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2003-036 FILE REFERENCE FORM 2003-036 FILE(S) Date Initials Change Order One approved bv Ordinance No. 2003-370 1]/18/03 JR Change Order Two approved bv Ordinance No. 2005-262 09/20/05 JR ORDINANCE NO. POZ OZ AN ORDINANCE AWARDiNG A CONTRACT FOR THE LEASE OF DESKTOP PCS, NOTEBOOK PCS, SOFTWARE, PERIPHERALS, AND SERVICES AS AWARDED BY THE STATE OF TEXAS BUILDiNG AND PROCUREMENT COMMISSION DEPARTMENT OF INFORMATION RESOURCES (DIR); PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (FILE 2954-DELL MASTER LEASE AWARDED TO DELL MARKETING, L.P. IN THE AMOUNT OF $176,153.95 PER 6 MONTHS FOR A TOTAL OF $1,056,923.70). WHEREAS, pursuant to Resolution 92-019, the State Building and Procurement Commission has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies or services can be purchased by the City through the Building and Procurement Commission programs at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. That the numbered items in the following file number for materials, equipment, supplies, or services, shown in the file number listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER VENDOR AMOUNT 2954 Dell Marketing L.P. $1,056,923.70 SECTION II. That by the acceptance and approval of the above numbered items set forth in File 2954, the City accepts the offer of the persons submitting the bids to the Building and Procurement Commission for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, conditions, specifications, standards, quantifies and for the specified sums contained in the bid documents and related documents filed with the Building and Procurement Commission, and the purchase orders issued by the City. SECTION III. That should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the Building and Procurement Commission, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the writt~en contract is in accordance with the terms, conditions, speci- fications and standards contained in the Proposal submitted to the Building and Procurement Commission, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION IV. That by the acceptance and approval of the above numbered items set forth in File 2954, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved file or pursuant to a written contract made pursuant thereto as authorized herein. SECTION V. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this //~(f EUL1NE BROCK, MAYOR day of_~4~.~:,,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY '~greement Number: 02000390 iMASTER LEASE AGREEMENT This Master Lease Agreement, dated amd effective as of August 14, 2002, is entered into between Deli Marketing, LP, with its principal offices at One Dell Way, Round Rock, Texas 78682 (thc "Lessor") and the State of Tcxac (the "Lessee"), acting by and through thc Department of Information Resources ("DIR') with its principal office at 300 West 15th Street, Suite 1300, Austin, Texas 78701, T~RMS AND CONDmONS 1. Definitions. Asset(s). All of the personal property, including hardware, software or licensed products, services, and/or maintenance listed on any Schedule. 'vVhen Asset(s) refers to Software licensed lo Lessee it shall be understood that said software shall continue to be owned by licensor as set forth in thc applicable software license agreement. Commencemeut Date. The date(s) Lessoc's obligation to pay Rent begins, which will be the delivery date for each Asset under each schedule. lultisl Schedule Term. Thc period initially agreed to constitute the lease period as set forth in the Schedule. Schedule Term. For each Schedule: shall include the Initial Schedule Term and any Renewal Schedule Terms. Renewal Schedule Term. Any periiod subsequent to the Initial Schedule Rent. The payment by Lessee to Le:sser of money for the lease of the Asset(s) covered by the Schedule. Schedule. The document cntifled '~Froe Lcase Schedule" specifying the Asset(s), Rent payments, casualty values, Leasor's costs and other information. Lessee. Any Texas state agency and local government as defined in Section 2054.003, Texas Government Code (including institutions of higher educa~iun as defined in Texas Education Code, Section 61.003), and those state agencics purchasing fi.om a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code. 2. Schedulea. Lessor agrccs to lcasc to Lessee, an~d Lessee agrees to lease from Lessor, subject to the terms and conditions of this Master Lease Agreement, the Asset(s) described in each Schedule. Each Schedule constitutes a scparately assignable agrcement between the parfilcs executing each Schedule and incorporates in full the i=,~ end conditions of this Master Lease Agreement. Unless DIR leases Asset(s) for its own use, DIP, is not e party to the Schedules executed under this Master Lease Agreement and is not responsible for Rents, payments or other obligations under such Schedule(s). Term of Master Lease Anreemen~t and Schedules. (a) The term of this Master Lease A~reement commences on the execution date hereof and continues until (I) the obligations of Lessee onder every Schedule are fully dischar$cd and (H) either party provides thirty (30) days prior written notice of termination. DIR / Dell Marketing L.P. Ma~ter Lease Agreement I Agreement Number: 02000390 (b) The Initial Schedule Term for each Schedule shall be as set forth thereon. Until either party provides the other with prior written notice of termination, Renewal Schedule Terms of each Schedule shall extend automatically, at thc Rent last in effect, for successive three-month terms beyond the expiration of the Initial Schedule Term. All such terminations are effective only (I) following written notice received not less than ninety (90) days prior to the end of the Schedule Term, (H) on thc last day of the Initial Schedule Term or Renewal Schedule Term then in effect and (m] with respect to not less than all Asset(s) under a Schedule. Notice of Termination by Lessee may not be revoked without Lcssor's consent. 4. Admtnt~raflon of Master Lease. (a) For requests involving the leasing of Dell Marketing, LP equipment, eaoh potential Lessee will submit its request directly to the Lessor. Lessor shall use the then current conU'act pricing offered within the Dell Marketing, LP and DIR purohas~g contract. Lessor shall submit the lease proposal and all other doouraants directly to the potential Lessee. (b) When incident to a lease of Dcll branded Asset(s), and solcly at thc discretion of Lessor, Asset(s) may also be leased from Lessor that is not manufactured by the parent or an affiliate of Lessor. In such case, DIR would obtain thc price quotation from the manufactorer or reseller, add DIR's administrative fee to thc quotation, and submit the quotation to thc Lessor for calculation of the Lease Rate Factor, which shall include DIR's administrative fee. DIP, will infm'm Lessor of the edrninistrativc percentage fcc. Lessor shall prepare the Schedule(s), provide them to DIR and DIP, will submit thc Schedule(s) to thc potantial Lessee. With respect to non-Lessor affiliated Asset(s), DIR will arrange for thc nmnufacturer to deliver the Asset(s) to the Lessee and for thc manufacturer or reseller to, bill Lessor for thc cost of thc Asset(s), excluding DIP,'s administrative fee. In connection with such a purchase, DIP. will endeavor to ensure that Lessor is given the benefit of pricing, payment or other favorable terms that would be provided to DIR by the manufacturer or reseller ifDIR were to acquire the Asset(s) directly. Lessor shall be responaiblc for thc payment to the manufacturer or reseller and for the recovery of that amount, and the administrative fee for DIR, from Lessee under thc applicable Schedule(s). Within five (5) days of execution of a Schedule between Lessor and Lessee, Lessor shall provide DIP, a copy of thc executed Schedule. DIR shall provide an invoice to Lessor for thc DIR administrative fee percentage of the full amount of' Rent due under the Schedule. Immcdietely after the Lcsscc receives the Asset(s) and Lessor books the lease, Lessor shall pay DIP. the administrative fee. The parties agree such payment shall generally be made within thirty days of the date DIR's invoice is received by Lessor. (c) Lessee will issue a purchase order in the amount indicated on the Schedule(s) to Lessor for the Asset(s). Any pre-p~ted t=,,us and conditions on the purchase order submitted by the Lessee shall not be effective with respect to thc lease of Assets hereunder. Rather, the t~lu,.~ and conditions of this Master Lease Agreement and applicable Schedule(s) shall control hi all rcspeets. (d) As Rent for the Asset(s), Lessee shall pay Lessor the amounts on thc due dates set fox~h in the Schedule. (e) Bach Schedule is a net lease and except as specifically provided herein, Lessee shall be responsible for all costs and expenses arising in co~recfion with thc Scbedulc or Asset(s). Lessee acknowledges and agrees, except as expressly provided in Section 18 hereof, that its obligation to pay Rent and other sums payable hereunder, and the rights of Lessor and Lessor's assignees, shall be absolute and unconditional in all events, and shall not be subject to any abatement, reduction set-off, defense, counterclaim or recoupment duc or alleged to be due by reason of any past, present or future claims Lessee may have against Lessor, Lessor's assigns, the manufacturer, vendor, or maintainer of the Asset(s), or any person for any reason whatsuever. (f) On all amounts not paid by Lessee when due, late charges shall accrue at the rate of twelve percent (12%) per annum (or the maximum rate allowable by law, if less) f~m thc due dates thereof until received by Lessor. DIP,,/Deli Marketing L.P. Mastm' Lease Agreement A~reement Number: 02000390 Late charges and attorney's fees mecessary to recover Rent and other amounts owed by Lessee hereunder arc considered an integral part of this Master Lease Agreement. Payments under the A~eement are subject to thc provisions of the Texas Prompt Payment Act, (g) If Lessor is contacted by, or contacts, a potential Lessee, as defined in Section One, Definitions, concerning leasing Asset(s), Lessor shall make a good faith effort to make thc entity aware of the ability to lease Asset(s) through this Master Lease Agreement. Provided, however, nothing herein shall require Lessor to use this Agreement exclusively with Lessees. Further, this Agreement shall not constitute a requirements cunh~ct and Lessor shall not be obligated to enter into any Schedule for the lease of Asset(s) with any Lessee. 5. Selection: Inenecflon: Accentance. (a) The Asset(s) are of a size, design,, capacity and manufacture selected by Lessee in its sole judgment and not in reliance on the advice or represe~tefions of Lessor. No representatiun by the manufactorer or vendor shall in any way affect Lessee's duty to pay Rent and perform its other obligations hereunder. Each Schedule is intended to be a "fmuncc lease'" as defined in Article 2A of the Uniform Commercial Code. Lessor has acquired or will acquire the Asset(s) in connection with this Lease. Lessee acknowledges either (a) thai Lessee has reviewed and appro~ved any written purchase order, supply cun~act or purchase agreement ("Supply Contract"), covering the Asset(s) purchased from the manufacturer or vendor thereof ("Vendor'~ for lease to Lessee; or Co) that Lessor has informed or advised Lessee, in writing, either previously or by this Lease of the following: (I) the identity of thc Vendor; 01) that the Lessee may have rights under the Supply Con~ract; and 01~ that thc Lessc..e may contact thc Vendor for a description of such rights that Lessee may have under the Supply Contract. Lessor shall not be liable for damages for any reason, for any act or omission of the Vendor. Lessor agrees, to the extent they are assignable, to assign the Lessee, without recourse to Lessor, any warranties provided to Lessor with respect to the Asset(s). Promptly upon delivery, Lessee will inspect the Asset(s), and, not later than 10 business days following the Commencement Date, Lessee will execute and deliver either (I) an Accoptance Certificate in the form of Exhibit A hereto for thc Asset(s),. or CI0 writicn notification of any defects in the Asset(s). If Lessee has not given notice within such time per/od, the Asset(s) shall be conclusively deemed accepted. 6. Warranties: Oulet Eniovment and Disclaimer: I~demnitv. (a) Lessor warrants that, provided Lessee is not in default, Lessor will not interfere with Lessee's quiet use and enjoyment of the Asset(s). (b) EXCEPT FOR THE PROVISIONS OF 6(a) ABOVB, '~ttlH RBGAI~ TO THE ASSET (S), LESSOR MAKES NO EXPRESS OR IMPLIED WARRAN'rlIIS OF ANY KIND, INCLUDING WITHOUT LIMITATION: THOSE OF lvIERCHANTABILITY OR FITNESS FOR PURPOSE OR USE, OF CONDITION, PERFORMANCE, SUITABILITY OR DESIGN, OR CONFORMfi'Y TO ANY LAW, RULE, REGULATION, AGREEMENT OR SPECIFICATION, OR OF INFRINGEMENT OF ANY PATENT, TRADE SECRET, TRADEMARK, COPYRIGHT OR OTHER INTANGIBLE PROPERTY RIGHT. Lessor shall have no liability to Lessee, nor any other party, nor shah Lessee abate payments, for any loss, claim or damage of any nature caused or allcgod to be caused directly, indirectly, incidentally or consequentially by the Asset(s), any inadequacy thereof, deficiency or defect therein (whether known or knowable by Lcssor), by any incident whatsoever arising in connection therewith, whether in strict liability or otherwise, or in any way related to or arising out of this Master Lease Agrccmont or any Schedule. (c) Without waiving thc doctrines of soverciga immunity and immunity from suit, and to the extent allowed by the laws and Constitution of the State of Texas, Lessee assumes all risks and liabilities, whether or not Dig / Dell Marketing L.P. Master ~ Agreement Agreement Number: 02000390 covered by insurance, for loss or damage to any Asset(s) and for injury to or death of any person, or damage to any property, whether such injury or death be with respect to agents or =mployecs of Lessee or of third parties, and whether such property damage be to Lessee's property or the property of others, which is proximately caused by the negligent conduct of Lessee, its officers or employees. 7. Ins*sllaitons: Use: ReuaiF and Maintenance. (a) Lessee shall provide a place of installation, which conforms to the requirements of the manufacturer. Subject to thc torres bereof, Lessee shall be entitled to unlimited usc of the Asset(s) except that in thc case of software, the Asset(s) arc subject to the parties' fights undor thc applicable software license agrecment. Lessee shall not use or permit thc nsc of the Asset(s) for any purpose, which, according to the specifications of the Manufacturer, the Asset(s) arc not, designed or reasonably suited. Lessee shall use the Asset(s) in a careful and proper manner and shall comply with all of thc manufacturer's instructions, governmental rules, regnlations, requirements and laws, and all insurance requirements, if a~y, with regard to the usc, operation or maintenance of the Asset(s). (c) Lessee shall be solely responsible for the installation, maintenance and repair of thc Asset(s). During the Schedule Te.,,, Lessee shall (i) keep the Asset(s) in good repair, condition and working order; (ii) maintain in force a ma'mtenance contract with the manufacturer or with another qualified service organization; and (iii) perallt access to thc Asset(s) for installation of engineering changes required to maintain the Asset(s) at the manufacturer's current engineering levels. 8. OwneFsMp; lnsuection: Relocation: Personal PFODeF~v. The Asset(s) shall at all times be and remain the sole and exclusive property of Lessor, subject to the parties rights under any applicable sofl~a~u'c license agre~nnent. Lessee shall have no fight, title or interest in thc Asset(s) except a leasehold interest as provided for herein. (b) Lessor, its assigns or their ageats shall be perr, iittad frcc aeccss at reasonable times to inspect thc Asset(s). (c) Lessee shall at all times keep the Asset(s) within its exclusive posscssiun and control. Upon Lessor's prior written consent, which shall not be unreasonably withheld, Lessee may move the Asset(s) to another location of Lessee within the conlinental United States, provided (i) Lessee is not in default on any Schedule, (ii) Lessee executes and canses to be filed at its expense such instruments as are necessary to preserve and perfect thc interests of Lessor and its assigns in thc Asset(s), (iii) Lessee pays all costs of, and provides adequate insurance during such movemenlt and (iv) Lessee pays all costs otherwise associated with such relocation. Notwithstanding the foregoing, ~Lessce may move the Asset(s) to another location within Texas without notification to, or the consent of; Lessor. Provided, however, that not later than December 31 of each year, Lessee shall provide Lessor a wr/tton report derail'rog the total number of Asset(s) at each location of Lessee as of that date, and the complete address for each loeation. Lessor shall make all filings and returns for properW t~xes due with respect to the Asset(s), and Lessee agrees that it shall not make or file any property tax returns, including informationt returns, with respect to the Asset(s). (d) Lessee agrees that the Asset(s) sl~!l be and x~cmain personal property and shall not be so affixed to realty as to become a fixture or otherwise ~o lose its identity as thc separate property of Lessor. Upon request, Lessee will enter into all aireements necessary to ensure that thc Asset(s) remain the personal propcn'y of Lessor. DIll./Dell Marketing L.P. Master Lease Agreemmt 4 Agreement Number: 02000390 9. Liens, Lessee shall at its expense keep the Asset(s) fi*ee and clear of all levies, liens, and encmnSranccs, except those in favor of Lessor or its assigns. 10. Risk of Luss. (a) Commencing upon delivery and continuing throughont thc Schedule T*~'m, Lessee shall bear thc entire risk of loss with respect to any Asset damage, destruction, loss, theft, or govenunental taking, whether partial or complete, for any reason. No event of loss shall relieve Lessee of its obligation to pay Rent under any Schedule; If any Asset is damaged, Lessee shall promptly notify Lessor and, at Lessee's expense, within 60 days of such damagc, cause to be made such repairs as ere necessa~/to return such item to its previous condition, reasonable wear and tear is excepted; In the event any Asset is destroyed, damaged beyond rcpair, lost, stolen, or taken by governmental action for a stated period extending beyond the t~.a of any Schedule (an "Event of Loss"), Lessee shall promptly notify Lessor and pay to Lessor, on the ncxt Rent payment date following such Event of Loss, an amount equal to the Casualty Value for the Asset suffering the Event of Loss then in effect as set forth on thc Schedule. After payment of such Casualty Value end all Rent end other amounts due and owing on and before such Rent payment date, Lessce's obligation to pay fiirther Rent allocable to the Asset which s~ the Event of Loss shall cease. After receipt of such Casualty Value by Lessor or its assigns, Lessee shall be entitled to receive any insurance or other recovery receivcd by Lessor or its assigns in conneetion with such Event of Loss, and th~ Asset(s) for which such Casualty Value was received shall be conveyed to Lessee AS IS, WHERE IS and free and clear of all liens and encambranees created by or arising through Lessor, but otherwise WIttiOUT FURTHER WARRANTY (EXPRESS OR IMPLW. D) WHATSOEVER, INCLUDING WITHOUT LIMITATION, WAIGRANTmS OF MERCHANTABILnvY OR FITN'ESS FOR PURPOSE OR USE; and In thc event of a governmental taking of an Asset for an indefinite period or for a stated period, which docs not extend beyond the Schedule T=,,a, all obligations of thc Lessec with respect to such Asset (including payment of Rent) shall contiuue. So long as Lessee is not in default hereunder, Lessor shall pay to Lessee all sums received by Lessor from thc gnvemment by reason of such taking. 11. Insurance. Lessee at its expense shall maintadn fire and extended coverage insurance against loss, theft, damage, or destruction of the Asset(s), in an amoon'.t not less than the Casualty Value of the Asset(s). Lessee shall further, at its expense, provide and maintain co,,qnehensive public liability insurance in an amount of $1,000,000 per occurrence against claims for bodily injury, death and/or property damage arising out of the use, ownership, possession, operation or condition of the Asset(s), ltogether with such other insurance as may ha required by law which names Lessee as an insured end Lessor and its assign(s) as additional insured as their respective interest may appear. Such insurance shall contain a clause requiring the insurer to give Lessor at least one-month prior written notice of the cancellation or any alteration in the t,,,,~s of such policy. Each policy of property damage insurance shall name Lessor and its assign(s) es loss payees mhd shall state that all claims there under shall be payable to such pan'y(ics) irrespective of any breach of warranty or other act or omission of Lcssee. Each insuroncc policy shall be with an insurance carrier licensed to providc thc insurance required herein in the states where the Asset(s) are located. Lessee hereby appoints Lessor as Less~ee's attomey-in-faet upon Lessee's failure to act promptly in any manner with ressrd to any claim, to make proof of loss and claim for insurance, to make adjustments with insurers, and to DI~ / Dell Marketing L.P. Master Lease Agreement 'Affmement Number: 02000390 receive paymcnt of end exccute or endorse all documents, checks, end drafts in connection with payments made as a result of such insurance policies. Le .ssae will not make adjustments with insurers except with Lessor's written consent. Lessee shall furnish to Lessor, upon requast, certificates of insurance or other evidence satisfactory to Lessor that such insurance coverage is ~n effect or, if Lessor consents, that Lessee is self-insured. Lessec's liability for loss under Section l0 shall not be ,timini.sh~ by eny insurance payment less than the actual amount of the loss. Lessees that are defined as state ageneics in accordance with Section 2054.003, Texas Government Codc (including institutions of higher education as defined in Texas Bducation Cedc, Section 61.003) end those purchasing from a DIR contract through en Interagency A~reement, as authurizcd by Chapter 771, Texas Government Code, may self- insure their obligations in this section. 12. Surrender of Aaset~s). (a) On thc last day of the Schedulc Term, Lessee shall return the Asset(s) to Lessor in good repair, condition end working order, ordina~ wear end tear alone excepted, at the location specified by Lessor, provided, however, such location shall be within the United States end no farther than 500 miles from the original shipment location. Lessee shall arrange and pay for de-installation end packing in accordance with the manufacturer's specifications end for the cost of'tramporfing the Asset(s) by ground, within the United States, no more than $00 miles from the original shipment location, end fur insured transportation, if applicable, such insurance coverage if applicable to be not less than the Asset(s) Casualty Value last in effect. Lessee shall, at its expense, cause each Asset to be repaired as necessary to conform to the foregoing return conditions; If, on the 1ast day of the Schcdule Term, Lessee shall fail to return to Lessor any Assct listed un the Schedule, Lessee shall be treated as a holdover tenant for all of the Asset(s) listed on thc Schedule for a Renewal Schedule Term in accordance wif& Section 3(b) above end shall continue to pay Rent in the amount set forth in the Schedule for all Asset(s). ~his provision shall continue for periods beyond the first such renewal tenn. In no event may Lessee avoid the effcct of this provision by returning less than all Asset(s) listed on any Schedule or by returning subst~tutc assets unless Lessor, in its sole discretion, shall expressly agree in writing; end (c) This Section shall not derogate ~om Lcssor's right, to be exercised in its sole discretion, to obtain return of all Asset(s) on the last day of any Schedule Term, or to declare en Event of Default for eny failure of Lesscc to so return the Asset(s). 13. RePresentations and Warranties of Lessee. Lessee represents and warrants for' thc benefit of Lessor end its assigas, end Lessee will provide au opinion of counsel to thc effect that, as of the time of execution of the Master Lease Agreement end each Schedule between Lessor and Lessee: (a) Lessee is either a Texas state agency or Texas local governments defined in Section 2054.003, Texas Government Code (including institutions of higher education as defined in Texas Education Code, Section 61.003) or a state agency purclmsing from a DIR contract through en Interagcncy Agreement, as authorized by Chapter 771, Texas Government Code; (b) ,Each Schedule executed by Lessee has been duly authmized, executed end delivered by Lessee and constitutes a valid, legal and bindling agreement of Lessee, enforceable in accordance with its terms; (c) No approval, consent or withholding of objection is required from any federal or other governmental authority or inslrumentality with respcct to the entering into or performance by Lessee of any Schedule bctwccn Lcssor ~nd Lessee; DIR[ / Dell M~ketin~ L.P. Master Lease Agreement 'Agreement Number: 02000390 The enter/rig into end performance of any Schedule between Lessor and Lessee, the Master Lease Agreement or eny Schedule will not violate ~ny judgment, order, hw or regulation applicable to Lessee or Result in eny breach of, or constitute a default under, or result in the creation of eny lien, charge, security interest or other encumbrance upon asscts of the Lessee or on thc Asse~(s) leased under eny Schedule bctwecn Lessor and Lessee pursuant to eny/nstrumcnt to which thc Lessee is a party or by which it or its assets may be bound; (e) To the best of Lessee's knowiedgc and belief, there are no suits or proceedings pending or threatened against or affecting Lessee, which if detemlined adversely to Lessee will have a material adverse effect on the ability of Lessee to fulfill its obligations under the Master Lease A~reement or eny Schedule between Lessor end Lessee; end (0 The use of the Asset(s) is essential to Lessee's proper, efficient end cconoraic operation, end Lessee will sign and provide to Lessor upon e~xecution of each Schedule between Lessor and Lessee he.to written certification to that effect. 14. Representation and Warranties o~DIIL DIR r=v,=$ents end wammts for thc benefit of Lessor end its assigns, and DIR will provide en opinion of counsel to the effect that, as of the time ,of execution of the Master Lease A4~reement: (a) DIP. is a State agency as defined in Section 2251.001, Texas Government Code; This Master Lease Agreement ~ been duly authorized, executed and delivcze, d by DIP. end constitutcs a valid, legal end binding agreement of DlR, enforceable in accordance with its tonns; (c) No approval, consent or withholding of objection is required from eny federal or other governmental authority or governmental authority or inslrumentallty with respect to the entering into or performance by DIR of this Master Lease Agreement; Thc entering into and performance of thc Master Lease Agreement does not violate eny judgment, order, law or regulation applicable to DIR or result in eny breach of, constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance upon assets of DIR or on thc Asset(s) pursuant to eny instrument to which DIP. is a party or by which it or its assets may be bound; (e) To the best of DIR's knowledge amd belief, there are no suits or procccdinga pending or threatened against or affecting DIR, which if determined adversely to DIR will have a material adverse effect on the ability of DlR to fulfill its obligations under the Master Lease Agreement; (f) DIR is authorized to charge and collect thc adm/nish'ative fcc set forth herein; (g) Lessor's payment of the adrninisarafive fee to DIP, shall not constitute an illegal gratuity or otherwise violate Texas law; and DIR is a government agency subject to the Texas Public Information Act. Lessor acknowledges that DIR will comply with the Public Information Act, end with all opinions of the Texas Attorney Generals' office concerning this Act. DIR/Dell Ma~ing L.P. Master Lease Airccmcnt 7 Agreement Number: 02000390 1~. RenresentaflonsandWarranfles of Lessor. Lessor is aaa enlity authorized und validly existing under the laws of its state of organization, is authorized to do business in Texas, and is not in default as to taxes owed to the State of Texas and any of its politicel subdivisiom; (b) Thc Master Lease A~reement amd each Schedule have been duly authorized, executed and delivered by Lessor end constitute valid, legal and binding agreements of Lessor, enforceable in accordance with their (c) No approval, consent or withholding of objection is required from any federal or other governmental authority or instrumentality with respect to the entering into or performance by Lessor of this Master Lease Agreement or any Schedule; (d) The entering into end performance of the Master Lease Agreement or eny Schedule will not violate any judgment, order, law or rcgnlati~on applicable to Lessor or result in any breach of, or constitute a default under, or result in the creation off any lien, charge, security interest or other encumbrance upon the assets of the Lessor, including Asset(s) leased under the Master Lcase Agreement and Schedules thereto, pursuant to any inslrument to which the Less~r is a party or by which it or its assets may be bound; and (e) To the best of Lessor's knowledge and belief, there are no suits or proceedings pending or threatened against or affecting Lessor, which if deteu-mined adversely to Lessor will have a material adverse effect un thc ability of Lessor to fulfill its obligations under the Master Lease Agreement or any Schedule. 16. Default and Remedies. (a) The occurrence of any of thc foil,owing events shall constitute an event of default ("Event of Default'~ under a Schedule: (I) nonpayment by L~ssee of Rent or any other sum payable by its due date; (H) failure by Lessee to perform or observe any other terra, covenant or condition of this Master Lease Agreement, uny Schedule, or any applicable software license agreement, which is not cured within ten (10) days after notice thereof from Lessor; 0I~ insolvency by iLessee; (IV) Lessee's filing of eny proceedings commencing bankruptcy or the filing of any involuntary peti~on against Lessee or the appointment of eny receiver not dismissed within sixty (60) days from the date of said filing or appointment; (V) subjection of a substantial part of Lessee's property or eny part of thc Asset(s) to any levy, seizure, assignment or sale for or by any creditor or govemmentul agency; Cv'l) any wpie,'entation or warranty made by Lessee in this Master Lease Agreement, any Schedule or in any document furnished by Lessee to Lessor in connection therewith or with the acquisition or use of the Asse~s) shall be untrue in eny material respect; or (VII) a termination of any applicable software license agreement. Co) Upon the occurrence of an Event of Default end at any time thereafter Lessor may, in its sole discretion, do eny one or more of thc following: (i) After giving fifteen (15) days prior written notice to Lessee of default, during which time Lessee shall have the opportunity to cure such default, tenninate eny or all Schedules executed by Lessor and the defaulting Lessee; (ii) Without waiving the doctrines of sovereign immunity and immunity from suit, and to the extent allowed by the laws and Constitmion of the State of Texas, Lessor may proceed by appropriate court action to enforce the performance of the i~,,,,s of the Schedule en/or recover damages, including all of Lessor's economic loss for the breach thereof; (iii) Whether or not the Schedule is terminated, upon notice to Lessee, take possession of the Asset(s) wherever located, without demand, liability, court order or other process of law, and for such purposes Lessee hereby authorizes Lessor, its assigns or the agents of either to enter upon the premises where such Asset(s) are located or cause Lessee, and Lessee hereby agrees, to retrain such Asset(s) to Lessor in accordance with thc rcquirements of Section DIR / Dell Marketing L.P. Master Lease Agreement A~r¢¢ment Number: 02000390 12 hereof; (iv) By notice to Lessee, and to thc extent permitted by law, deelare immediately due and payable and recover from Lessee, as hquidated damages and not as a penalty, the sum of (a) the present value of thc Rent owed from the earlier of thc date of payment by Lessee or the date Lessor obtains a judgment against Lessee until the end of the Schedule Term plus, if the Assets are not returned to or repossessed by Lessor, the present value of the estimated In-place fair market value of the Assets at the end of the Schedule Term as detcau,ined by Lessor, each dis~ounted at a rate of four percent (4%) per annum; (b) all Rent and other amounts duc end payable on or before the earlier of the date of payment by Lessee or the date Lessor obtains a judgment against Lessee; end (c) without waiving the doctrines of sovereign imm~.lnity and i~mhtlnity from suit, and to the extent allowed bly the laws end Constitution of the State of Texas, costs, fees (lncind/ng all attorneys' fees and court costs), expense8 and (d) interest on (a) and (b) fi.om the date of default at 1 V2% per month or pofliun thereof(or the highest rate allowable by law, if less) and, on (c) from the date Lessor recurs such fees, costs or expenses. (c) Upon return or repossession of thc Asset(s), Lessor may, if it so decides in its sole discretion, upon notice to Lessee, use reasonable efforts to sell, re-lease or otherwise dispose of such Asset(s), in such manner and upon such terms as Lessor may det,,u,ine in its sole discretion, so long as such manner and terms are commercially reasonable. Upon disposition of the Asset(s), Lessor shall credit the Net Proceeds (as defined below) to the damages paid or payable by Lessee. Proceeds upon sale of thc Asset(s) shall be the sale price paid to Lessor less the Casualty Value in effect as of thc date of default. Proceeds upon a re-lease of the Asset(s) shall ha all rents to be received for a term not to exceed the remaining Schedule Term, discounted to present value as of thc cominencement date of the re-lease at the Leasor's cun'ent applicable debt rate. Without waiving the doctrinas off sovereign immunity and i,muanity from suit, and to the extent allowed by the laws and Constitution of the State of Texas, 'Net Proceeds" shall be the Proceeds of sale or re-lease as determined above, less all costs ;and expenses incmred by Lessor in the recovery, storage and repair of the Asset(s), in the remarketing or disposition thereof, or otherwise as a result of Lessee's default, including any court costs and attorney's fees and interest on the foregoing at eighteen percent (18%) per annum or the highest rate allowable by law, if less, calculated from the dates such costs and expenses were incurred until received by Lessor. Lessee shall remain liable for the amount by which all sums, including liquidated damages, due from Lessee exceeds the Net Proceeds. Net Proceeds in excess thereof are the property of and shall be retained by Lessor. (d) No tr,,,,,;aation, m'~possession or other act by Lessor in the exercise of its rights and remedies upon an Event or Default shall relieve Lessee from any of its obligations hereunder. No remedy referred to in this Section is intended to be exclusive, but eacl~ shall be cumulative and in addition to any other remedy referred to above or otherwise available to Lessor at law or in equity. (e) Neither DIR nor non-defaulting Lessees shall be deemed in default under the Master Lease A~reement or Schedules because of the defaulit of a particular Lessee. Lessor's remedies under this Section 16 shall not extend to DIP. and non-defaulting Lessees. 17. Effect of Waiver: Substitute Performance bv Lessor. (a) No delay or omission to exercise any right or remedy accruing to Lessor upon any breach or default of Lessee shall impair any such right or remedy or be consimed to be a waiver of any such breach or default, nor shall any waiver of any single breach or default be construed to waive or impair Lessor's rights and Remedies with respect to any breach or default therefore or thereafter occurring. Any waiver, consent or approval on the part of Lessor of any breach or Default under this Schedule, or any provision or condition hereof, must be in writing and shall be effcctive only to thc extent such writing specifically sets forth. Dig:/Dell Marketing L.P. Master Lease A~reement 9 Aureement Number: 02000390 Should Lessee fail to make any payment or do any act as herein provided, Lessor shall have the right, but not the obligation, and without releasing Lessee from any obligation hereunder, to make or do the same. All sums so incurred or expended by Lessor shall be iumtediately due and payable by Lessee and shall bear interest at eighteen percent (18%) per annum or the highest rate allowable by law, if less, calculated from the date incurred until reeeivcd by Lessor. 18. Assi~nment by Lessor: Assitmment or Sublease by Lessee. (a) Lessor may (i) assign all or a portion of Lessor's right, title and interest in this Master Lease Agreement and/or any Schedule; (ii) grant a sccurity interest in the right, title and interest of Lessor in the Minster Lease Agreement, any Schedule and/or any Asset(s); and/or (iii) sell or Iransfer its title and interest as owner of the Asset(s) and/or as Lessor under any Schedule; and DIR and each Lessee leasing Asset(s) under thc Master Lease Agreement understand and agree that Lessor's assigns may each do thc same (hereunder collectively "Assignment"). All such Assill~nrnants shall be subject to each Lessee's rights under thc Schedule(s) executed between it and Lessor and to DIR's rights under the Master Lease Agreement. Each Lessee leasing Asset(s) through Schedules Imder this Master Lease Agreemant and DIR hereby consent to such Assignments and agree to execute and deliver promptly such acknowledgemants, opinions of counsel and other instruments reasonably requested to effect such Assignment. Each Lessee leasing Asset(s) through Schedules under this Master Lease Agreement and DIR acknowledge that the assigns do not assume Lessor's obligations hereunder and agree~ to make all payments owed to the assigns without abatement and not to assert against the assigns any claim, defense, seteff or counterclaim which DIR or the Lessee(s) may possess against the Lessor or any other po~t for any other reason. Lessor shall remain liable for perfu~mance trader the Master Lease Agreement and any Schedule(s) executed hereunder to thc extant Lcssor's assigns do not perform Lessor's obligations under the Master Lease Agreement and Schedule(s) executed hereunder. Upon any such Assignment, all references to Lessor shall also include ell such assigns, whether specific reference thereto is otherwise made herein.. (b) Without thc prior written consent of Lessor, Lessee shall not assign, sublease, transfer, pledge or hypothecstc the Master Lessc Agreement, any Schedule, the Asset(s), any part thereof, or any interest in the foregoing. Without the prior written consent of Lessor, DIR shall not assign, sublease, h-ansfer, pledge or hypothecate the Master Lease Agreement. 19. Delivery of Related Documents. For each Schedule, Lessee will provide the following documents and information satisfactory to Lessor: (a) Certificate of Acceptance; (b) Opinion of Counsel; (c) proof of sail-insurance acceptable to Lessor; (d) Financial Statements; (e) Incumbency Certificate; and (f) Other documents as reasonably required by Lessor. 20. App~nFiaflon of Funds. (a) This paragraph applies only to Lessees designated as slate agencies defined in Section 2054.003, Texas Govcmmant Code, including institutions of higher education as defined in Texas Education Code, Section 61.003 and state agencies purchasing from a DIP, conlract through an lnteragancy Agreement, as authorized by Chapter 771, Texas Government C,ode. Lessee intends to continue each Schedule to which it is a party for the Schedule Term and to pay the Rent and other amounts due there under. Lessee reasonably believes that legally available funds in an amount sufficient to pay all Rent during the Schedule Term can bc obtained. Lessee further intends to act in good faith to do those things reasonably and lawfully within its power to obtain and maintain funds from which the Rent may be paid. Notwithstanding the foregoing, in the event sufficient funds are not appropriated to continue the Dig / Dell Marketing L.P. Master Lease A~reemmt l0 Agreement Number: 02000390 Schedule T~.u for any Fiscal Period (as set forth on the Schedule) of Lessee beyond the Fiscal Period first in effect at thc commencement of thc: Schedule Term, Lessee may ~,,inete the Schedule with regard to not less than all of the Asset(s) on thc Schedule so affected, Lessee shall endeavor to provide Lessor written notice sixty (60) days prior to the end of its current Fiscal Period confirming the Schedule will be so terminated. All obligations of Lessee to pay Rent due aRer the end of the Fiscal Period for which such termination applies will cease, all interests of Lessee in the Asset(s) will terminate and Lessee shall surrender the Asset(s) in accordance with Section 12 hercoff. Notwithstanding the foregoing, Lessee agrees, without creating a pledge, lien or encumbrance upon funds available to Lessee in other than its current Fiscal Period, that it will use reasonable efforts to obtain appropriation of funds to avoid termination of thc Schedule by taking reasonable end appropriate action including tbe inclusion in Lessee's budget request for each Fiscal Period during the Scbedulc Term hereof a request for adequate funds to meet its obligations and to continue the Schedule in force. Lessee represents and warrants it has adequate funds to meet its obligations dining the first Fiscal Period of the Schedule Term. Lessor and Lesscc understand and intend that the obligation of Lesscc to pay Rent hereunder shall constitute a esnvent expense of Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by l_~ssee, nor shall anygaing contained herein constitute a pledge of the general revenues, funds or monies of Lessee or the State of Texas beyond the Fiscal Period for which suff~cient funds have been appropriated to pay Rent hereunder. (b) This paragraph applies only to Lessees designated as local government entities. In thc event sufficient funds are ~uot appropriated for Lessee to continue the Schedule Term for any Fiscal Period (ss set forth on the Schedule] of the Lessee beyond the Fiscal Period first in effect at the commencement of the Schedule Tcrm, the Lessee may terminate the Schedule with regard to not less than all of the asset(s) on the Schedule so affected. Lessee shall endeavor to provide Lessor written notice sixty (60) days prior to the end of its current Fiscal Period conru~ing the Schedule will be Ic~.Jnated. All obligations of Lessee to pay Rent due after the end of the Fiscal Period first in effect at the commencement of the Schedule T~im will cease, all interests of Lessee in the Asset(s) will terminate end Lessee shall surrender thc Asset(s) in accordance with Section 12 hereof. 21. Miscellaneous. (a) Notices shall be conclusively deemed to have been received by a party hereto on thc day it is delivered to such party at the address given above (or at such other address as such party shall specify to the other party in writing) or, if sent by certified mail, on the third business day after the day on which mailed, addressed to such party at such address. Co) Applicable Lew/Disputcs. Thc Master Lease Agreement and each Schedule SHAIJ. BE GOVERNED BY AND CONSTRUED IN ACCOEDANCE WITH THE LAWS OF THE STATE OF TEXAS. In the event of a dispute between the parties suit may be brought in the federal or state courts where Lessee has its principal office or where the Asset(s) are located. (c) Counterparts. Only ori~inai cotmterpart No, 1 of each Schedule shall be deemed to be 'an "Original" for chattel paper purposes under the Uniform Commercial Code. Any and all other counterparts shall be deemed to be a "Copy". NO SECLrRITY INI'ItREST IN THIS MASTER LEASE AGREEMENT, IN ANY OF TttE SCHEDULE (S), OR IN ANY OF THE ASSETS MAY BE CREATED, TRANSFERRED, ASSIGNED OR PERFECTED BY THE TRANSFER AND POSSESSION OF THIS MASTER LEASE AGREEMENT ALONE OR OF ANY "COPY'" OF THE SCHEDULE, BUT RATHER SOLELY BY THE TRANSFER AND POSSESSION OF THE "ORIGINAL" COUNTERPART OF THE SCH~ULE INCORPORATING THIS MASTER LEASE AGREEMENT BY REFERENCE. DIR / Dell Marketing L.P. Master Lease Agreement II Agreement Number: 02000390 (d) Suspension of Obligations of Lessor. Prior to delivery of any Asset, the obligations of Lessor hereunder shall be suspended to the extent that it is hindered or prevented from performing because of causes beyond its control. (c) Scvcrability. In the event any provision of thc Master Lease Agrccraent or any Schedule shall be determined by a court of competent jurisdiction to bc invalid or unenforceable, the parties hereto agree that such provision shall be ineffective without invalidating thc remaining provision thereof. (f) Entire Agreement. Lessor end Lessee acknowledge that there are no agreements or ondcrstandings, written or oral, between them with respect to the Asset(s), other than as set forth in this Master Lease Agreement and in each Schedule to which Lessee is a signatory party. Lessor and Lessee further acknowledge that this Master Lease Agreement and each Schedule to which Lessee is a party contain the entire agreement between Lessor and Lessee. DIR and Lessor acknowledge that there are no agreements or understandings, written or oral, between them other than as set forth in this Master Lease Agreement and that this Master Lease Agreement contains thc entire agreement between them. Neither this Master Lease Agreement nor any Schedule may be altered, modified, tea~insted, or discharged except by a writing signed by the party against whom enforcement of such action is sought. (g) Lessor Certifications. Lessor certifies (i) it has not given, offered to give, and does not intend to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discoont, trip, favor, or service to a public servant im connection with this Master Lease Agreement and Schedules executed hereunder; (ii) it is not currently delinquent in the payment of any franchise tax owed the State of Texas end is not ineligible to receive payment under Section 31.006, Family Code and acknowledges this Master Lease Agreement may be terminated amd payment withheld if this certification is inaccurate; (iii) neither it, nor anyone acting for it, has viola.ted the antitrust laws of thc United States or thc State of Texas, nor communicated directly or indirectly to any competitor or any other person engaged in such linc of business for the purpose of obtaining an unfair price advantage; (iv) it has not received payment from DIR, Lessee or any of their employees for paxticipating in the p~perafion of figs Master Lease A~rcement end the Schedule(s) hereunder, and (v) during the term of this Master Lease Agreement, it will not discriminate unlawfully against any vu~Jloyec or applicant and that, upon request it will furnish information regarding its nondiscriminatory hiring and promotion policies, as well as specific infonunfion on the composition of its principals and staff, including the identification of minorities and women in management or other positions with discretionary or decision mating authority. (h) The following paragraph applies only to Lessees designated as a State agency as defined in Section 2054.003, Texas Government Codc, including a university system or institution of higher education, end those purchasing from a DIR contract through an Interagency A/rccment, as authorized by Chapter 771, Texas Government Code. (a) To the extent that Chapter 2260 of the Texas Government Code, as it may be amended from time to time ("Clmpter 2260"), is applicable to this Agreement end is not pre=mpted by other applicable law, thc dispute resolution process provided for in Chapter 2260, and roles promulgated there under shall be used by thc Lessee end Lessor to atiernpr to resolve any claim for breach of contract made by Lessor. (i) DIP. Contract Administrator. DIP, shall appoint a contract administrator whose duties shall include but not be limited to the following: A. Facilitating dispute resolution between the Lessor and Lessee. Unresolved disputes shall be presented to DIP. for rcsolufion; and DIIR / Dell Marketinl L.P. Master Lease Agreement 12 Agreement Number: 02000390 B. Advising DIR regarding Lessor's performance under thc terms and conditions of the conlract; (j) Lessor Contract Administrator,. Lessor shall appoint a primary representative to work with the DIP. Contract Administrator to maintaim, support, and market this conlract. DIP, reserves the right to require a change in Lessor's tben-current primary representative if the assigned representative is not, in thc opinion of DIR, serving the needs of the State of Texas and the Lessees adequately. The DIR Contract Adminislretor will escalate to Lessor manal~ernent any unresolved issues, before a change in Lessor's~en-currcnt representative is requested by DIR. /~J~[0~ ~(~ ~l/~.- g//~'c Less~e's Waivers. To the extent permitted by applica~ble law, Lessee hereby waives the following rights and remedies confcrred upon Lessee by the Uniform Commerci~al Code: to (i) cancel any Schedule under the Agreement; (ii) repudiate any Schedule; (iii) reject the Asset(s); (iv) r~voke acceptance of the Asset(s); (v) recover damages from Lessor for any breach of warranty by the manufacturer or supplier of the Asset(s); (vi) claim a security interest in the Asset(s) in Lessee's possession or control for any ~eason; (vii) deduct all or any part of any claimed damages resulting from Lessor's default, ff any, under any Schedule; (vi'fi) accept partial delivery of the Asset(s); (ix) "cover" by making any purchase or lease of or contract to purchase or lease equipment in substitution for the Asset(s) duc ~ Lessor; (x) recover any special, punitive, incidental or consequential damages, for any reason whatsoever. 23. UCC Filinns. Lessor and Lessee a~rec that a reproduction of this Lease may be filed as a financing statement and shall be sufllcicnt as a financing statement under the Uniform Commercial Code. Lessee irrevocably appoints Lessor, its' officers and ei-~ployees, as Lessec's attorney-in-fact, with full power in Lessor's and Lessec's name to execute and file all such financing statements and o~her documents as Lessor decma necessary or advisable hereunder. Lessee shall execute or obtain and deliver to Lessor, upon Lcssor's request, such instruments, financing statemants and assurances, as Lessor deems necessary or advisable for the protection or perfection of this Lease and Lessor's rights hereunder and will pay all costa incidcnt thereto. 24. Mnx'im~lm Rate. We both intend to comply with all applicablc laws. We intend for each Lease to constitute a "true lease" of Asset(s) under all applicable law. If in~ any event, we should receive anything of value under the Lease deemed interest under any applicable law, which interest would exceed the maximum amount of interest allowed, then any excess interest collected shall be applied to repayment of principal in inverse order of maturity, and interest will be charged at the highest rate permitted blY law, with any excess l~maining being refunded to you. It is our express intent uot to violate any applicable usmry laws and in no event will we charge or receive, nor will you pay, any amounts in excess of the legal amount. 25. Hnndlinn of Written Comulain~s. In addition to other remedies contained in this Conlract, a person contracting with DIR may direct thcir written complaints to the following office: DIP. / Dell Marketing LP. Master Lease Agreement 13 ~greement Number: 02000390 Public Information Oflitce Depsrtm~nt of Informs~ion Resources Aim: Mstt Kelly 300 W. 15~ Street, Suit~ 1300 Austin, TX 78701 (512) 936-6550, voice (512) 475-4759, f~x Emsil: rrmtt.keily~dir.state.tx.us 26. Amendments. The Master Lease Agreement may be ~ded only by wriimn instrument executed by Dell Marketing, LP snd DIR. IN WITNESS WHEREOF, Lessor and Lessee have csused this Master Lease Agreement to be executed by their duly authorized representatives. DELL MARKETING, L.P. STATE OF TEXAS, ACTING BY AND THROUGH TUE~ DEPARTMENT OF INFORMATION RESOURCES NAME: Patrick W. Hogan TITLE: DATE: ~ ~o~ DATE: TITLE: Director of Business O~)eratious Division LEGAL: DIR / D~II Marketing L.P. M~ter Le~c Agr~ment 14 Exhibit A DELIVERY & ACCEPTANCE CERTIFICAT~ OF UNCONDITIONAL ACCEPTANCE LEASE #: DATED AS OF: BETWEEN Dell Marketing L.P. AS LESSOR, AND T~E UNDERSIGNED LESSEE The undersigned Lessee hereby acknowledges receipt and acceptance of the Equipment described in the above referenced Lease Agreement and/or ADD-ON Schedule, AS IS and WHERE IS on the date hereof, and represents that it is in good working condition, and LESSEE HEREBY UNCONDITIONALLY ACCEPTS THE EQU~MENT AFTER FULL INSPECTION THEREOF, as satisfactory for all purposes under the Lease. Lessee certifies that the Lessor has fully and satisfactorily performed all covenants and conditions to be p~'formcd by and under the Lease as it relates to such equipment and has delivered the Equipment selected solely by the Lessee in accordance with the LeSsee's directions. Lessee agrees that the Lessor has made and makes NO REPRESENTATIONS OR WARRANTIES OR ANY KIND OF NATURE, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING TH~ SUITABILITY OF SUCH ~QU~MENT, ITS DURABILITY, ITS FITNESS FOR ANY PARTICULAR PURPOSE, ITS MERCHANTABILITY, ITS CONDITION, AND/OR ITS QUALITY AND AS B~ETWEEN LESSEE AND LESSOR OR LESSOR'S ASSIGNEE ACCEPTS TI-F~ EQUIPMENT AS IS, and lessee affirms that it has no defense or counterclaims against Lessor in connection with the Lease Agreement. Lessee certifies that the Equipment has not been placed in service prior to the date hereof. This Certificate shall not be considered to alter or amend the terms of the Lease. "Lessee" Dated: Signed By: Tit]e: