO BE VALID, THIS SUPPLEMENT MUST BE SIGNED AND RECEIVED
BY LESSOR BY: 05/30/96.
Unit Purchase Lease (*)Estimated (*)
Line Price/ Rate Commencement Interest
No. Amount Financed $/1000 Rent /Release Date Rate
---------------------------------------------------------------------------------------------
001 540.00 30.38 16 04/96 5.91
002 265.00 30.38 8 04/96 5.91
003 461.60 30.38 14 04/96 5.91
004 461.60 30.38 14 04/96 5.91
005 36,463.50 33.29 1,214 04/96 5.91
---------------------------------------------------------------------------------------------
Total Amount Interim Total Rent Payment Period
Financed Rent (this page) MONTHLY IN ARREARS
(this page) Applies? Taxes May Apply ---------------------------
Rent Commencement Date
38,191.70 NO 1,266
---------------------------------------------------------------------------------------------
Total Amount Total Rent
Financed (all pages)
(all pages) Taxes May Apply
610,446.48 20,269
--------------- ---------------
THE LEASE AGREEMENT REFERENCED ABOVE AND THIS SUPPLEMENT CONTAIN THE TERMS FOR
THIS TRANSACTION. LESSEE AUTHORIZES LESSOR TO CHANGE THE AMOUNT FINANCED AND
THE RENT IF LESSEE'S SUPPLIER CHANGES LESSEE'S PURCHASE PRICE. LESSEE FURTHER
AUTHORIZES LESSOR TO INSERT SERIAL NUMBERS ON THIS SUPPLEMENT WITHOUT FURTHER
AUTHORIZATION FROM LESSEE. BY SIGNING BELOW, BOTH PARTIES ACKNOWLEDGE THAT THEY
HAVE READ AND UNDERSTAND THE AGREEMENTS AND AGREE TO THE TERMS. FURTHER LESSEE
AGREES THAT THESE TERMS SUPERSEDE ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR
WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN BOTH PARTIES RELATING TO THE
ITEMS LISTED HEREIN. DELIVERY OF AN EXECUTED COUNTERPART OF THIS SUPPLEMENT BY
FACSIMILE OR ANY OTHER RELIABLE MEANS SHALL BE DEEMED TO BE AS EFFECTIVE FOR
ALL PURPOSES AS DELIVERY OF THE MANUALLY EXECUTED COUNTERPART. THE LESSEE
UNDERSTANDS THAT LESSOR MAY MAINTAIN A COPY OF THIS SUPPLEMENT IN ELECTRONIC
FORM AND AGREES THAT A COPY PRODUCED FROM THE ELECTRONIC FORM OR BY ANY
RELIABLE MEANS (FOR EXAMPLE, PHOTOCOPY OR FACSIMILE) SHALL IN ALL RESPECTS BE
CONSIDERED EQUIVALENT TO AN ORIGINAL.
Accepted by: ISIS 2000 LP Initial below
IBM CREDIT CORPORATION --------------------------- to request an
Lessee IBM maintenance
For or as Lessor: agreement on
IBM Leased items
By: By: /s/ XXXX XXXXXX
------------------------ ------------------------
Authorized Signature Authorized Signature
/s/ Xxxx Xxxxxx 5/3/96
--------------------------- ---------------------------
Name (Type or Print) Date Name (Type or Print) Date ------------
Z125-3318-17 (10/85)
8
ISIS 2000, L.P. HARDWARE EQUIP LEASE
TERM LEASE SUPPLEMENT
DATE PREPARED: 05/01/96 Page 2 of 4
Customer No.: 8918194 SUPPLEMENT NUMBER: C00261220 PURCHASE AGREEMENT REF.: HQ12291
CUSTOMER NAME AND ADDRESS INSTALLED AT LOCATION IBM BRANCH OFFICE NO.: MRZ
ISIS 2000 LP ISIS 2000 LP IBM BRANCH OFFICE ADDRESS
2001 XXXXX XX 0000 XXXXX XX XXXXXX XX LEASE AGREEMENT NO.: 8918194
SUITE 2300 SUITE 2300 1605 LBJ FREEWAY ASSOCIATED SUPPLEMENT NOS.:
XXXXXX, XX 00000-0000 XXXXXX, XX 00000-0000 XXXXXX, XX 00000-0000
AMENDMENT NOS.:
ADDENDUM NOS.:
QUOTE LETTER NO.: Q0126552907
CUSTOMER REFERENCE:
Location/ Leased or Financed Item: Plant Order (*) (*)
Line Lessor Installed Type Model/Feature or Serial (*) Purch. Maint. (*)
No. Customer No. State Description MES No. No. Option Option Includ. Term
----------------------------------------------------------------------------------------------------------------------------
008 8918194/ TX 5692-AIX 5DJPMG B14TL S NA 36
4688023 SYSTEM PROGRAM ORDER
007 8918194/ TX 5692-AIX 5DJPRW B15NK S NA 36
4688023 SYSTEM PROGRAM ORDER
008 8918194/ TX 5692-AIX 5DJPSJ B15NL S NA 36
4688023 SYSTEM PROGRAM ORDER
009 8918194/ TX 5696-899 5DJPMC X0000 X XX 00
0000000 XXX PAIDE V2.AG5 AND BELOW
010 8918194/ TX 5696-800 5DJPMD X0000 X XX 00
0000000 XXX PTX V 2.1 G5 AND BELOW
011 8918194/ TX 5696-933 5DJPRV X0000 X XX 00
0000000 XXX HACMP V4.1 FOR AIX
012 8918194/ TX 5696-919 5DJPSG X0000 X XX 00
0000000 XXX HYPERTEXT V 1.1 FOR AIX
013 8918194/ TX 5696-933 5DJPSH X0000 X XX 00
0000000 XXX HCAMP V4.1 FOR AIX
014 8918194/ TX 5765-393 5DJPMB A61BP S NA 36
4688023 AIX VERSION 4.1.4
015 8918194/ TX 5765-423 5DJPMF A61BQ S NA 36
4688023 IBM C FOR AIX VER 3
016 8918194/ TX 5765-393 5DJPRS A62WP S NA 36
4688023 AIX VERSION 4.1.4
017 8918194/ TX 5765-423 5DJPRT A62WQ S NA 36
4688023 IBM C FOR AIX VER 3
018 8918194/ TX 5765-393 5DJPSD A62WR S NA 36
4688023 AIX VERSION 4.1.4
019 8918194/ TX 5765-423 5DJPSF X00XX X XX 00
0000000 XXX C FOR AIX VER 3
020 8918194/ TX 7015-4224 A74229 12653 C$ $1 Y 36
4688023 FEATURES
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
(*) See page 4 for explanations, definitions and additional terms.
FOR THESE LEASE RATES TO BE VALID, THIS SUPPLEMENT MUST BE SIGNED AND RECEIVED
BY LESSOR BY: 05/30/96.
Unit Purchase Lease (*)Estimated (*)
Line Price/ Rate Commencement Interest
No. Amount Financed $/1000 Rent /Release Date Rate
---------------------------------------------------------------------------------------------
008 54.13 30.38 2 04/96 5.91
007 54.13 30.38 2 04/96 5.91
008 54.13 30.38 2 04/96 5.91
009 1,066.80 30.38 32 04/96 5.91
010 3,947.18 30.38 120 04/96 5.91
011 12,643.60 30.38 384 04/96 5.91
012 312.14 30.38 9 04/96 5.91
013 12,643.60 30.38 384 04/96 5.91
014 632.18 30.38 19 04/96 5.91
015 485.99 30.38 15 04/96 5.91
016 13,038.71 30.38 396 04/96 5.91
017 485.99 30.38 15 04/96 5.91
018 12,920.18 30.38 393 04/96 5.91
019 485.99 30.38 15 04/96 5.91
020 2,008.23 30.38 61 04/96 5.91
---------------------------------------------------------------------------------------------
Total Amount Total Rent Payment Period
Financed (this page)
(this page) Taxes May Apply
MONTHLY IN ARREARS
80,832.98 1,849
---------------------------------------------------------------------------------------------
9
ISIS 2000, L.P. HARDWARE EQUIP LEASE
TERM LEASE SUPPLEMENT
DATE PREPARED: 05/01/96 Page 3 of 4
Customer No.: 8918194 SUPPLEMENT NUMBER: C00261220 PURCHASE AGREEMENT REF.: HQ12291
CUSTOMER NAME AND ADDRESS INSTALLED AT LOCATION IBM BRANCH OFFICE NO.: MRZ
ISIS 2000 LP ISIS 2000 LP IBM BRANCH OFFICE ADDRESS
2001 XXXXX XX 0000 XXXXX XX XXXXXX XX LEASE AGREEMENT NO.: 8918194
SUITE 2300 SUITE 2300 1605 LBJ FREEWAY ASSOCIATED SUPPLEMENT NOS.:
XXXXXX, XX 00000-0000 XXXXXX, XX 00000-0000 XXXXXX, XX 00000-0000
AMENDMENT NOS.:
ADDENDUM NOS.:
QUOTE LETTER NO.: Q0126552907
CUSTOMER REFERENCE:
Location/ Leased or Financed Item: Plant Order (*) (*)
Line Lessor Installed Type Model/Feature or Serial (*) Purch. Maint. (*)
No. Customer No. State Description MES No. No. Option Option Includ. Term
----------------------------------------------------------------------------------------------------------------------------
021 8918194/ TX 7015-4224 A75700 12650 C$ $1 Y 36
4688023 FEATURES
022 8918194/ TX 7015-2412 A78812 12650 C$ $1 Y 36
4688023 ENHANCED XXXX-0 XXXX X/X XXX
000 0000000/ XX 0000-0000 A78826 12653 C$ $1 Y 36
4688023 ENHANCED XXXX-0 XXXX X/X XXX
000 0000000/ XX 0000-X00 5DJPRJ 12650 C$ $1 Y 36
4688023 'LIC' RISC SYSTEM/6000
025 8918194/ TX 7015-R30 5DJPRX 12653 C$ $1 Y 36
4688023 'LIC' RISC SYSTEM/6000
026 8918194/ TX 7015-R00 5DJPSB 12651 C$ $1 Y 36
4688023 'LIC' RISC SYSTEM/6000
027 8918194/ TX 7015-ROO 5DJPSC 12652 C$ $1 Y 36
4688023 'LIC' RISC SYSTEM/6000
028 8918194/ TX 7132-REP 5DJPRQ 5790698 C$ $1 Y 36
4688023 ORDERING VEHICLE
029 8918194/ TX 7133-010 5DJPRL 00549 C$ $1 Y 36
4688023 'LIC' SSA DSK SUBSYS RK MT M
030 8918194/ TX 7133-010 5DJPRM 00550 C$ $1 Y 36
4688023 'LIC' SSA DSK SUBSYS RK MT M
031 8918194/ TX 7133-010 5DJPRN 00551 C$ $1 Y 36
4688023 'LIC' SSA DSK SUBSYS RK MT M
032 8918194/ TX 7204-317 5HKVCN C$ $1 Y 36
4688023 2.2GB EXTERNAL XXXX XXXXX
000 0000000/ XX 0000-000 5HKXVH C$ $1 Y 36
4688023 2.2GB EXTERNAL XXXX XXXXX
000 0000000/ XX 0000-000 5DJPLZ H2091 C$ $1 Y 36
4688023 RISC SYSTEM/6000 43P SERIES
035 8918194/ TX 9993-001 S 36
4688023 OTHER IBM FINANCING
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
FOR THESE LEASE RATES TO BE VALID, THIS SUPPLEMENT MUST BE SIGNED AND RECEIVED
BY LESSOR BY: 05/30/96.
Unit Purchase Lease (*)Estimated (*)
Line Price/ Rate Commencement Interest
No. Amount Financed $/1000 Rent /Release Date Rate
---------------------------------------------------------------------------------------------
021 669.42 30.38 20 04/96 5.91
022 1,000.00 30.38 30 04/96 5.91
023 1,000.00 30.38 30 04/96 5.91
024 144,352.38 33.62 4,853 04/96 5.91
025 144,325.38 33.62 4,852 04/96 5.91
026 5,872.85 30.38 178 04/96 5.91
027 5,872.85 30.38 178 04/96 5.91
028 2,127.95 30.38 65 04/96 5.91
029 35,591.15 33.13 1,179 04/96 5.91
030 35,591.15 33.13 1,179 04/96 5.91
031 35,591.15 33.13 1,179 04/96 5.91
032 2,187.50 42.38 92 04/96 5.91
033 2,187.50 42.38 92 04/96 5.91
034 13,169.20 42.38 558 04/96 5.91
035 81,923.32 32.58 2,669 04/30/96 10.66
---------------------------------------------------------------------------------------------
Total Amount Total Rent Payment Period
Financed (this page)
(this page) Taxes May Apply
MONTHLY
511,421.80 17,154 IN ARREARS
---------------------------------------------------------------------------------------------
Z123-3478-05 (06/94)
10
SUPP. NO.: C00261220
TERM LEASE SUPPLEMENT
ADDITIONAL TERMS AND CONDITION
OPTION CODES
B, B+, C, C+ Lease with fair market value end of lease renewal and
purchase options
B, C' Lease with prestated end of lease purchase and renewal
options
B$, C$ Lease with a 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
PURCH. 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.
RENT PROTECTION
The Lease Rates stated on the Supplement are not subject to change provided the
Lease or Financing commences within the month of the Estimated Commencement.
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's 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.
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 those 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.
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.
LEASE OPTIONS B+, C+ AND L
This amends the Lease Master Agreement referenced on page 1.
1. In paragraph 18 - Purchase of Equipment - in line 4 replace "Under Options
A or B" with "Equipment with a Purch. Option of 'FM'".
2. In paragraph 19 - Optional Extension - in line 7 replace "Options A or B"
with "Equipment with a Purch. of Option 'FM'".
Page 4 of 4
11
IBM CREDIT CORPORATION Xxxxxxxx, XX 00000
AGREEMENT NO. 9895083
--------------
DATE: 05-15-96
----------------------
CONTINUING CONTRACT OF AFFILIATE GUARANTY OF PAYMENT
----------------------------------------------------
In consideration of and to induce IBM Credit Corporation ("Lessor") to enter
into, and act as lessor under, the Term Lease Master Agreement or General
Business Lease Agreement as the case may be, or any other agreement referenced
above, as now in effect and as it may be amended in the future (the "Transaction
Agreement") and to extend credit to Isis 2000 Limited Partnership ("Lessee"), an
entity affiliated through common ownership with the undersigned ("Guarantor"),
the Guarantor, who will directly and indirectly benefit from the Transaction
Agreement and such credit arrangement, and from the credit extended as a result
of this Guaranty, for itself, its successors and assigns, hereby gives this
continuing, absolute, irrevocable, and unconditional Guaranty to Lessor.
Guarantor guarantees the full, prompt, and complete payment of all sums,
obligations, liabilities and indebtedness that are or may become due from
Lessee, whether at the stated due date, by acceleration or otherwise, under the
Transaction Agreement (the "Guaranteed Obligations"), without deduction or
setoff for any claims or defenses of Lessee or Guarantor. This Guaranty is a
continuing guaranty and shall (i) remain in full force and effect until the
indefeasible payment in full of the Guaranteed Obligations and any other
amounts payable under this Guaranty and (ii) be binding upon the Guarantor, its
successors and assigns.
In the event Lessee shall fail punctually to pay unconditionally and in full
any sum due to Lessor under the Transaction Agreement, Lessor shall give
written notice of demand for payment therefor by mail or hand delivery to
Guarantor who shall become immediately liable upon receipt of said notice. Such
notice may be given any time after such payment was due from or for the
account of Lessee under the Transaction Agreement without any requirement as to
timeliness and promptness. Guarantor agrees to pay in full all of such sums due
and unpaid within 30 days after receipt of said notice. Guarantor also agrees
to pay on demand reasonable attorneys' fees and legal expenses incurred by
Lessor to secure payment from Guarantor or Lessee.
Guarantor expressly agrees that Lessor may, without notice to or consent of
Guarantor, renew, compromise or extend the Guaranteed Obligations without
waiving, limiting or otherwise affecting Guarantor's liability hereunder and
Guarantor expressly waives and releases any defenses or claims it may have
arising form or on account of any such renewal, compromise or extension.
If acceleration of the time for payment of any Guaranteed Obligation is stayed
upon the insolvency, bankruptcy or reorganization of the Lessee, all such
amounts otherwise subject to acceleration under the terms of the Transaction
Agreement shall nonetheless be immediately payable to Guarantor hereunder on
written demand by Lessor.
If Lessee undergoes any change in its ownership or organizational structure or
otherwise assigns, transfers or delegates its obligations to any assignee or
transferee resulting form the operation of any assignment or transfer permitted
pursuant to the Transaction Agreement, this Guaranty shall continue to extend
to all sums due from or for the account of Lessee or the new or substituted
legal entity. This Guaranty shall survive any and all bankruptcy or insolvency
proceedings of Guarantor.
Guarantor agrees that a final judgment in any action or proceeding with respect
to this Guaranty shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. To the extent
that Guarantor has or hereafter may acquire any immunity from jurisdiction of
any court from any legal process (whether through service or notice,
attachment prior judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, Guarantor hereby irrevocably
waives such immunity in respect of its obligations under this Guaranty.
Lessor shall not be obligated to elect remedies first which are available to
Lessor in the transaction agreement and may secure payment first from
Guarantor. Securing payment from Guarantor will not constitute a waiver of
remedies against Lessee for breach of the transaction agreement Guarantor
hereby irrevocably waives, to the fullest extent permitted by applicable law,
diligence, presentment, demand (whether for non-payment or protest or
otherwise, except as expressly provided for under paragraph three (3) above)
and notice of acceptance, maturity, extension of time, change in nature or form
of the guaranteed obligations (or any acceptance of security, release of
security, compromise or agreement arrived at as to the amount of, or the terms
of, the guaranteed obligations, notice of adverse change in the financial
condition of Lessee or any other fact which might materially increase the risk
to Guarantor) or all other demands whatsoever and all guaranteed obligations
PAGE 2
12
shall be conclusively presumed to have been created in reliance upon this
Guaranty. This Guaranty is not in any way directly or indirectly conditioned
upon any attempt to collect from Lessee or upon an other event or contingency,
and shall be binding upon and enforceable against Guarantor without regard to
the validity or enforceability of the Transaction Agreement or this Guaranty in
any jurisdiction in which Guarantor is domiciled or owns assets or conducts
business or under the laws of which Guarantor is organized or is qualified or
licensed to do business. Guarantor stipulates that the remedies at law in
respect of any default or threatened default by Guarantor in the performance of
or compliance with any of the terms of this Guaranty are not and will not be
adequate, and that any of such terms may be specifically enforced by a decree
for specific performance or by any injunction against violation of any such
terms or otherwise.
Upon making any payment with respect to Lessee hereunder, the Guarantor shall be
subrogated to the rights of Lessor against the Lessee with respect to such
payment; provided that the Guarantor shall not enforce any payment by way of
subrogation until all amounts payable by Lessee under the Transaction Agreement
have been paid in full.
This Guaranty has been duly authorized, executed and delivered by Guarantor and
constitutes a legal, valid and binding obligation of Guarantor enforceable in
accordance with its terms. The execution and delivery of this Guaranty and the
consummation of the transactions contemplated hereby will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
Guarantor pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease, or other instrument to which Guarantor is a party or by which it may be
bound, or to which any of the property or assets of Guarantor is subject, nor
will such action result in any violation of the provisions of the certificate or
articles of incorporation or other organizing documents or by-laws of
Guarantor, or any applicable law, administrative regulation or administrative
court decree known to it after reasonable investigation.
The obligations of the Guarantor hereunder shall be limited to an aggregate
amount equal to the largest amount that would not render its obligations
hereunder subject to avoidance under Section 548 of the United States Bankruptcy
Code or any comparable provisions of any applicable state law.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF
LAWS. GUARANTOR AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SERVICE
OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS
OF GUARANTOR OR ANY METHOD AUTHORIZED BY THE LAWS OF TEXAS AND THE APPLICABLE
RULES OF THE COURTS OF THE UNITED STATES OR THE STATE OF TEXAS.
This Guaranty constitutes the entire agreement with respect to the subject
matter hereof. If any term or provision of this Guaranty or application
thereof shall be invalid or unenforceable, the remainder of this Guaranty shall
remain in full force and effect.
IN WITNESS WHEREOF, this agreement has been signed by an authorized officer of
Guarantor.
GUARANTOR: WYNDHAM HOTEL CO, LTD
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By:
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Name: Xxxx Xxxxxx
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Title: VP, Controller
---------------------------------
Address: 0000 Xxxxx 00xx Xxxxx
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Xxxxxx, XX 00000
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Telephone: 000 000 0000
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Date: 5/22/96
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Attest:
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Name: Xxxx Xxxxx
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Title: Notary Public in and for the State of Texas
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