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(f) Lessee is in default under any other lease, contract, or obligation now
<br />existing or hereafter entered into with Lessor or Seller or any assignee of
<br />Lessor,
<br />14. REMEDIES; TERMINATION
<br />(a) Upon an Event of Default under any Schedule all of Lessee's rights
<br />(including its rights to the Products), but not its obligations thereunder,
<br />shall automatically be cancelled without notice and Lessor may exercise
<br />one or more of the following remedies in its sole discretion:
<br />(i) require Lessee to return any and all such Products in
<br />accordance with Section 8, or if requested by Lessor, to assemble the
<br />Products in a single location designated by Lessor and to grant Lessor the
<br />right to enter the premises where such Products are located (regardless of
<br />where assembled) for the purpose of repossession;
<br />(ii) sell, lease or otherwise dispose of any or all Products (as agent
<br />and attorney -in -fact for Lessee to the extent necessary) upon such terms
<br />and in such manner (at public or private sale) as Lessor deems advisable
<br />in its sole discretion (a "Disposition");
<br />(III) declare immediately due and payable as a pre -estimate of
<br />liquidated damages for loss of bargain and not as a penalty, the
<br />Stipulated Loss Value of the Products in lieu of any further Rent, in which
<br />event Lessee shall pay such amount to Lessor within 10 days after the
<br />date of Lessor's demand; or
<br />(iv) proceed by appropriate court action either at law or in equity
<br />(including an action for specific performance) to enforce performance by
<br />Lessee or recover damages associated with such Event of Default or
<br />exercise any other remedy available to Lessor in law or in equity.
<br />(b) Lessee shall pay all costs and expenses arising or incurred by
<br />Lessor, including reasonable attorney fees, in connection with or related
<br />to an Event of Default or the repossession, transportation, re -furbishing,
<br />storage and Disposition of any or all Products ("Default Expenses"). In
<br />the event Lessor recovers proceeds (net of Default Expenses) from its
<br />Disposition of the Products, Lessor shall credit such proceeds against the
<br />owed Stipulated Loss Value. Lessee shall remain liable to Lessor for any
<br />deficiency. With respect to this Section, to the extent the proceeds of the
<br />Disposition (net of Default Expenses) exceed the Stipulated Loss Value
<br />owed under the Lease, or Lessee has paid Lessor the Stipulated Loss
<br />Value, the Default Expenses and all other amounts owing under the
<br />Lease, Lessee shall be entitled to such excess and shall have no further
<br />obligations with respect to such Lease. All rights of Lessor are cumulative
<br />and not alternative and may be exercised by Lessor separately or
<br />together.
<br />15. QUIET ENJOYMENT.
<br />Lessor shall not interfere with Lessee's right to possession and quiet
<br />enjoyment of Products during the relevant Lease Term, provided no Event
<br />of Default has occurred and is continuing. Lessor represents and
<br />warrants that as of the Commencement Date of the applicable Schedule,
<br />Lessor has the right to lease the Products to Lessee.
<br />16. INDEMNIFICATION.
<br />To the extent permitted by law, Lessee shall indemnify, defend and hold
<br />Lessor, its assignees, and their respective officers, directors, employees,
<br />representatives and agents harmless from and against, all claims,
<br />liabilities, costs or expenses, including legal fees and expenses
<br />(collectively, "Claims"), arising from or incurred in connection with this
<br />Agreement, any Schedule, or the selection, manufacture, possession,
<br />ownership, use, condition, or return of any Products (including Claims for
<br />personal injury or death or damage to property, and to the extent Lessee
<br />is responsible, Claims related to the subsequent use or Disposition of the
<br />Products or any data in or alteration of the Products. This indemnity shall
<br />not extend to any loss caused solely by the gross negligence or willful
<br />misconduct of Lessor. Lessee shall be responsible for the defense and
<br />resolution of such Claim at its expense and shall pay any amount for
<br />resolution and all costs and damages awarded against or incurred by
<br />Lessor or any other person indemnified hereunder; provided, however,
<br />that any person indemnified hereunder shall have the right to participate
<br />in the defense of such Claim with counsel of its choice and at its expense
<br />and to approve any such resolution. Lessee shall keep Lessor informed
<br />at all times as to the status of the Claim.
<br />17. OWNERSHIP; LIENS AND ENCUMBRANCES; LABELS.
<br />As between Lessor and Lessee, title to Products (other than any Licensed
<br />Materials) is and shall remain with Lessor. Products are considered
<br />personal property and Lessee shall, at Lessee's expense, keep Products
<br />free and dear of liens and encumbrances of any kind (except those
<br />arising through the acts of Lessor) and shall immediately notify Lessor if
<br />Lessor's interest is subject to compromise. Lessee shall not remove,
<br />cover, or alter plates, labels, or other markings placed upon Products by
<br />Lessor, Seller or any other supplier.
<br />18. NONPERFORMANCE BY LESSEE.
<br />If Lessee fails to perform any of its obligations hereunder or under any
<br />Schedule, Lessor shall have the right but not the obligation to effect such
<br />performance and Lessee shall promptly reimburse Lessor for all out of
<br />pocket and other reasonable expenses incurred in connection with such
<br />performance, with interest at the Overdue Rate.
<br />19. NOTICES.
<br />All notices shall be given in writing and, except for billings and
<br />communications in the ordinary course of business, shall be delivered by
<br />overnight courier service, delivered personally or sent by certified mail,
<br />return receipt requested, and shall be effective from the date of receipt
<br />unless mailed, in which case the effective date will be four (4) Business
<br />Days after the date of mailing. Notices to Lessor by Lessee shall be sent
<br />to: Dell Financial Services L.L.C., Attn. Legal Department, One Dell Way,
<br />Round Rock, TX 78682, or such other mailing address designated in
<br />writing by Lessor. Notice to Lessee shall be to the address on the first
<br />page of this Agreement or such other mailing address designated in
<br />writing by Lessee.
<br />20. ASSIGNMENT.
<br />(a) LESSEE MAY ASSIGN THIS AGREEMENT OR ANY SCHEDULE,
<br />OR SUBLEASE ANY PRODUCT(S) WITH THE PRIOR WRITTEN
<br />CONSENT OF LESSOR (SUCH CONSENT NOT TO BE
<br />UNREASONABLY WITHHELD). LESSOR, AT ITS SOLE DISCRETION,
<br />MAY ASSESS AN ADMINISTRATIVE FEE FOR ANY APPROVED
<br />ASSIGNMENT OR SUBLEASE. No assignment or sublease shall in any
<br />way discharge Lessee's obligations to Lessor under this Agreement or
<br />Schedule.
<br />(b) Lessor may at any time without notice to Lessee, but subject to the
<br />rights of Lessee, transfer, assign, or grant a security interest in any
<br />Product, this Agreement, any Schedule, or any rights and obligations
<br />hereunder or thereunder in whole or in part. Lessee hereby consents to
<br />such assignments, agrees to comply fully with the terms thereof, and
<br />agrees to execute and deliver promptly such acknowledgments, opinions
<br />of counsel and other instruments reasonably requested to effect such
<br />assignment.
<br />(c) Subject to the foregoing, this Agreement and each Schedule shall be
<br />binding upon and inure to the benefit of Lessor, Lessee and their
<br />successors and assigns.
<br />21. GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF
<br />JURY TRIAL.
<br />THIS AGREEMENT AND EACH SCHEDULE SHALL BE GOVERNED BY
<br />INDIANA LAW WITHOUT REGARD TO ITS CONFLICTS OF LAWS
<br />PRINCIPLES AND, TO THE EXTENT APPLICABLE, THE ELECTRONIC
<br />SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.
<br />LESSEE CONSENTS TO THE JURISDICTION OF ANY FEDERAL
<br />COURT LOCATED IN ST JOSEPH COUNTY, INDIANA, AND WAIVES
<br />ANY OBJECTION TO VENUE IN SUCH COURT, AND FURTHER
<br />WAIVES ANY RIGHT TO A TRIAL BY JURY.
<br />22. MISCELLANEOUS.
<br />Reference: 1844711999.60992 Page 4 of 6
<br />Masler Lease AorP.P.nIP.nt • Puhlic Nnv7n1R
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