PORTFOLIO PURCHASE AGREEMENT
between STORAGE TECHNOLOGY CORPORATION and
LEASETEC CORPORATION
Dated March 20, 1996
TABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . .-1-
TERMS OF AGREEMENT . . . . . . . . . . . . . . . . . . . .-1-
1. PURCHASE AND SALE . . . . . . . . . . . . . . . . . .-1-
1.1. Purchased Assets . . . . . . . . . . . . . . . .-1-
1.2. Assumed Liabilities. . . . . . . . . . . . . . .-2-
1.3. Non-Assignable Leases. . . . . . . . . . . . . .-2-
2. PURCHASE PRICE AND NET PURCHASE PRICE . . . . . . . .-3-
2.1. Purchase Price . . . . . . . . . . . . . . . . .-3-
2.2. Net Purchase Price . . . . . . . . . . . . . . .-3-
2.3. Effective Date Calculations. . . . . . . . . . .-3-
2.4. Taxes. . . . . . . . . . . . . . . . . . . . . .-3-
3. CLOSING . . . . . . . . . . . . . . . . . . . . . . .-3-
3.1. Closing Date . . . . . . . . . . . . . . . . . .-3-
3.2. Payment on the Closing Date. . . . . . . . . . .-3-
3.3. Leasetec's Deliveries. . . . . . . . . . . . . .-4-
3.4. StorageTek's Deliveries. . . . . . . . . . . . .-4-
4. INCORPORATED TERMS/DEFINITIONS. . . . . . . . . . . .-5-
5. REPRESENTATIONS AND WARRANTIES BY STORAGETEK. . . . .-5-
6. REPRESENTATIONS AND WARRANTIES BY LEASETEC/CLAIMS
BY LEASETEC. . . . . . . . . . . . . . . . . .-7-
7. ADOPTION BY SUBSIDIARIES/AFFILIATES . . . . . . . . .-7-
8. ARBITRATION . . . . . . . . . . . . . . . . . . . . .-8-
8.1. Arbitration Generally. . . . . . . . . . . . . .-8-
8.2. Actual Damages . . . . . . . . . . . . . . . . .-8-
8.3. Equitable Relief . . . . . . . . . . . . . . . .-8-
8.4. No Disclosure. . . . . . . . . . . . . . . . . .-8-
8.5. Prior Notice . . . . . . . . . . . . . . . . . .-8-
9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . -8-
9.1. Further Actions. . . . . . . . . . . . . . . . -8-
9.2. Modification . . . . . . . . . . . . . . . . . -8-
9.3. Limitation of Liability. . . . . . . . . . . . -9-
9.4. Notices. . . . . . . . . . . . . . . . . . . . -9-
9.5. Nature of Relationship . . . . . . . . . . . . -9-
9.6. Interest on Overdue Payments . . . . . . . . . -9-
9.7. Severability . . . . . . . . . . . . . . . . . -9-
9.8. Governing Law. . . . . . . . . . . . . . . . . -9-
9.9. Entire Agreement . . . . . . . . . . . . . . .-10-
9.10. Counterparts. . . . . . . . . . . . . . . . . -10-
9.11. Headings. . . . . . . . . . . . . . . . . . . -10-
9.12. Expenses. . . . . . . . . . . . . . . . . . . -10-
9.13. Effect. . . . . . . . . . . . . . . . . . . . -10-
EXHIBIT A - COUNTRY PORTFOLIO APPENDIX. . . . . . . . .A-1
EXHIBIT B - BILL OF SALE AND ASSIGNMENT . . . . . . . .B-1
PORTFOLIO PURCHASE AGREEMENT THIS AGREEMENT is entered
into and effective as of March 20, 1996 by and between STORAGE
TECHNOLOGY CORPORATION ('StorageTek'), and LEASETEC CORPORATION
('Leasetec'). It is intended that this Agreement will be adopted by the
respective subsidiaries of StorageTek and Leasetec with respect to the
Designated Territories with such modifications as may be agreed by the
respective subsidiaries.
RECITALS
A. Leasetec Corporation, as parent, and Storage Technology Corporation, as
parent, have entered into a Stock Purchase Agreement, under which
Leasetec Corporation will purchase all of the issued and outstanding
shares of StorageTek Financial Services Corporation ('SFSC'), which is
the subsidiary of Storage Technology Corporation which currently does
all of the leasing activity with third parties for equipment
manufactured or sold by Storage Technology Corporation in the United
States. Completion of the transaction contemplated by the Stock
Purchase Agreement will transfer to Leasetec Corporation all of Storage
Technology Corporation's U.S. leasing activity.
B. Leasetec Corporation and Storage Technology Corporation also desire
that their subsidiaries agree to transfer to Leasetec Corporation all
of Storage Technology Corporation's subsidiaries' leasing activity for
the countries in the Designated Territories, including the current
leases and/or lease receivables for StorageTek's equipment and title to
such equipment. Because leasing activity in the Designated Territories
is conducted by Storage Technology Corporation's operating subsidiary
in each country, the assets associated with such activity must be
transferred in each country by the subsidiary in that country.
C. This Agreement constitutes the basic agreement under which the
lease assets will be transferred in each country, by Storage Technology
Corporation's subsidiary to Leasetec Corporation's subsidiary. No
assets or liabilities of Storage Technology Corporation are being
transferred hereunder. It is intended that this Agreement will be
adopted by the subsidiaries in each of the Designated Territories with
appropriate modifications as agreed by such subsidiaries.
TERMS OF AGREEMENT
1. PURCHASE AND SALE
1.1. Purchased Assets. Upon the terms and subject to the conditions of
this Agreement, on the Closing Date, StorageTek shall sell,
transfer, assign, convey and deliver to Leasetec, and Leasetec
shall purchase from StorageTek, all right, title and interest of
StorageTek in, to and under:
(A) subject to Section 1.3, all of StorageTek's Leases identified
in the individual Country Portfolio Appendices;
(B) all files relating to such Leases;
(C) the Equipment sold hereunder or leased pursuant to the Leases
and identified in the individual Country Portfolio
Appendices, together with a license to the internal code in
such Equipment;
(D) all Proceeds derived or produced from or generated with
respect to such Equipment and Leases (including without
limitation sale proceeds, Rental Payments, insurance
proceeds, Financed Software fees and Financed Service Fees,
but not including other maintenance or software fees) from
and after the Effective Date; and
(E) the Assumed Debt Documents related to the Assumed Debt as of
the Effective Date for which StorageTek has obtained from the
applicable lenders, and delivered to Leasetec, consents as
contemplated by Section 3.4(f).
The assets referred to in this Section are collectively referred to as
the 'Purchased Assets.' Notwithstanding the transfer of such Purchased
Assets to Leasetec, Leasetec agrees that it shall do nothing to prevent
StorageTek from performing its obligations with respect to such Purchased
Assets.
1.2. Assumed Liabilities. On the Closing Date, Leasetec shall deliver
to StorageTek the assumption agreements pursuant to which Leasetec
shall assume and agree to pay, perform or otherwise discharge, in
accordance with their respective terms and subject to the
respective conditions thereof, all the liabilities and obligations
of StorageTek to be paid or performed after the Effective Date
under the Assumed Debt Documents for Assumed Debt identified in
Schedule C to each Country Portfolio Appendix.
1.3. Non-Assignable Leases. Notwithstanding anything to the contrary
appearing elsewhere herein, StorageTek does not assign or transfer
(i) any Lease which is not assignable by the lessor; or (ii) any
Lease requiring consent of the Obligor for assignment by the
lessor, unless in either case a written consent of the Obligor is
now or hereafter delivered to Leasetec (all such Leases prior to
delivery of an Obligor consent being called the ('Non-Assigned
Leases'). In lieu of such assignment and transfer, StorageTek
assigns to Leasetec all Payments when collected under the Non-
Assigned Leases, and authorizes Leasetec to bill and collect all
such Payments, and undertakes to deliver to Leasetec any such
Payments which StorageTek receives.
With respect to Leases which are not assignable or are only
assignable with Obligor's consent, StorageTek indemnifies SFSC and
its Transferees under the terms of Section 8.2(b) of the Operating
Agreement for any claim, loss, cost, damage or expense suffered or
incurred as a result or arising out of the lack of ownership and
lack of a security interest in such Leases and the inability to
enforce the terms of such Leases against the Obligors.
2. PURCHASE PRICE AND NET PURCHASE PRICE.
2.1. Purchase Price. The purchase price shall be as identified in each
Country Portfolio Appendix ('Purchase Price') of the Country
Portfolio Appendices (the 'Purchase Price').
2.2. Net Purchase Price. Net Purchase Price shall be the Purchase
Price less the principal amount of the Assumed Debt as of the
Effective Date.
2.3. Effective Date Calculations. The Purchase Price for the Purchased
Assets is calculated as of the Effective Date. There are no
adjustments to be made to the Purchase Price. Leasetec is
entitled to all Payments and other Proceeds from the Leases and
Equipment which are attributed to periods after the Effective
Date. StorageTek is entitled to all such Payments and other
Proceeds which are attributed to periods before the Effective
Date. All Assumed Debt becomes the responsibility of Leasetec as
of the day following the Effective Date; and all sales, use and
other taxes which are assessed on or concerning the Equipment and
Leases on or after the day following the Effective Date are the
responsibility of Leasetec, except as otherwise provided herein or
in the Operating Agreement.
2.4. Taxes. Leasetec acknowledges that it is liable for and that the
Purchase Price for Equipment, Financed Software and Financed
Services purchased hereunder will be exclusive of any applicable
sales, use, VAT, transfer, property, and/or other taxes howsoever
designated or levied upon the sale, delivery or use of the related
products. Leasetec shall be responsible for, and shall indemnify
and hold harmless StorageTek from and against, reporting and
payment of any and all such taxes, interest and penalties;
provided Leasetec is responsible and indemnifies for only those
property taxes which are assessed on Equipment after its title
passes to Leasetec. The parties agree to cooperate to minimize
the incidence of tax on the Equipment, Financed Software and
Financed Services, their purchase and financing hereunder, their
ownership, possession, use, or lease, and this Agreement.
Leasetec will reimburse StorageTek for any such taxes which
StorageTek is required to pay a taxing authority.
3. CLOSING.
3.1. Closing Date. The closing shall be occur under each Country
Portfolio Appendix as agreed with respect to time and date by the
parties, but no later than March 27, 1996. The time and date on
which the closing is actually held is sometimes referred to herein
as the 'Closing Date.'
3.2. Payment on the Closing Date. On the Closing Date, Leasetec shall
pay to StorageTek an amount equal to the Net Purchase Price, plus
interest on the Net Purchase Price, computed at a rate of 7% per
annum from the Effective Date through the Closing Date, by wire
transfer of immediately available funds to the account specified
in the applicable Country Portfolio Appendix.
3.3. Leasetec's Deliveries. On the Closing Date, Leasetec shall
deliver to StorageTek all the following:
(A) Certificate of the Secretary or an assistant secretary of
Leasetec, dated the Closing Date, in form and substance
reasonably satisfactory to StorageTek, as to (i) the resolutions
of the Board of Directors (or a duly authorized committee
thereof) of Leasetec authorizing the execution and performance
of this Agreement and the transactions contemplated hereby
(including a copy thereof); and (ii) incumbency and signature
certificates for the officers of Leasetec executing this
Agreement, the applicable Country Portfolio Appendix and any
ancillary agreements;
(B) An assumption agreement with respect to Assumed Debt duly
executed by Leasetec;
(C) The Transition Agreement and the Operating Agreement, each
duly executedby SFSC, and appropriate Appendices for the
relevant Designated Territories; and
(D) Such other instruments and documents as may be reasonably
required in the applicable Country Portfolio Appendix.
3.4. StorageTek's Deliveries. On the Closing Date, StorageTek shall
deliver to Leasetec all of the following:
(A) Certificate of the Secretary or an assistant secretary of
StorageTek, dated the Closing Date, in form and substance
reasonably satisfactory to Leasetec, as to (i) the
resolutions of the Board of Directors (or a duly authorized
committee thereof) of StorageTek authorizing the execution
and performance of this Agreement and the transactions
contemplated hereby (including copies thereof); and (ii)
incumbency and signature certificates for the officers of
StorageTek executing this Agreement, the applicable Country
Portfolio Appendix and any ancillary agreements;
(B) A Bill of Sale and Assignment (unless waived by Leasetec for
a particular Designated Territory) duly executed by
StorageTek in the form attached hereto as Exhibit B or as
otherwise agreed by StorageTek and Leasetec. If the Bill of
Sale and Assignment is waived, the provisions set forth in
Exhibit B shall be deemed included in the Invoice issued by
StorageTek to Leasetec for the Leases and Equipment;
(C) A Limited Power of Attorney duly executed by StorageTek in a
form mutually acceptable to StorageTek and Leasetec;
(D) The Transition Services Agreement and the Operating
Agreement, each duly executed by StorageTek, and appropriate
Appendices for the relevant Designated Territories, together
with consents to the assignment of any Assumed Debt and the
related Assumed Debt documents;
(E) The additional items required for the Closing Package as
applicable for the Purchased Assets;
(F) The Assumed Debt Documents; and
(G) Such other instruments and documents as may be reasonably
required in the applicable Country Portfolio Appendix.
4. INCORPORATED TERMS/DEFINITIONS.
4.1. Sections 3.3, 3.6, 3.7, 3.8, 3.9, 3.11, 3.12, 7.1, 7.2, 7.3, 7.4,
8.2, 8.3, 9.1, 9.2, and 9.3 of the Operating Agreement between
StorageTek and SFSC apply to the sale and assignment of the
Purchased Assets hereunder, such terms and conditions of the
Operating Agreement being incorporated herein by this reference.
The terms and conditions of the abovereferenced sections of the
Operating Agreement shall apply to the Equipment purchased and
Leases assigned hereunder.
4.2. Unless otherwise provided herein, capitalized terms used herein
shall have the definitions set forth in the Operating Agreement.
The references to 'SFSC' in the Operating Agreement, including the
Glossary attached thereto, shall be deemed to mean Leasetec for
the purposes of this Agreement.
4.3. For purposes of the transactions contemplated by this Agreement,
the provisions of the Operating Agreement Section 3.3 (Closing
Package) is amended by the addition of clauses (j) and (k) to read
as follows:
(j) Notice Letter in the form of Exhibit C attached hereto for
each Lease assigned, such letter to be signed by StorageTek
but undated. (This letter may be delivered by SFSC to the
Obligor at such time as SFSC undertakes billing and
collection with respect to the related Lease pursuant to the
Operating Agreement.)
(k) Releases of all liens, encumbrances and other security
interests on the Equipment and Leases, unless the same are
related to Assumed Debt.
5. REPRESENTATIONS AND WARRANTIES BY STORAGETEK. As an inducement to
Leasetec to enter into this Agreement and to consummate the transactions
contemplated hereby, and without limiting the applicability of the Operating
Agreement as aforesaid, StorageTek represents and warrants to Leasetec as
follows:
5.1. StorageTek has no actual knowledge of any material breach by an
Obligor of any of its material obligations under the Lease, except
as have been previously disclosed to Leasetec in writing.
5.2. StorageTek does not require the approval, consent or waiver of any
party (including its lenders) to enter into this Agreement and
sell Equipment hereunder, other than any such consents and
approvals that have been or will be obtained as of the Closing
Date.
5.3. StorageTek has the absolute right to assign all of the Leases to
Leasetec; each Lease is duly authorized and validly executed by
the Obligor and constitutes a legally valid, binding and
effective agreement enforceable against such Obligor in accordance
with its terms; each Lease constitutes the entire understanding
between StorageTek and the Obligor with respect to the lease of
the Equipment and has not been modified in any way, revoked, or
rescinded and remains in full force and effect.
5.4. All of the executed originals (whether manually signed or carbon
originals) of each Lease have been delivered to Leasetec (other
than those executed originals of the Lease in Obligor's
possession).
5.5. Upon the assignment of the Leases to Leasetec, Leasetec will
acquire good and marketable title to such Leases, free and clear
of all liens, security interests and encumbrances, except for the
interest of the Obligor under the applicable Lease and any
security interest identified in Exhibit A to the applicable
Country Portfolio Appendix; and there are no taxes with respect to
the Equipment which are due and unpaid, other than those arising
as a result of the sale of the Equipment hereunder, and such title
shall effectively pass and shall be effectively evidenced by the
Bill of Sale and Assignment and any other documents reasonably
required by Leasetec.
5.6. There are no filings, recordings or registrations (including,
without limitation, UCC and PPSA filings and registrations of
charges) now in effect which evidence, indicate or provide notice
of any claims, liens, encumbrances or other security interests on
or against the Equipment, the Leases, this Agreement or the
proceeds of any of them, except (i) those security interests for
which releases (satisfactory in form and substance to Leasetec)
have been delivered herewith and (ii) those security interests
identified in Exhibit A to the applicable Country Portfolio
Appendix. If any filings, recordings or registrations are found
to exist in violation of the foregoing warranty, StorageTek will
exercise best efforts to obtain their release as soon as possible
after they are discovered; but notwithstanding such efforts and
any resultant releases, any claim, loss, cost, damage or expense
incurred by SFSC as a result of such filings, recordings or
registrations are subject to the indemnity under Section 8.2 of
the Operating Agreement.
6. REPRESENTATIONS AND WARRANTIES BY LEASETEC/CLAIMS BY LEASETEC. As an
inducement to StorageTek to enter into this Agreement and to consummate the
transactions contemplated hereby, Leasetec represents and warrants to
StorageTek as follows:
6.1. It is a corporation duly organized, validly existing and duly
qualified to conduct its business as it is presently conducted in
such jurisdictions in the United States where the failure to so
qualify would have a material adverse impact on the business of
the corporation or the enforceability of this Agreement, and has
full corporate power to enter into this Agreement and to carry out
the transactions contemplated hereby.
6.2. The execution and delivery of this Agreement and the performance
by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action and this Agreement
constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, subject to any bankruptcy, insolvency
or similar laws.
6.3. Neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby will conflict
with or result in a breach of any other agreement or instrument to
which it is a party or by which it is bound or be in violation or
default of any applicable statute, rule, regulation or decree of
any court, administrative agency or governmental body to which it
may be subject; except for conflicts, breaches, violations or
defaults which would not (i) have a material, adverse affect on
the business of Leasetec; or (ii) restrict Leasetec's ability to
perform this Agreement.
6.4. Leasetec may not make any claim for damages due to the breach of
any warranty by StorageTek hereunder except to the extent Leasetec
has been either unable after reasonable efforts to collect monies
due under a lease, or secure rights to Equipment and such
inability is due to StorageTek's breach. Leasetec will not make
any such claims until the aggregate amount of such claims
(domestically and internationally) reaches $100,000.00. Each time
such claims aggregate to that amount, Leasetec ma;y invoice
StorageTek or its appropriate subsidiaries for the amounts of such
claims and thereafter pursue its legal rights with respect to such
claims.
7. ADOPTION BY SUBSIDIARIES/AFFILIATES. Each party agrees to arrange for
the adoption of the terms and conditions of this Agreement for their lease
financing programs, Equipment sales and operations in the Designated
Territories. The subsidiaries and affiliates of the parties in the
Designated Territories will adopt this Agreement by execution of a Country
Appendix in the form of Exhibit A hereto, with such additions and changes as
local law necessitates.
8. ARBITRATION.
8.1. Arbitration Generally. Subject to Sections 8.2 through 8.5, any
controversy or claim arising out of or relating to this Agreement
or the breach thereof will be settled by arbitration before three
arbitrators in accordance with the Rules or the American
Arbitration Association ('AAA') then in effect, and judgment upon
the award rendered by the arbitrators may be entered in any court
having jurisdiction. Any such arbitration will be conducted in
the city nearest Leasetec's main U.S. office having an AAA
regional office. The arbitrators will be selected from a panel of
persons having experience with and knowledge of electronic
computers and the computer leasing business, and at least one of
the arbitrators selected will be an attorney.
8.2. Actual Damages. The arbitrators will have no authority to award
punitive damages nor any other damages not measured by the
prevailing party's actual damages, and may not, in any event, make
any ruling, finding or award that does not conform to the terms
and conditions of this Agreement. Where a specific exclusive
remedy (such as repurchase of Equipment) is provided herein, that
remedy shall be awarded, regardless of any determination of actual
damages.
8.3. Equitable Relief. Either party, before or during any arbitration,
may apply to a court having jurisdiction for a temporary
restraining order or preliminary injunction where such relief is
necessary to protect its interests pending completion of the
arbitration proceedings. Arbitration will not be required for
actions for recovery of specific property such as replevin.
8.4. No Disclosure. Except as required by law, neither party nor the
arbitrators may disclose the existence or results of any
arbitration hereunder without the prior written consent of both
parties.
8.5. Prior Notice. Prior to initiation of arbitration or any other
form of legal or equitable proceedings, the aggrieved party will
give the other party written notice by certified mail, return
receipt requested, to the address set forth in Section 9.4,
describing the claim and amount as to which it intends to initiate
action.
9. MISCELLANEOUS.
9.1. Further Actions. Each party will take such actions and execute,
acknowledge and deliver all further instruments and assurances
reasonably requested by the other party in order to give effect to
or to more fully perfect the purchase of Equipment hereunder and
provisions hereof.
9.2. Modification. The terms of this Agreement may not be altered,
except by written agreement of Leasetec and StorageTek.
9.3. Limitation of Liability. IN NO EVENT SHALL STORAGETEK OR LEASETEC
BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY
BREACH OF THIS AGREEMENT OR OBLIGATIONS UNDER THIS AGREEMENT UNDER
ANY LEGAL THEORY, WHETHER OR NOT THE PARTY CHARGED WAS MADE AWARE
OF THE POSSIBILITY OF THEIR OCCURRENCE. NO ACTION ARISING OUT OF
ANY CLAIMED BREACH OF THIS AGREEMENT OR TRANSACTIONS UNDER THIS
AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN THREE (3) YEARS
AFTER THE CAUSE OF ACTION HAS OCCURRED.
9.4. Notices. Any notices or other communication with respect to the
matters set forth in this Agreement shall be in writing and shall
be delivered to the parties at the following addresses, or such
other address or addresses as may be specified in a notice served
in accordance herewith:
To Leasetec: Leasetec Corporation
1401 Pearl Street
Boulder, Colorado 80302
Attention: President
To StorageTek: Storage Technology Corporation
2270 S. 88th Avenue
Louisville, Colorado 80028
Attention: General Counsel
Except as required in Section 8.5, all notices may be hand-
delivered to the addressee, sent by U.S. mail (postage prepaid),
or sent by a nationally recognized overnight courier service.
9.5. Nature of Relationship. The parties acknowledge that each party
hereto shall perform its obligations hereunder as an independent
contractor, and that at no time will this Agreement be deemed to
create a partnership, joint venture or employment contract. There
shall be no restriction on StorageTek's or Leasetec's independent
business judgment, including, but not limited to, decisions
regarding selection of Obligors, pricing, market or credit
decisions.
9.6. Interest on Overdue Payments. Any non-payment of any amount due
hereunder shall result in the obligation on the part of the party
obligated to make such payment promptly to pay interest at a rate
equal to the lesser of the Prime Rate or the highest rate as may
be legally enforceable on the overdue obligations for the period
of time during which they are overdue.
9.7. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be, as to
such jurisdiction, ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
9.8. Governing Law. This Agreement shall be governed by and construed
in accordance with the law of the applicable Country Portfolio
Appendix.
9.9. Entire Agreement. This Agreement and the Exhibits hereto reflect
the complete agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior written and oral
agreements with respect to the subject matter hereof.
9.10.Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto on separate
counterparts, but all of such counterparts shall constitute a
single instrument.
9.11.Headings. The headings of Articles and Sections contained in
this Agreement are provided for convenience only. They form no
part of this Agreement and shall not affect its construction or
interpretation. All references to Sections refer to the
corresponding Sections of this Agreement unless otherwise
specified.
9.12.Expenses. Each party hereto shall bear its own legal and
professional fees and expenses incurred in the negotiation,
preparation, review and approval of this Agreement and related
documentation.
9.13.Effect. This Agreement shall take effect as of the date first
above written and shall govern the sale of the Purchased Assets as
set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their
duly authorized officers as of the date first above written.
STORAGE TECHNOLOGY CORPORATION STORAGETEK FINANCIAL
SERVICES CORPORATION
By: /s/ DAVID E. LACEY By: /s/ DAVID E. LACEY
-------------------- -----------------------
David E. Lacey David E. Lacey
Corporate Vice President Corporate Vice President
Accepted and Agreed:
LEASETEC CORPORATION
By: /s/ GEORGE M. MERRIMAN, JR.
------------------------------
George M. Merriman, Jr.
President
PORTFOLIO PURCHASE AGREEMENT EXHIBIT A
COUNTRY PORTFOLIO APPENDIX
Effective as of ___________________ 1996, ______________________ ('Seller')
and _____________________ ('Buyer') hereby agree that Seller will sell and
Buyer will buy the Purchased Assets under the terms and conditions set forth
in the Portfolio Purchase Agreement executed by Storage Technology
Corporation and Leasetec Corporation, dated _______________________, 1996
(the 'Portfolio Agreement'), subject to the following:
1. The Equipment and Leases being sold and assigned hereunder are
identified on Schedule A hereto.
2. The Closing Date shall be ______________________________.
3. The term 'StorageTek' as used in the Portfolio Agreement shall mean
Seller; and the term 'Leasetec' as used therein shall mean Buyer.
4. References in the Portfolio Agreement to the 'United States' shall
mean ______________ (name the country or countries to which this Country
Portfolio Appendix applies), hereinafter referred to as the 'Territory'.
5. For purposes of this Country Portfolio Appendix, the Portfolio
Agreement is amended as follows:_____________________________________ (if
no amendments, so state).
6. The Purchase Price for such Purchased Assets is ___________________,
the Assumed Debt is _______________ and the Net Purchase Price is
_________________.
7. The Leases and Equipment which are the subject of this Country Portfolio
Appendix are subject to certain third party interests, as described on
Schedule C. Buyer acknowledges the interests thus described and agrees to
purchase the Leases and Equipment subject to such third party interests
or, if so indicated on Schedule C, assumes and agrees to pay the debt and
perform the obligations of Seller referenced in the agreements identified
therein.
8. The official language of this Country Portfolio Appendix is English except
to the extent otherwise required by law; no amendment, order, waiver,
notice, consent or other writing shall be effective unless provided in
that language.
9. All monetary amounts under this Country Portfolio Appendix shall be
stated and paid in the lawful currency of the Territory, which is
_____________.
10. This Country Portfolio Appendix shall be binding and effective on Seller
and Buyer as of the date first set forth above.
Executed the date first written above.
- --------------------------- ----------------------------
('Seller') ('Buyer')
By: By:
Title: Title:
Schedule A to Country Portfolio Appendix
Description of Leases and Equipment
Schedule B to Country Portfolio Appendix
Wire Transfer Instructions
Schedule C to Country Portfolio Appendix
Limitations on Right to Sell Equipment; Liens on Leases and Equipment
EXHIBIT B
BILL OF SALE AND ASSIGNMENT
This Bill of Sale is given pursuant to the Portfolio Purchase Agreement dated
, 19 (the 'Portfolio Agreement') between STORAGE
TECHNOLOGY CORPORATION ('StorageTek') and LEASETEC CORPORATION ('Leasetec'),
and shall be governed by all of its terms and conditions, which are deemed
incorporated herein by this reference. All capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Portfolio
Agreement.
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, StorageTek hereby assigns, sells, transfers title and sets over
unto Leasetec all of StorageTek's right, title and interest in and to the
Leases (as described in Schedule A hereto) and all Equipment (as described in
Schedule B hereto) covered by the Leases and all Software and Service fees
included in or payable under the Leases (unless excluded in Schedule A) and the
proceeds (including insurance proceeds) of all of them, free and clear of any
claims, liens or encumbrances of any kind except the rights of the Obligors
under the Leases and the security interest of any party providing financing
arrangements referenced in Schedule C hereto. IN WITNESS WHEREOF, StorageTek
has caused this Bill of Sale and Assignment to be executed as
of , 19 .
STORAGE TECHNOLOGY CORPORATION
By: __________________________
Name:
Title: