{"id":42636,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/operating-agreement-pitney-bowes-credit-corp-and-pitney-bowes.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"operating-agreement-pitney-bowes-credit-corp-and-pitney-bowes","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/operating-agreement-pitney-bowes-credit-corp-and-pitney-bowes.html","title":{"rendered":"Operating Agreement &#8211; Pitney Bowes Credit Corp. and Pitney Bowes Office Systems"},"content":{"rendered":"<pre>                              OPERATING AGREEMENT\n\n\n                                    BETWEEN\n\n\n                        PITNEY BOWES CREDIT CORPORATION\n\n\n                                      AND\n\n\n                          PITNEY BOWES OFFICE SYSTEMS\n\n\n\n\n                              DATED AND EFFECTIVE\n\n                            AS OF SEPTEMBER 4, 2001\n\n \n                              OPERATING AGREEMENT\n\n\nTHIS OPERATING AGREEMENT dated and effective as of September 4, 2001  is made by\nand between PITNEY BOWES CREDIT CORPORATION, a Delaware corporation (\"PBCC\"),\nand PITNEY BOWES OFFICE SYSTEMS, INC. a Delaware corporation (\"Office Systems\").\n\nWHEREAS, Office Systems is in the business, inter alia, of marketing certain\nequipment, products or services  to creditworthy entities; and\n\nWHEREAS, PBCC is in the business, inter alia, of providing financing to third\nparties for the acquisition of equipment by rental, lease or lease-purchase, and\nPBCC and Office Systems have agreed to enter into a business relationship\npursuant to which PBCC will provide financing to selected customers of Office\nSystems to facilitate each such customer's acquisition of  Equipment by Lease;\nand\n\nWHEREAS, the parties desire to set forth in this Agreement the definitive terms\nand conditions on which PBCC will provide financing to Lessees through Office\nSystems' account executives, customer service representatives and other\nemployees or agents (\"Marketers\").\n\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency\nof which are acknowledged, and intending legally to be bound, Office Systems and\nPBCC hereby agree as follows:\n\n1.  CERTAIN DEFINITIONS; INTERPRETATION.  (a) Unless the context otherwise\nclearly requires, the following terms have the respective meanings set forth\nbelow for all purposes of this Agreement:\n\n\"Acceptance Certificate\" shall have the meaning assigned to such term in Section\n7(c) hereof.\n\n\"Aggrieved Party\" shall have the meaning assigned to such term in Section 23\nhereof.\n\n\"Agreement\" means this Operating Agreement between PBCC and Office Systems,\ntogether with all exhibits and attachments hereto, as each may be supplemented\nand amended from time to time in accordance with the terms hereof.\n\n\"Business Day\" means any day of the week except Saturday, Sunday or any\nstatutory or civic holiday on which banks in New York, New York or Stamford,\nConnecticut are permitted or required to close.\n\n\"Credit Request\" means a fully completed request for financing under the\nFinancing Program, made by Office Systems on behalf of a customer of Office\nSystems, and containing information relating to such customer's financial\nstatus, credit history, form of organization and such other matters as may be\ndeemed necessary by PBCC to evaluate such customer's participation in the\nFinancing Program.\n\n                                       1\n\n \n\"Defaulting Party\" shall have the meaning assigned to such term in Section 23\nhereof.\n\n\"EMA Contract\" shall have the meaning assigned to such term in Section 12(a)\nhereof.\n\n\"Effective Date\" means the later of the date set forth above and the date on\nwhich all of the legal and regulatory conditions precedent to the separation of\nOffice Systems from Pitney Bowes Inc. have been satisfied.\n\n\"Equipment\" means all of the items of equipment, firmware and software leased to\na customer of Office Systems pursuant to a Lease, as more fully described in\nsuch Lease.\n\n\"Fair Market Value\" shall have the meaning assigned to such term in Section 16\nhereof.\n\n\"Financing Program\" means the business relationship established by this\nAgreement, whereby PBCC will be the  primary exclusive provider of financing\nfor the acquisition by Lessees of Equipment, pursuant to the leasing programs\nset forth in Exhibit B, which may be modified from time to time by mutual\nagreement of the parties.\n\n\"LCR Purchase Price\" shall have the meaning assigned to such term in Section 11\nhereof.\n\n\"Lease\" means each of the rental, lease or lease-purchase contracts, together\nwith all schedules, exhibits and attachments thereto, entered into from time to\ntime by PBCC, as lessor, and a customer of Office Systems, as lessee.\n\n\"Lessee\" means each customer of Office Systems who obtains financing from PBCC\nfor its acquisition of Equipment pursuant to a Credit Request provided to PBCC\nby Office Systems.\n\n\"Marketers\" shall have the meaning assigned to such term in the recitals hereof.\n\n\"Responsible Officer\" means an individual employee of a party who is\nspecifically authorized by such party to enter into agreements and make\ndecisions on behalf of such party.  The parties acknowledge and agree that a\nResponsible Officer may be authorized only to the extent that an agreement or\ndecision relates to a particular subject matter or for a limited dollar amount.\nEach party shall designate in writing to the other the name of the designating\nparty's Responsible Officer(s).\n\n\"Standard of Conduct\" shall have the meaning assigned to such term in Section 22\nhereof.\n\n\"Targeted Service Levels\" shall have the meaning assigned to such term in\nSection 19 hereof.\n\n\"Technical Services\" shall have the meaning assigned to such term in Section 9\nhereof.\n\n\"Termination Event\" shall have the meaning assigned to such term in Section 23\nhereof.\n\n\"Transition Period\" means, with respect to the performance of any of the\nobligations of a party hereunder, the period from the Effective Date through\nDecember 31, 2001 or such later date as the parties may agree is applicable to a\nspecific obligation.\n\n                                       2\n\n \n     (b)  The following rules of interpretation apply:  (i) the term \"including\"\nand its derivatives mean \"including, without limitation\" unless the context\nclearly states otherwise; (ii) words importing the singular include the plural\nand vice versa; (iii) words of the masculine gender shall be deemed to include\nthe correlative words of the feminine gender; (iv) words importing persons\ninclude firms, associations, limited liability companies, partnerships, trusts,\ncorporations and other legal entities, including public bodies, as well as\nnatural persons; and (v) all references to a number of days mean calendar days,\nunless expressly indicated otherwise.\n\n2.  TERM; RELATIONSHIP.  (a)  This Agreement will begin on the date set forth\nabove and will continue for a period of   five years from the Effective Date,\nunless earlier terminated in accordance with the terms hereof or extended by\nmutual agreement of the parties.  Except as may be provided in Exhibit A hereto,\nthe terms of this Agreement will only apply to Leases entered into after the\nEffective Date hereof.\n\n      (b)  Either party may terminate this Agreement, effective as of any date\nwhich falls not less than twelve months after the Effective Date, by giving not\nless than three months prior written notice to the other of its election to so\nterminate this Agreement.\n\n     (c)  It is understood and agreed that at no time will this Agreement be\ndeemed to create a partnership, joint venture, syndication, employment contract\nor any other relationship between the parties other than that of independent\ncontractors.  Neither party shall have the power to obligate or bind the other\nparty.  The parties agree that it is their intention that PBCC be the  primary\nexclusive provider of financing to customers of Office Systems during the term\nof this Agreement, it being understood and agreed that PBCC shall have a right\nof first refusal to offer financing to customers of Office Systems for all\nLeases of Equipment, as well as for all other programs and services from time to\ntime offered by Office Systems; provided, however, that PBCC shall have no right\nof first refusal with respect to financing extended to a customer who has an\nalternative financing source other than PBCC and has requested  that it receive\nfinancing from such alternative source.  Further, it is the intention of the\nparties that the terms on which PBCC offers lease financing to prospective\nLessees, including, without limitation, the pricing, service standards, advances\nwith respect to charges for equipment maintenance, fees, charges, residual\nvalues and credit approvals and rates, will, taken as a whole, be competitive\nwith those offered by other lessors financing similar equipment under similar\ncircumstances; provided, however, that anything to the contrary contained herein\nnotwithstanding, the failure of PBCC to offer competitive pricing as aforesaid\nshall not constitute a Termination Event: (i) during the Transition Period; (ii)\nunless the same is material with respect to the Financing Program; and (iii)\nuntil such time as the Chief Executive Officers of Pitney Bowes Inc. and Office\nSystems shall have conferred and been unable to reach a satisfactory resolution\nwith respect to the relevant issues.\n\n     (d)  Each of the parties acknowledges and agrees that:  (i) it will use\ncommercially reasonable efforts to cause the Financing Program established by\nthis Agreement to be successful and mutually beneficial to both parties; (ii) it\nwill deal openly and fairly with the other party in good faith; and (iii) it\nwill cause its Responsible Officers to establish clear objectives and\nresponsibilities with respect to the Financing Program.\n\n                                       3\n\n \n3.  EQUIPMENT.  (a)  The Equipment to be financed by PBCC pursuant to the terms\nof this Agreement consists of copiers, multifunctional copiers and facsimile\nmachines, including those offered or sold by or through Office Systems, together\nwith related software, peripherals and system configurations, including trade-\nins, upgrades and other enhancements thereto or thereof, and such other products\nand services as may from time to time be agreed in writing by PBCC and Office\nSystems. Any such other products and services offered or sold by or through\nOffice Systems will be subject to the general terms and conditions of this\nAgreement, but separate provisions relating to credit criteria, Lease terms and\npricing will be established by the parties with respect to the financing thereof\nwithin sixty (60) days after Office Systems gives PBCC notice of its decision to\noffer such other products and services.\n\n     (b)  Upon request, PBCC may, in its sole discretion, extend the Financing\nProgram to include other vendors' equipment, products or services not otherwise\nconstituting \"Equipment\" but being acquired or refinanced simultaneously with\nthe Equipment.  If Office Systems, through acquisition, expansion or otherwise,\nengages in different or additional Equipment, service or product areas, PBCC\nshall have the right, but not the obligation, to be the primary exclusive\nprovider of financing for all such activities pursuant to the terms of this\nAgreement, unless PBCC elects in writing not to do so.\n\n     (c)  Prior to their execution and delivery of this Agreement, the parties\nhad conducted business together pursuant to various programs that are superseded\nby this Agreement.  Annexed to this Agreement as Exhibit A are certain\nprovisions setting forth the agreement of the parties as to how they will\nconduct their business during the Transition Period.\n\n4.  MARKETING; LEASE TRAINING. Office Systems will, from time to time, solicit\nthe interest of prospective Lessees in the Equipment.  Office Systems' means of\nsolicitation may include, by way of example and not as limitation, the use of\nmass mailing, direct marketing by its Marketers, web-enabled marketing, and the\nuse of third-party alliances.  PBCC shall have no obligation to solicit Lessees.\nUpon the request of Office Systems, PBCC will provide training in leasing and\nfinancing alternatives to Office Systems' Marketers, on such terms and\nconditions as may be determined by mutual agreement of the parties.  All\nmarketing and promotional materials developed by the marketing group of Office\nSystems and distributed to its sales force for use in connection with the\nFinancing Program, including  sales materials provided to its Marketers, and\ninserts to be included in Lessees' invoices, must be approved in advance by\nPBCC.  PBCC will have no liability with respect to the use by any Marketer of\nany materials not approved by PBCC, nor any obligation to honor any commitments\npurportedly incurred as a result of the use of such materials.\n\n5.  CREDIT REQUESTS; CRITERIA AND PRICING.  (a)  Upon Office Systems'\nidentification of a prospective Lessee, Office Systems will provide PBCC with a\nCredit Request with respect to such Lessee, in form and substance satisfactory\nto PBCC, containing all requested information relating to the prospective Lessee\nand detailing the specific Equipment in which such Lessee has an interest.  All\nnon-public information contained in any Credit Request will be held in\nconfidence by Office Systems and PBCC and will not be disclosed to any party\nother than for the specific purpose of evaluating a prospective Lessee's\nsuitability for participation in the Financing Program.  Except as otherwise\npermitted by the terms of this Agreement, neither \n\n                                       4\n\n \nOffice Systems nor PBCC will share any lists of unique prospective or actual\nLessees with any unrelated third party, or with any affiliate that competes\ndirectly with the products or services offered by the other party, without the\nprior written consent of the other.\n\n     (b)  PBCC will, in its sole discretion, establish credit criteria for\nevaluating the Lessees seeking financing under the Financing Program.  All\nLessee Credit Requests will be reviewed promptly upon PBCC's receipt of all\nrequested information (which may include information concerning company\nownership, corporate structure and the like, in addition to credit information).\nPBCC may from time to time enter into strategic alliances with other financing\nsources that provide financing for lessees such as the Lessees, and PBCC may, at\nits option, refer any Credit Request to such a financing source, it being\nunderstood, however, that the referral of such Credit Request to such a\nfinancing source shall not release PBCC from its obligations hereunder with\nrespect to such Credit Request and any financing furnished with respect thereto\nnor shall it alter the rights and obligations of Office Systems with respect\nthereto; provided, further, that PBCC may not refer any Credit Request to a\nfinancing source that is a captive finance company of a competitor of Offices\nSystems.  Unless otherwise specifically agreed in writing by PBCC, all credit\napprovals will expire sixty (60) days following the date of approval.  Credit\nRequests formally rejected by a Responsible Officer of PBCC in writing may be\nrestructured by Office Systems for resubmission to PBCC or may be submitted by\nOffice Systems, at its option, to a third party financing source.\n\n     (c)  PBCC reserves the right, in its sole and absolute discretion, to\ndecline to provide financing to any prospective Lessee.  By way of example and\nnot as limitation, PBCC may decline to provide financing to any Lessee (i) whose\nCredit Request is incomplete in any respect, (ii) whose credit does not meet the\nestablished criteria for the applicable level of financial exposure, (iii) that\nfails or refuses to execute and deliver all required Lease or credit\ndocumentation, or (iv) the financing of which may expose PBCC to additional\nlicensing or other regulatory requirements in any jurisdiction.  Except for any\nliabilities arising pursuant to Section 13 hereof, PBCC will have no liability\nwhatsoever for any loss, costs or expenses incurred or sustained by Office\nSystems, any Marketer or any Lessee arising as a result of PBCC's denial of\nfinancing to any Lessee.\n\n     (d)  The pricing of each Lease will be determined by PBCC in its sole\ndiscretion and may vary from time to time based on the term of the Lease or\nother financing arrangement, the creditworthiness of the Lessee, the then-\nprevailing interest rate environment, the estimated useful life and residual\nvalue of the Equipment, transaction size and such other criteria as PBCC may\nselect.  PBCC will provide Office Systems from time to time with a schedule\nsetting forth the current pricing criteria and Lease rates.  PBCC may change its\npricing criteria and Lease rates at any time in its sole discretion, upon not\nless than forty-five (45) days' prior written notice to Office Systems of any\nsuch changes.  PBCC will not knowingly structure the pricing of any Lease so\nthat the implicit rate thereunder would constitute a rate in excess of that\npermitted by applicable law.\n\n     (e)  PBCC covenants and agrees that, provided (i) no event of default\nexists under any Lease between PBCC and a Lessee and (ii) such Lessee meets\nPBCC's then applicable credit criteria for the applicable level of financial\nexposure, PBCC will provide additional financing to \n\n                                       5\n\n \nsuch Lessee throughout the term of this Agreement, whether for new Equipment,\nupgrades and\/or replacements, all on terms acceptable to PBCC in its sole\ndiscretion.\n\n6.  TRANSACTION FEES.  PBCC may elect to impose on prospective Lessees certain\nfees, as determined from time to time, including such items as credit review,\ndocumentation, filing fees, loss waiver, and third party financing, which fees\nmust be commensurate with standard industry practices.  All such fees will be\nsolely for the account of PBCC.  PBCC will provide Office Systems with a\nschedule detailing all such fees, which may be changed at any time in PBCC's\nsole discretion upon not less than seventy-five (75) days' prior written notice\nto Office Systems.\n\n7.  DOCUMENTATION.  (a)  All documentation to be used by Office Systems in\nconnection with the Financing Program will be provided by PBCC. Each Lease\nshall: (i) except as otherwise prohibited by law, contain an evergreen clause\npursuant to which the term of the Lease shall automatically be extended from\ntime to time for additional one year periods unless the Lessee or PBCC gives\nwritten notice to the other that the term will not be so extended not less than\nsixty (60) days prior to the date as of which the Lease term is then scheduled\nto expire; and (ii) make the Lessee responsible for any loss, damage or\ndestruction of the Equipment occurring after the delivery of the same to the\nLessee's site. Annexed to this Agreement as Exhibit C is a list of current\nFinancing Program documents.  Unless specifically agreed in writing by PBCC, all\nLeases will be documented as noncancellable (\"hell-or-high-water\") net leases,\nwith fixed terms of a length to be determined by PBCC and Office Systems for\neach Equipment or product line, containing industry-standard terms and\nconditions.  The documentation will be in the name of PBCC as owner and lessor.\nWhen Office Systems ceases to use the \"Pitney Bowes\" name, PBCC will modify the\nform of Lease, the form of Acceptance Certificate and any other Financing\nProgram documents the preparation of which is its responsibility, at its\nexpense, as necessary to reflect a \"private label\" name selected by Office\nSystems to be used exclusively by Office Systems and PBCC in connection with the\nfinancing program, it being understood and agreed that PBCC's agreement to\nmodify such documentation will only apply to documentation relating to Leases\nwhich are entered into after Office Systems gives PBCC notice of the \"private\nlabel\" name so selected by Office Systems.\n\n     (b)  Office Systems will prepare the Lease documents for execution by the\nLessee, using the forms provided by PBCC.  In addition to the Lease, each Lessee\nwill be required to provide evidence of its authority to enter into the Lease,\nevidence of the authority of the person signing on its behalf and, if requested\nby PBCC, UCC-1 financing statements in favor of PBCC (or written consent to\nPBCC's execution of such financing statements on the Lessee's behalf) and\nevidence of acceptable insurance coverage naming PBCC as an additional insured\nand loss payee, and PBCC shall be solely responsible, and shall use commercially\nreasonable efforts, to obtain such documents.  Office Systems shall have no\nauthority to make any substantive changes to the forms of Lease documents, and\nPBCC will use commercially reasonable efforts to assist Office Systems in those\ncircumstances in which a Lessee seeks to negotiate any substantive terms and\nconditions of the Lease.  Only the forms of documentation provided by PBCC will\nbe accepted by PBCC for financing, and, unless specifically approved in advance\nin writing by a Responsible Officer of PBCC, no agreement, document,\ncertificate, side letter or other communication (whether written or oral) that\nalters in any way the standard terms and conditions \n\n                                       6\n\n \nof the Lease in any respect will constitute a part of the Lease, nor will PBCC\nhonor, or have any obligation whatsoever to honor, any such terms or conditions,\nas so altered, and Office Systems will be solely responsible for any loss, cost\nor expense that PBCC suffers or incurs as a result of the alteration of any such\nterms or conditions not so specifically approved by PBCC.\n\n     (c)  PBCC will prepare an acceptance certificate (the \"Acceptance\nCertificate\") for execution by the Lessee upon satisfactory installation of the\nEquipment by Office Systems or another authorized Equipment installer.  The\nAcceptance Certificate will evidence the Lessee's irrevocable acceptance of the\nEquipment being financed.  The term of the Lease will begin on the date set\nforth as the \"Lease Commencement Date\" in such Acceptance Certificate.  It is\nthe responsibility of PBCC to obtain the executed Acceptance Certificate from\nthe Lessee, and PBCC shall use commercially reasonable efforts to obtain the\nsame, but Office Systems agrees that, upon request, it will use commercially\nreasonable efforts to assist PBCC in obtaining such Acceptance Certificate.\n\n8.  PURCHASE DOCUMENTS; OWNERSHIP.  (a)  Upon the Lessee's execution of the\nLease and related documentation, PBCC may, at its option, enter directly into a\npurchase agreement with the vendor of the Equipment (which may be Office Systems\nor a third party vendor) or accept an assignment of an existing purchase\nagreement between such vendor and either Office Systems or the Lessee.  Each\nsuch agreement will provide that title to the Equipment will pass from the\nvendor directly to PBCC, free and clear of all liens, claims and encumbrances\nwhatsoever, that the vendor will be relieved of all risk of loss, damage or\ndestruction of the Equipment once the Equipment has been installed and that PBCC\nwill be the beneficiary of all warranties made by the vendor of the Equipment.\n\n     (b)  All right, title and interest in and to the Equipment financed by PBCC\nshall be vested solely in PBCC as owner, free and clear of all liens, claims and\nencumbrances whatsoever, and to the extent, if any, that any tax benefits may\naccrue to an owner of equipment such as the Equipment, all of such benefits\nshall be for the account of PBCC.  In filing its tax returns and maintaining its\nbooks and records, Office Systems shall take no position that is contrary to the\nforegoing, nor shall it take or omit to take any action, which act or omission\nresults in the disqualification of any Equipment from, or the recapture of, or a\nchange in the time at which PBCC may claim, all or any portion of such tax\nbenefits.  PBCC does not make, nor shall it be deemed to have made, any\nrepresentation or warranty to Office Systems with respect to the tax or\naccounting treatment of any transaction contemplated by this Agreement.\n\n9.  INSTALLATION; MAINTENANCE AND REPAIR.  Office Systems will be solely\nresponsible for the timely and satisfactory delivery and installation of the\nEquipment at the Lessee's site.  From and after the delivery of the Equipment to\nthe Lessee's site and throughout the term of the Lease, any requests from the\nLessee for additional services to correct any installation or operating problems\nand any requests for maintenance and\/or repairs to the Equipment or any other\nequipment leased in connection therewith (together, such installation,\noperations, maintenance and\/or repair, the \"Technical Services\") shall be the\nsole responsibility of Office Systems, and PBCC shall have no liability\nwhatsoever to provide, or cause to be provided, nor shall it have any liability\nin any way relating to the provision or performance of, any Technical Services\nrelating to the Equipment or to any other equipment leased in connection\n\n                                       7\n\n \ntherewith.  Office Systems agrees to provide, or cause its Marketers or other\nauthorized Technical Services providers to provide, any and all such Technical\nServices to each Lessee upon request or in accordance with any Technical\nServices contract entered into with respect to the Equipment.  No failure of\nOffice Systems or any other party to provide Technical Services to any Lessee\nshall entitle such Lessee to delay, withhold or otherwise offset or modify the\nfixed payments of rent due under its Lease with PBCC.\n\n10.  INVOICES AND FUNDING  Office Systems will provide, or if it is not the\nvendor of the Equipment, will cause the vendor to provide, a detailed invoice in\nPBCC's name describing the Equipment and the purchase price therefor (including\napplicable taxes, if any) and certifying that all such Equipment has been\ndelivered to the Lessee, was inspected and installed to the Lessee's\nsatisfaction and is functioning in accordance with its published specifications,\nas the same may be modified by specific agreement between the Lessee and Office\nSystems.  Upon receipt of the Equipment invoice, PBCC will remit the purchase\nprice of the Equipment directly to Office Systems or, if the Equipment is being\nfurnished by a vendor other than Office Systems, such other vendor, as directed\nby Office Systems to an account established by Office Systems or such other\nvendor, which account of Office Systems may be changed from time to time by\nwritten notice from Office System's Responsible Officer to PBCC.  The parties\nwill agree from time to time as to any additional compensation arrangements.\n\n\n11.  LEASE CANCELLATION REQUESTS.  If, within thirty (30) days following the\npayment by PBCC of the purchase price of any Equipment, the Lessee requests a\nlease cancellation alleging missing, malfunctioning, nonconforming or\nnonfunctioning Equipment, PBCC will give Office Systems written notice of such\nfact containing: (i)  such information with respect to the problem(s) raised by\nthe Lessee of which PBCC has received notice from the Lessee; and (ii) the LCR\nPurchase Price, which  shall be the amount that Office Systems will be required\nto remit to PBCC should such the Lease be cancelled.  Office Systems will have\ntwenty (20) Business Days from its receipt of such notice to correct such\nEquipment deficiency to Lessee's satisfaction at Office Systems' own cost and\nexpense.  If Office Systems fails or refuses to do so within such timeframe,\nOffice Systems will purchase the Equipment from PBCC for a purchase price (the\n\"LCR Purchase Price\") equal to (i) the sum of (x) the amount paid by PBCC in\nrespect of the purchase price of the Equipment, (y) any additional compensation\npaid by PBCC to Office Systems in respect of such Lease and (z) any EMA Contract\nadvances or other amounts paid by PBCC to Office Systems in respect of such\nLease, plus (ii) interest on such total amount for the number of days elapsed\n       ----                                                                  \nbetween the date of funding and the date of such purchase, calculated at a rate\nper annumagreed to from time to time by the parties, less (iii) any Lease\n                                                     ----                \npayments actually received by PBCC from the Lessee and permitted to be retained\nby PBCC (i.e., not paid back, or required to be paid back, to the Lessee or paid\nover to Office Systems), such amount to be paid no later than the tenth day\nafter the expiry of such twenty (20) Business Day period.  Upon receipt of such\namount, PBCC will convey the Equipment to Office Systems on an \"as is, where is\"\nbasis, without recourse or warranty, other than as to the absence of liens\ncreated by PBCC (other than the Lease, if Office Systems and the Lessee elect to\ncontinue the Lease).  Notwithstanding anything contained herein to the contrary,\nif, within thirty (30) days following the payment by PBCC of the purchase price\nof any Equipment, a Lessee \n\n                                       8\n\n \nrequests the cancellation of a Lease for any reason, PBCC shall notify Office\nSystems of such request and shall, upon the request of Office Systems, agree to\nthe cancellation of the Lease, whereupon Office Systems shall be required to pay\nto PBCC the LCR Purchase Price within ten days after such cancellation, and\nreceipt of said payment shall be PBCC's sole and exclusive remedy for such\ncancellation.\n\n12.  EMA CONTRACTS; ADVANCES BY PBCC.  (a)  If Office Systems and the Lessee\nenter into a maintenance, service and supply contract (an \"EMA Contract\"),\nOffice Systems will, in the event that Office Systems requests PBCC to pay to\nOffice Systems the amount of EMA Contract charges payable under a Lease before\nit actually receives the payment of EMA Contract charges from the Lessee, assign\nto PBCC all of Office Systems' rights under the EMA Contract, but none of its\nobligations.  The Lease shall contain a provision which states that Lessee\nacknowledges  that PBCC is entitled to collect from the Lessee all amounts\npayable by the Lessee under such EMA Contract.  Each EMA Contract will set forth\nin detail the nature and amount of any charges thereunder to be included on the\nLessee's invoice.  All EMA Contract base charges will be invoiced together with\nthe Lessee's regularly scheduled Lease payments, either separately stated or\nincluded as a component of the rent payment due.  The failure of a Lessee to\nmake timely payment of any such EMA Contract charges will constitute a default\nunder both the EMA Contract and the Lease, as to which PBCC will have all of the\nsame rights and remedies that it has with respect to any other Lease default.\nPBCC may charge the Lessee for late fees or interest on any unpaid EMA Contract\ncharges in accordance with the terms of the applicable EMA Contract or the\nLease, as applicable. Office Systems covenants and agrees that it will fully\nperform all of its obligations under each EMA Contract.\n\n  (b)  As an administrative convenience to Office Systems, PBCC agrees that,\nduring the term of this Agreement, Office Systems may invoice PBCC quarterly in\nadvance for an amount equal to the aggregate amount of EMA Contract charges\nscheduled to be paid by a Lessee during such quarter, and PBCC will pay Office\nSystems an amount equal to such aggregate EMA Contract charges.  PBCC shall have\nno obligation to pay Office Systems any such amounts with respect to any  Lease\nthe rent payments or EMA Contract charges under which are 60 days in arrears at\nthe time such advance is scheduled to be made to Office Systems until such rent\npayments or EMA Contract charges are brought current by the Lessee. Office\nSystems shall, upon demand by PBCC, reimburse PBCC for any advances of EMA\nContract charges made to Office Systems by PBCC and not collected by PBCC from a\nLessee, and PBCC shall be entitled to set off the obligation of Office Systems\nto reimburse PBCC for such advances against PBCC's obligation to make further\nadvances of EMA Contract charges hereunder, it being understood and agreed that\nthe provisions of this sentence shall survive the termination or expiration of\nthis Agreement.   Following its  advance to Office Systems of EMA Contract\ncharges under a Lease, PBCC will be entitled to retain all EMA Contract charges\nreceived from a Lessee during the applicable quarter, together with any late\nfees or interest thereon.\n\n     (c)  The parties acknowledge and agree that the provisions of this Section\n12 are subject to periodic review by PBCC and Office Systems as payment trends\nand credit risks are identified in the portfolio of Leases originated and\nfinanced hereunder.\n\n13.  INDEMNIFICATION.  Office Systems shall indemnify and hold harmless PBCC,\nits \n\n                                       9\n\n \nstockholders, officers, directors, representatives, and employees (each, an\n\"Indemnitee\") from and against any and all claims, actions, suits, proceedings,\ncosts, expenses, damages and liabilities, including reasonable fees and expenses\nof counsel, arising out of, connected with, or resulting from: (i) the breach by\nOffice Systems of any representation, warranty, covenant or agreement made by it\nor binding on it hereunder; (ii) the failure by Office Systems to perform its\nobligations hereunder; (iii) the Equipment or any other equipment leased under\nany Lease, including without limitation the manufacture, delivery, installation\nor return to Office Systems of the Equipment or said equipment or otherwise on\naccount of any personal injury or death or damage to property occasioned by the\nEquipment or said equipment;  (iv) the negligence or misconduct of employees,\nservants or agents of Office Systems, including any Marketer; (v)  the provision\nof, or failure of Office Systems, any Marketer or any other Technical Services\nprovider to provide, Technical Services with respect to the Equipment or said\nequipment, as required by and in accordance with the terms of an EMA Contract;\nor (vi) any infringement or alleged infringement of the intellectual property\nrights of any third party occasioned by the operation of the Equipment or any of\nsaid equipment (\"Infringement\"). Notwithstanding the foregoing, the obligation\nof Office Systems to indemnify PBCC for claims based on misrepresentation(s) by\nan Office Systems' sales representative in the procurement of a Lease shall only\narise if: (i) a lawsuit based on such misrepresentation(s) is filed by a Lessee\nagainst PBCC; or (ii) a defense based on such misrepresentation(s) is asserted\nby a Lessee in a lawsuit brought by PBCC against such Lessee to enforce the\nterms of the Lease.  PBCC agrees to promptly notify Office Systems in writing of\nany matters in respect to which the foregoing indemnity may apply, and Office\nSystems shall be relieved of its obligations under this Section 13 to the extent\nit is prejudiced by PBCC's failure to timely notify it of such matter.  Office\nSystems shall have the exclusive right to control and conduct the defense and\nsettlement of all such claims or actions.  PBCC agrees to provide such\nassistance, at Office Systems' expense, as may be reasonably required by Office\nSystems in connection with such settlement or defense.  If final judgment shall\nbe obtained enjoining PBCC's use or operation of the Equipment or equipment, as\nthe case may be, or any part thereof, by reason of such Infringement or, if in\nOffice Systems' opinion, the Equipment or equipment, as the case may be, is\nlikely to become subject to a claim of Infringement, Office Systems shall, at\nits sole expense and option: (a) modify the Equipment or equipment, as the case\nmay be, so that it becomes non-infringing without materially altering its\ncapacity or performance; (b) procure for PBCC the right to continue to use the\nEquipment or equipment, as the case may be: or (c) substitute for the infringing\nEquipment or equipment, as the case may be, other equipment having a capability\nequivalent to such Equipment or equipment.  If Office Systems is unable to take\nany of the measures specified in  (a) through (c) above, then Office Systems\nwill remove the infringing Equipment or equipment, at its sole cost and expense,\nand shall pay to PBCC the Fair Market Value thereof plus any applicable taxes.\nOffice Systems shall have no liability with respect to any such claim or action\nto the extent caused by the combination, operation or use of the Equipment with\nany equipment, device, or alteration to the Equipment not made or authorized in\nwriting by Office Systems. PBCC shall indemnify and hold harmless Office\nSystems, its stockholders, officers, directors, representatives, and employees\nfrom and against any and all claims, actions, suits, proceedings, costs,\nexpenses, damages and liabilities, including reasonable fees and expenses of\ncounsel, arising out of, connected with, or resulting from:  (i) the breach by\nPBCC of any representation, warranty, covenant or agreement made by it or\nbinding on it hereunder; (ii) the failure by PBCC to perform its obligations\nhereunder; or (iii) \n\n                                       10\n\n \nany denial of financing to an applicant where such denial violates applicable\nlaw. The provisions of this Section 13 shall survive the termination or\nexpiration of this Agreement.\n\nNotwithstanding the foregoing and except as provided in Section 12(b) of this\nAgreement, PBCC will have no recourse to Office Systems for any payment default\nunder any Lease; provided, however, that, with respect to all Lessees other than\nLessees under a Trade-Up Lease (as described below), Office Systems agrees to\nindemnify PBCC for any loss (such loss to be the  LCR Purchase Price) resulting\nfrom a Lessee's failure to pay the first scheduled rent payment under its Lease\nwithin sixty (60) days from the due date for such payment.\n\n14.  TRADE-UPS, SUBSTITUTIONS AND COMPETITIVE BUY-OUTS.  (a)  So long as no\nevent of default exists under an existing Lease (including a default under any\nlease financed by PBCC on behalf of Office Systems prior to the Effective Date),\nPBCC, at the request of a Lessee or Office Systems, may agree to certain\nmodifications to a Lease and the Equipment subject thereto.  Such modifications\nmay involve (i) an addition to and\/or modification of such Equipment,\naccomplished by a change in size, capacity, utility, speed or power that shall\nnot require the removal of the original Equipment from Lessee's premises (a\n\"retained base in-place\" or \"RBI\" trade-up; for purposes of this Agreement, a\n\"Trade-Up\"), (ii) a deletion from or replacement of all or any portion of said\nEquipment (a \"pick-up\" trade-up; for purposes of this Agreement, an \"Equipment\nSubstitution\"), or (iii) a purchase or substitution of equipment offered by a\ncompetitive vendor in order to lease Equipment to the Lessee (a \"Competitive\nBuy-Out\").\n\n     (b)  Provided (i) no event of default exists under any Lease or other\nagreement between the Lessee and PBCC and (ii) the Lessee meets the then\napplicable credit criteria for the applicable level of financial exposure, PBCC\nwill enter into a new or amended Lease with such Lessee, on such terms and\nconditions as may then be customary for financings under this Agreement.  In the\ncase of Trade-Ups, any new Lease will include both the existing Equipment and\nthe Equipment provided pursuant to the Trade-Up.  Should an existing lease cover\nmore than a single unit of equipment, the lessee shall have the option of adding\nthe equipment not provided pursuant to the  Trade-Up or Equipment Substitution,\nas the case may be, to the new Lease, or keeping it under the existing lease.\n\n     (c)  Office Systems and PBCC will from time to time establish mutually\nagreeable pricing criteria for Trade-Up Leases and Equipment Substitution Leases\nto account for the inclusion in the new Lease of the remaining payments due\nunder the existing Lease and any EMA Contract charges, as well as the payments\ndue with respect to such Trade-Up or Equipment Substitution, as the case may\nbe.  If a Lessee requests a Lease buy-out quotation from PBCC in order to\nreplace Equipment with equipment offered by a competitive vendor, PBCC will\nnotify Office Systems in writing via e-mail or facsimile within one (1) Business\nDay of such request in order to enable Office Systems to take appropriate\nmarketing steps, and PBCC shall mail such buy-out quotation to Lessee five (5)\nBusiness Days after Office Systems has received such notice from PBCC.\n\n15.  LEASE ADMINISTRATION.  (a)  As owner and lessor, PBCC will administer all\nLeases financed pursuant to this Financing Program, including booking the Leases\non PBCC's lease \n\n                                       11\n\n \nadministration system, billing and collecting rents, monitoring collections and,\nto the extent permitted by applicable law, reporting and remitting applicable\nsales or use taxes (if any). PBCC will provide Office Systems with periodic\nreports with respect to the Leases and the Lessees; attached as Exhibit D is a\nlist of such reports. Office Systems will provide PBCC with any information or\ntechnical assistance reasonably deemed necessary by PBCC to effect the Lease\ntransactions contemplated by this Agreement or to enable PBCC to administer the\nLease portfolio.\n\n     (b)  Office Systems will have no right or obligation to administer any\nLease, to accept payments thereunder, to monitor collections or to exercise any\nremedies upon a default. Office Systems will not purport to amend, alter,\nmodify, release, waive or discharge any term or condition of the Lease without\nthe prior written consent of a Responsible Officer of PBCC, which may be given\nor withheld in PBCC's sole discretion, and any such action by Office Systems in\nthe absence of such consent shall be void and of no effect. During the term of\nthis Agreement, Office Systems will retain \"query\" and \"view only\" access to\nPBCC's lease administration systems.\n\n     (c)  PBCC may sell its portfolio of Leases to a third party provided: (i)\nsuch third party is not a competitor or a captive finance company of a\ncompetitor of Offices Systems; and (ii) the third party agrees to be bound by\nthe terms and conditions of this Agreement as they pertain to the Leases, which\nterms and conditions shall remain in full force and effect as set forth herein;\nprovided, however,  that if the Agreement is terminated by PBCC pursuant to\nSection 2(b) hereof or by Office Systems pursuant to Section 24 hereof, PBCC\nwill give notice in writing to Office Systems of any definitive offer made by a\nthird party to purchase the portfolio during the six-month period following such\ntermination, such notice to be given within ten days after receipt by PBCC of\nsuch definitive offer,  and Office Systems or its designee shall have the right\nto match the terms of the offer made by any such third party during the sixty-\nday period following the receipt by Office Systems of such notice from PBCC by\nsubmitting a definitive offer to purchase on the same terms as that previously\nsubmitted by such third party during such sixty-day period.  In the event Office\nSystems or such designee, as the case may be, elects to match such definitive\noffer, PBCC will sell the portfolio to Office Systems or such designee, as the\ncase may be, on the terms  offered by such third party to PBCC.  The terms of\nclause (i) above shall survive the termination or expiration of this Agreement\nunless this Agreement is terminated by PBCC pursuant to Section 24 hereof.\n\n16.  RIGHTS ON LESSEE DEFAULT.  (a)  Upon the occurrence of an event of default\nunder any Lease or any separate EMA Contract, PBCC shall have all of the rights\nand remedies available to it as lessor or otherwise thereunder and under any\napplicable law.  PBCC will give Office Systems notice of any Lease as to which\nPBCC intends to exercise its right to repossess the Equipment, and Office\nSystems will have the right, but not the obligation, to purchase the Equipment\nat the Fair Market Value thereof upon such repossession or the surrender thereof\nby the Lessee plus any applicable taxes.  The term \"Fair Market Value\" as used\nin this Agreement means, as of the date on which the same is being calculated,\nthe greater of: (i) the book value of the Equipment; and (ii) the cash purchase\nprice (exclusive of any taxes) that would be obtained in an arms' length\ntransaction between a knowledgeable seller under no compulsion to sell and a\nknowledgeable buyer (other than a used equipment dealer or a lessee in\npossession) under no \n\n                                       12\n\n \ncompulsion to purchase.\n\n  (b)  Following any such event of default, Office Systems will, at PBCC's\nrequest and expense, arrange to deinstall, pack, insure and transport such\nEquipment to Office Systems' facilities or such other location as PBCC shall\ndesignate.  Upon PBCC's request, Office Systems will store the Equipment at its\nfacilities, in the condition in which it was received from the Lessee's site,\nwithout charge for a period ending on the day which falls thirty (30) days after\nthe later of: (i) the day on which PBCC has received written notice from Office\nSystem that Office Systems will not purchase the Equipment; and (ii) the day on\nwhich Office systems has received the Equipment at its facilities, and\nthereafter PBCC shall pay to Office Systems storage charges at the rate of $2.50\nper day per unit of Equipment.  Office Systems will give written notice to PBCC\nas to whether or not it will purchase the Equipment  within twenty (20) Business\nDays following its receipt of such Equipment at its facilities or its inspection\nof the Equipment at such other location, whichever is earlier.  The failure to\ngive such notice within such period shall be deemed to be an election to not\npurchase the Equipment.  If Office Systems elects to purchase the Equipment, it\nwill pay PBCC the Fair Market Value thereof  (plus applicable taxes, if any)\nwithin five (5) Business Days following its notice to PBCC of its election to\npurchase the Equipment.   If Office Systems does not exercise its right to\npurchase the Equipment, it will continue to store such Equipment at the rate set\nforth above for a period of  180 days.\n\n17.  END OF LEASE TERM.  (a)  PBCC will give Office Systems written notice of\nthe impending termination of each Lease not less than nine (9) months prior to\nits scheduled termination date (the \"EOL Date\").  In addition to its customary\nLease administration duties, PBCC will initiate Lessee retention efforts no\nearlier than thirty (30) days prior to the EOL Date and will advise Office\nSystems of the results of such efforts.  If prior to the EOL Date, the Lessee\ndoes not elect to acquire the Equipment, extend the Lease or exercise such other\noptions as may be available to it under the terms of the Lease, PBCC will give\nOffice Systems notice of the availability of the Equipment for purchase, and\nOffice Systems will have the right, but not the obligation, to purchase the\nEquipment on or after such EOL Date at the Fair Market Value thereof plus any\napplicable taxes.\n\n  (b) At the end of the Lease term, Office Systems will, at PBCC's request and\nexpense, arrange to deinstall, pack, insure and transport such Equipment to\nOffice Systems' facilities or such other location as PBCC shall designate.  Upon\nPBCC's request, Office Systems will store the Equipment at its facilities, in\nthe condition in which it was received from the Lessee's site, without charge\nfor a period ending on the day which falls thirty (30) days after the later of:\n(i) the day on which PBCC has received written notice from Office Systems that\nOffice Systems will not purchase the Equipment; and (ii) the day on which Office\nSystems has received the Equipment at its facilities, and thereafter PBCC shall\npay to Office Systems storage charges at the rate of $2.50 per day per unit of\nEquipment.  Office Systems will give written notice to PBCC as to whether or not\nit will purchase the Equipment within twenty (20) Business Days following its\nreceipt of such Equipment at its facilities or its inspection of the Equipment\nat such other location , whichever is earlier.  The failure to give such notice\nwithin such period shall be deemed to be an election to not purchase the\nEquipment.  If Office Systems elects to purchase the Equipment, it will pay PBCC\nthe Fair Market Value thereof (plus applicable taxes, if any) within five (5)\nBusiness Days following its  notice to PBCC of its election to purchase the\nEquipment.   \n\n                                       13\n\n \nIf Office Systems does not exercise its right to purchase the Equipment, it will\ncontinue to store such Equipment at the rate set forth above for a period of 180\ndays.\n\n18.  RENEWALS AND EXTENSIONS; REMARKETING. Following the Transition Period, all\nEquipment remarketing  will be the responsibility of PBCC, unless otherwise\nagreed by the parties.  To facilitate the development by PBCC of its remarketing\ncapabilities, the parties have agreed to provide for Office Systems to engage in\ncertain remarketing efforts with respect to any Leases whose terms are scheduled\nto expire on or before December 31, 2001, all as more fully described in Exhibit\nA hereto.\n\n19.  TARGETED SERVICE LEVELS.  Each of the parties will use its commercially\nreasonable efforts to ensure that the Financing Program contemplated by this\nAgreement meets objective criteria established by the parties from time to time.\nThe Financing Program objectives and performance standards (the \"Targeted\nService Levels\") will be established by PBCC and Office Systems quarterly.\n\n20.  REPRESENTATIONS AND WARRANTIES OF PBCC.  PBCC represents and warrants to\nOffice Systems as follows:\n\n     (a)  Due Organization.  PBCC is a corporation duly organized and validly\n          ----------------                                                   \nexisting in good standing under the laws of the State of Delaware, is and will\nremain duly qualified to do business as a foreign corporation in each other\njurisdiction in which the conduct of its business or the ownership of its\nproperty requires it to be so qualified, and has the corporate power and\nauthority to carry on its business as currently conducted, to execute, deliver\nand perform this Agreement and to consummate the transactions contemplated\nhereby.\n\n     (b)  Authorized and Binding Obligations.  This Agreement constitutes the\n          ----------------------------------                                 \nduly authorized, legal, valid and binding obligation of PBCC, enforceable\nagainst PBCC in accordance with its terms, except as such enforceability may be\nlimited by bankruptcy, insolvency, moratorium and other laws affecting\ncreditors' rights and remedies and by the application of equitable principles\nand remedies.\n\n     (c)  Litigation. There is no action, suit, investigation or proceeding by\n          ----------                                                          \nor before any court, arbitrator, administrative agency or other governmental\nauthority pending or, to the knowledge of PBCC, threatened against or affecting\nPBCC which, if adversely determined, could have a material adverse effect on the\nfinancial condition, business or operations of PBCC or its ability to perform\nunder this Agreement.\n\n     (d)  No Breach or Violations.  The execution and delivery of this Agreement\n          -----------------------                                               \ndo not, and the performance of and compliance with the terms and provisions\nhereof will not, (i) constitute a breach or violation of the terms, conditions\nor provisions of, nor constitute a default under or conflict with, the\ncertificate of incorporation or bylaws of PBCC or any terms, conditions or\nprovisions of any promissory note, lease, indenture or other agreement or\ninstrument, stay, injunction, award or decree of any governmental body,\nadministrative agency or court to which PBCC is a party or by which PBCC or its\nproperty may be bound or (ii) violate any provision of any law or administrative\nregulation applicable to, or any court decree issued with respect to, \n\n                                       14\n\n \nPBCC. Neither PBCC nor any of its employees or agents has taken any action or\nomitted to take any action, the taking or omission of which would constitute\nfraud or a violation of the Foreign Corrupt Practices Act or any similar law in\nany applicable jurisdiction.\n\n21.  REPRESENTATIONS AND WARRANTIES OF OFFICE SYSTEMS.  Office Systems\nrepresents and warrants to PBCC as follows:\n\n     (a)  Due Organization.  Office Systems is a corporation duly organized and\n          ----------------                                                     \nvalidly existing in good standing under the laws of the State of Delaware, is\nand will remain qualified to do business as a foreign corporation in each other\njurisdiction in which the conduct of its business or the ownership of its\nproperty requires it to be so qualified, and has the corporate power and\nauthority to carry on its business as currently conducted, to execute, deliver\nand perform this Agreement and to consummate the transactions contemplated\nhereby.\n\n     (b)  Authorized and Binding Obligations.  This Agreement constitutes the\n          ----------------------------------                                 \nduly authorized, legal, valid and binding obligation of Office Systems,\nenforceable against Office Systems in accordance with its terms, except as such\nenforceability may be limited by bankruptcy, insolvency, moratorium and other\nlaws affecting creditors' rights and remedies and by the application of\nequitable principles and remedies.\n\n     (c)  Litigation. There is no action, suit, investigation or proceeding by\n          ----------                                                          \nor before any court, arbitrator, administrative agency or other governmental\nauthority pending or, to the knowledge of Office Systems, threatened against or\naffecting Office Systems which, if adversely determined, could have a material\nadverse effect on the financial condition, business or operations of Office\nSystems or its ability to perform under this Agreement.\n\n     (d)  No Breach or Violations.  The execution and delivery of this Agreement\n          -----------------------                                               \ndo not, and the performance of and compliance with the terms and provisions\nhereof will not, (i) constitute a breach or violation of the terms, conditions\nor provisions of, nor constitute a default under or conflict with, the\ncertificate of incorporation or bylaws of Office Systems or any terms,\nconditions or provisions of any promissory note, lease, indenture or other\nagreement or instrument, stay, injunction, award or decree of any governmental\nbody, administrative agency or court to which Office Systems is a party or by\nwhich Office Systems or its property may be bound or (ii) violate any provision\nof any law or administrative regulation applicable to, or any court decree\nissued with respect to, Office Systems.\n\n     (e)  Lessee Documents.  As a continuing representation throughout the term\n          ----------------                                                     \nof this Agreement, with respect to each transaction from time to time proposed\nby Office Systems hereunder, (i) all EMA Contract documents are accurate and\ncomplete, and all modifications, waivers, releases, special terms,\nunderstandings, amendments and\/or agreements (written or oral) between Office\nSystems and the Lessee, or made by Office Systems to the Lessee, or in any way\nwhatsoever relating to the Lease, the Lessee, the EMA Contract, the Credit\nRequest or the Equipment, have been fully disclosed and provided to PBCC; (ii)\nas of the date set forth in the Office Systems invoice to PBCC, the Equipment\ndescribed in the Lease has been delivered to the Lessee and has been installed;\n(iii) neither Office Systems nor any of its employees or agents has taken any\naction or omitted to take any action, the taking or omission of which would\nconstitute \n\n                                       15\n\n \nfraud or a violation of the Foreign Corrupt Practices Act or any similar law in\nany applicable jurisdiction; (iv) upon payment in full of the purchase price of\nthe Equipment to Office Systems or its designee, PBCC shall have full legal and\nbeneficial title to such Equipment, free and clear of all liens, claims and\nencumbrances, other than the leasehold interest of the Lessee under the Lease;\n(v) Office Systems has performed and, provided that a Lessee is not in default\nunder any Lease or any EMA Contract, will continue to perform, in all material\nrespects, its obligations under each EMA Contract except to the extent that\nOffice Systems' failure to perform is not material and would not adversely\naffect PBCC's rights and interests under any Lease, and no event of default by\nOffice Systems exists under any EMA Contract which would adversely affect PBCC's\nrights and interests under any Lease; and (vi) to the best knowledge of Office\nSystems, no Credit Request contains an untrue statement of a material fact or\nomits to state any material fact necessary in order to make the statements\ntherein not misleading.\n\n22.  STANDARD OF CONDUCT.  PBCC shall perform its obligations hereunder in\naccordance with applicable law and with standards and procedures customarily\nused by other prudent persons in the business of originating, servicing and\nadministering assets similar to the Leases and, to the extent consistent with\nsuch terms, in the same manner in which, and with the same care, skill, prudence\nand diligence with which, it originates, services and administers leases of\nsimilar credit quality for itself or others, if any, but in any event, with no\nless care, skill, prudence and diligence than the customary and usual standards\nof practice of prudent institutional small and middle ticket equipment finance\nlease companies and, in each case, taking into account its other obligations\nhereunder (the \"PBCC Standard of Conduct\").  Office Systems shall perform its\nobligations hereunder in accordance with applicable law and with standards and\nprocedures customarily used by other prudent persons in the business of selling\nand servicing Equipment and, to the extent consistent with such terms, in the\nsame manner in which, and with the same care, skill, prudence and diligence with\nwhich, it sells and services Equipment for itself or others, if any, but in any\nevent, with no less care, skill, prudence and diligence than the customary and\nusual standards of practice of prudent institutional small and middle ticket\nequipment sales companies and, in each case, taking into account its other\nobligations hereunder (the \"PBOS Standard of Conduct\").  (the PBOS Standard of\nConduct and the PBCC Standard of Conduct are collectively referred to herein as\nthe \"Standard of Conduct\")\n\n23.  TERMINATION EVENTS.  Upon the occurrence of any of the following events\n(each,  a \"Termination Event\") and whether any such Termination Event shall be\nvoluntary or involuntary or come about or be effected by operation of law or\npursuant to or in compliance with any judgment, decree or order of any court or\nany order, rule or regulation of any administrative or governmental body, the\nnon-defaulting party (as the case may be, the \"Aggrieved Party\") may elect to\nterminate this Agreement in accordance with Section 24 hereof:\n\n     (a)  a party (the \"Defaulting Party\") fails to comply with the applicable\nStandard of Conduct and such failure continues unremedied for a period of twenty\n(20) days (or such longer period as determined by the Aggrieved Party) after the\ndate on which written notice of such failure describing the nature of such\nfailure and requesting the same to be remedied shall have been given to the\nDefaulting Party by the Aggrieved Party; or\n\n     (b)  the Defaulting Party fails to meet the Targeted Service Levels for two\n(2) consecutive \n\n                                       16\n\n \nfiscal quarters; or\n\n     (c)  the Defaulting Party fails to observe or to perform in any material\nrespect any of its other covenants or agreements set forth herein, which failure\nshall (i) materially and adversely, in the reasonable judgment of the Aggrieved\nParty, affect the rights of the Aggrieved Party hereunder or under any Lease and\n(ii) continue unremedied for a period of thirty (30) days (or such longer period\nas determined by the Aggrieved Party) after the date on which written notice of\nsuch failure requesting the same to be remedied shall have been given to the\nDefaulting Party by the Aggrieved Party; or\n\n     (d)  the Defaulting Party fails generally to pay its debts as they become\ndue; or its dissolution, termination of existence, or discontinuance of\nbusiness; or the insolvency, business failure or appointment of a receiver of\nany part of such party's property, or an assignment by such party for the\nbenefit of creditors, or the commencement by or against it of any proceedings\nunder any bankruptcy, reorganization or arrangement laws and, in the case of any\ninvoluntary proceedings, the continuance of such proceedings unstayed and in\neffect for sixty (60) days, or the assumption of custody or control by any court\nof competent jurisdiction over any substantial portion of the Defaulting Party's\nproperty, and the same remaining in force unstayed or unterminated for sixty\n(60) days; or\n\n     (e)  the Defaulting Party (i) enters into any transaction of merger or\nconsolidation or any commitment with respect thereto, unless it is the surviving\ncorporation, after giving effect to such merger or consolidation, its tangible\nnet worth is equal to or greater than that which existed immediately prior to\nthe merger or consolidation and the ratio of its debt to tangible net worth is\nnot greater than that which existed immediately prior to the merger or\nconsolidation and the person with whom it merges or consolidates is not a\ncompetitor of the other party; (ii) sells, transfers, or otherwise disposes of\nall or substantially all of its assets; (iii) permits any substantial change in\nthe ownership or control of its capital stock; or (iv) changes the form of\norganization of its business.\n\n24.  REMEDIES; WAIVERS.  (a)  Upon the occurrence of a Termination Event (and\nfollowing any grace period applicable thereto), the Aggrieved Party may\nterminate this Agreement by giving the Defaulting Party not less than thirty\n(30) days' written notice, whereupon all rights of such Defaulting Party under\nthis Agreement (other than such rights as shall have already vested hereunder),\nwhether with respect to the Leases, the Equipment or otherwise, shall terminate\nwithout further action.  Notwithstanding the foregoing, each party shall be\nentitled to all amounts payable to it under this Agreement accruing prior to the\ndate of termination of this Agreement and Office Systems shall be entitled to\nreceive EMA Contract charges accruing after the date of termination of this\nAgreement with respect to Leases entered into during the period commencing on\nthe Effective Date and ending on the date of termination of this Agreement at\nany time thereafter, the Aggrieved Party may proceed by appropriate court\naction, either at law or in equity, to enforce performance by the Defaulting\nParty of the applicable covenants of this Agreement or to recover damages for\nthe breach thereof and may exercise any and all other rights accruing to it\nunder any applicable law upon a default by a contracting party.\n\n     (b)  Either party may waive in writing any default by the other in the\nperformance of its \n\n                                       17\n\n \nobligations hereunder and its consequences. Upon any such waiver of a past\ndefault, such default shall cease to exist, and any Termination Event arising\ntherefrom shall be deemed to have been remedied for every purpose of this\nAgreement. No such waiver shall extend to any subsequent or other default or\nimpair any right consequent thereon.\n\n     (c) Neither party shall be liable one to the other, for any special,\nindirect, incidental, punitive, exemplary or consequential damages (including\nwithout limitation loss of profits) arising out of or in connection with this\nAgreement, the Equipment and servicing thereof.\n\n25.  NOTICES; RESPONSIBLE OFFICERS.  (a)  Any demand, notice or instruction to\nbe given hereunder shall be in writing and addressed to the applicable party at\nthe address stated on the signature page of this Agreement, or at such other\naddress as such party may designate from time to time by written notice given in\naccordance with this Section 25.  Except as otherwise expressly provided in this\nAgreement, notices hereunder shall be deemed given and effective (i) if\npersonally delivered, upon delivery, (ii) if sent by overnight rapid-delivery\nservice with tracking capabilities, upon receipt; (iii) if sent by facsimile,\ntelex, telecopier, or electronic mail, at such time as the party that sent the\nnotice receives confirmation of receipt by the applicable method of transmittal,\nor (iv) if sent by certified or registered mail, within five (5) days of deposit\nin the mail.\n\n  (b)  Each of the parties will designate to the other in writing the names of\none or more Responsible Officers who have authority to act on its behalf,\nspecifying the extent of such authority and any restrictions thereon.\n\n26.  GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL.  (a)  THIS\nAGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF\nTHE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES\nHEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT REGARD TO\nTHE CONFLICT OF LAW PROVISIONS OF ANY STATE.\n\n     (b)  THE PARTIES HERETO HEREBY AGREE THAT ALL SERVICE OF PROCESS MAY BE\nMADE BY REGISTERED MAIL DIRECTED TO THE ADDRESSES SET FORTH ON THE SIGNATURE\nPAGE HEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETE UPON RECEIPT\nTHEREOF.  EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION IT MAY HAVE BASED ON\n                                                                            \nFORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED\n--------------------                                                    \nHEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF DEEMED\nAPPROPRIATE BY A COURT.  NOTHING IN THIS SECTION 26 SHALL AFFECT THE RIGHTS OF\nTHE PARTIES HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW\nOR AFFECT ANY PARTY'S RIGHT TO BRING ANY ACTION OR PROCEEDING IN THE COURTS OF\nANY OTHER JURISDICTION.\n\n     (c)  EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO A\nTRIAL BY JURY IN RESOLVING ANY DISPUTE, WHETHER \n\n                                       18\n\n \nSOUNDING IN CONTRACT OR TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH,\nRELATED TO, OR IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE INVOLVING\nTHIS AGREEMENT RESOLVED IN COURT SHALL BE RESOLVED IN A BENCH TRIAL WITHOUT A\nJURY.\n\n27.  COUNTERPARTS.  This Agreement may be executed in one or more counterparts\nand by the parties hereto on separate counterparts, each of which, when so\nexecuted, shall be deemed to be an original; such counterparts, taken together,\nshall constitute one and the same instrument.\n\n28.  SEVERABILITY.  Any provision of this Agreement that is determined by\ncompetent authority to be prohibited or unenforceable in any jurisdiction will,\nas to such jurisdiction, be ineffective to the extent of such prohibition or\nunenforceability without invalidating the remaining provisions hereof, and any\nsuch prohibition or unenforceability in any jurisdiction will not invalidate or\nrender unenforceable such provision in any other jurisdiction.  To the extent\npermitted by applicable law, each of the parties hereto hereby waives any\nprovision of law which renders any provision hereof prohibited or unenforceable\nin any respect.\n\n29.  ASSIGNMENT; NO THIRD PARTY BENEFICIARIES.  This Agreement shall be binding\nupon, and inure to the benefit of, the parties hereto and their respective\nsuccessors and permitted assigns, and no other party shall be entitled to rely\non this Agreement as a third party beneficiary hereof; provided, that this\nAgreement and the rights and obligations hereunder are not assignable by Office\nSystems without the prior written consent of PBCC, which may be given or\nwithheld in PBCC's sole discretion.  This Agreement shall not create in favor\nof, nor give to, any third party, any claim or right of action against Office\nSystems or PBCC.  PBCC may sell, assign, encumber, securitize or otherwise\ntransfer to any party who is not a competitor of Office Systems any or all of\nits interest in the Equipment, any Lease, any EMA Contract, and the payments due\nthereunder, subject to the rights of Office Systems pursuant to this Agreement.\n\n30.  SURVIVAL.  All representations and warranties contained in this Agreement\nor any document or certificate delivered pursuant hereto or thereto or in\nconnection herewith or therewith will survive the execution and delivery of this\nAgreement, and any terms or conditions of this Agreement which by their express\nterms extend beyond the termination or expiration of this  Agreement or which by\ntheir nature shall so extend shall survive and continue in full force and effect\nafter any termination or expiration of this Agreement, including, but not\nlimited to, Sections 12(b), 13, 15(c) and 36  Without limiting the generality of\nthe foregoing, each party shall be entitled to all amounts payable to it under\nthis Agreement accruing prior to the date of termination or expiration of this\nAgreement, as the case may be and Office Systems shall be entitled to receive \nEMA Contract charges accruing after the date of termination or expiration of\nthis Agreement, as the case may be, with respect to Leases entered into during\nthe period commencing on the Effective Date and ending on such date of\ntermination or expiration.\n\n31.  NO WAIVER.  No delay or failure by either party to exercise or enforce at\nany time any right or provision of this Agreement shall be considered a waiver\nthereof or of such party's right thereafter to exercise or enforce each and\nevery right and provision of this Agreement.  Any waiver of any right hereunder\nin a specific circumstance shall not be deemed a waiver of that \n\n                                       19\n\n \nright in any other circumstances or a waiver of any other right. A waiver to be\nvalid shall be in writing but need not be supported by consideration.\n\n32.  ENTIRE AGREEMENT; AMENDMENTS.  This Agreement constitutes the entire, full\nand complete agreement between the parties hereto concerning the subject matter\nhereof, and supersedes all prior agreements and negotiations.  The terms of this\nAgreement shall not be waived, altered, modified, amended, supplemented or\nterminated in any manner whatsoever except by a written instrument signed by\nPBCC and Office Systems.\n\n33.  ATTORNEYS' FEES.  If either party hereto institutes an action or other\nproceeding to enforce any rights arising under this Agreement, the party\nprevailing in such action or other proceeding shall be paid all reasonable costs\nand attorneys' fees by the opposing party, such fees to be set by court and not\nby jury.\n\n34.  FURTHER ASSURANCES.  The parties shall execute any further or additional\ninstruments and they will perform any acts that may become necessary in order to\neffectuate and carry out the purposes of this Agreement.\n\n35.  HEADINGS.  The descriptive headings of the several sections of this\nAgreement are inserted for convenience only and do not constitute a part of this\nAgreement.  The terms and conditions hereof have been negotiated by the parties\nhereto, and in interpreting this Agreement, no rule of construction that any\nambiguity shall be resolved against a drafting party shall apply.\n\n36.  PUBLICITY; CONFIDENTIALITY.  (a)  Each of the parties agrees that any press\nrelease or other public announcements regarding this Agreement shall not be made\nwithout the prior written consent of the other (which consent shall not be\nunreasonably withheld or delayed), except as required by law, in which case the\nother party shall be consulted, to the extent reasonably practicable, as to the\ncontent and timing of such release, announcement or statement to be issued.\n\n     (b)  In the performance of this Agreement, the parties may disclose to the\nother non-public, confidential and proprietary information (\"Protected\nInformation\") relating to PBCC's or Office Systems' credit criteria, marketing\nstrategy, transaction structuring, pricing guidelines, financial information,\ninternal costs and expenses or similar non-technical information considered by\nPBCC or Office Systems, respectively, to be of significant commercial value to\nit.  To maximize the benefit derived by the parties through sharing in one\nanother's Protected Information, each of the parties agrees that at all times,\nboth during the term of this Agreement and thereafter, it will protect the\nother's Protected Information from unauthorized dissemination (which shall\ninclude dissemination to a party's parent, subsidiary or affiliate) and use with\nthe same degree of care that it uses to protect its own like information, and\nwith not less care than is required by the applicable Standard of Conduct.  Each\nof the parties shall be responsible for compliance by its directors, officers,\nemployees and agents with the provisions of this Section 36(b).  Each of PBCC\nand Office Systems may use the other's Protected Information solely for the\npurpose of effecting the Financing Program as set forth in this Agreement and\nfor no other purpose.  \"Protected Information\" includes confidential or\nproprietary information developed, created or discovered by, for or on behalf of\na party, or which became or becomes known by or is conveyed \n\n                                       20\n\n \nto such party, which has or may have commercial value to such party in the\nconduct of its leasing business.\n\n     (c)  The provisions of this Section 36 shall survive the termination or\nexpiration of this Agreement.\n\n     [Remainder of Page Intentionally Left Blank; Signature Page Follows.]\n\n                                       21\n\n \nIN WITNESS WHEREOF, the parties hereto have caused the execution of this\nOperating Agreement by their respective duly authorized representatives as of\nthe date set forth above.\n\n\nPITNEY BOWES CREDIT CORPORATION\n\n\n\nBy: __________________________________________\nName:  Bret Thomas\nTitle: President - Global Credit Services\n       Address and Fax No. for Notices:\n\n       27 Waterview Drive\n       Shelton, CT  06484\n\n           Attn:  ____________________\n\n           Fax:  _____________________\n\nPITNEY BOWES OFFICE SYSTEMS\n\n\n\nBy: ____________________\n\nName: __________________\n\nTitle: _________________\n\nAddress and Fax No. for Notices:\n\n  100 Oakview Drive\n  Trumbull, CT  06611\n\n      Attn:  ___________________\n\n      Fax:  ____________________\n\n\nExhibit A - Transition Period Agreement\nExhibit B - Current Leasing Programs\nExhibit C - List of Financing Program Documents\nExhibit D - Required Reports\n\n                                       22\n\n \n                                   EXHIBIT A\n\n                         [TRANSITION PERIOD AGREEMENT]\n\nExcept as otherwise provided in the Agreement, the terms of the Agreement will\ntake effect on 9\/4\/01, with the following exceptions:\n\n.  All leases in PBCC's existing portfolio for Office Systems equipment which\n   expire on or prior to December 31, 2001 will be subject to the existing \"buy-\n   back\" arrangement in order to give PBCC an opportunity to develop its\n   remarketing capabilities. All such leases expiring thereafter will be subject\n   to the terms of Section 17 of this Agreement.\n\n.  Advance funding of EMA Contract charges will commence as systems issues with\n   both parties are resolved, such resolution to occur no later than November 1,\n   2001. PBCC's IT Department anticipates that the programming will be completed\n   within sixty days after the date Office Systems provides a complete test\n   file.\n\n.  PBCC will provide a phase-in schedule for continuous improvement of credit\n   application response time by 9\/30\/01.\n\n                                       23\n\n \n                                   EXHIBIT B\n\n                           [CURRENT LEASING PROGRAMS]\n\n\n.  Programs\n      .  90 Day cash conversion\n      .  Cancel\/Supercede - 90 days maximum\n      .  Competitive trade-in\n      .  Cost per copy lease\n\n.  Marketing Opportunities such as participation in sales incentive trips will\n   continue to be provided to Office Systems personnel.\n\n                                       24\n\n \n\n\n\n\n\n\n\n\n\n\n\n\n\n                                      25\n\n \n\n\n\n\n\n\n\n\n\n\n                                      26\n\n \n                                   EXHIBIT C\n\n                     [LIST OF FINANCING PROGRAM DOCUMENTS]\n\n\n\n.  Required in connection with all Leases\n   .  Credit Application\n   .  Lease Agreement\n.  Required for Leases in excess of $100,000\n   .  Lessee financial statements\n.  Required on an as-needed basis\n   .  Competitive Buy-Out Addendum\n   .  \"Water\" letter\n   .  UCC-1 Financing Statement\n\n                                       27\n\n \n                                   EXHIBIT D\n\n                               [REQUIRED REPORTS]\n\n\n   .\n.  Reports to Office Systems\n   .  18 months or less, by District\n   .  Monthly Reports\n      .  Statistical Overview\n      .  Marketing Programs\n      .  Adds\/Terms\n      .  Trade Up Success Tracking\n   .  Special report requests agreed to by both parties\n   .  Cycle time reports for lease acceptance turnaround\n\n.  Reports to PBCC\n   .  Leasable Sales\n   .  Special report requests agreed to by both parties\n\n                                       28\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7831,8530],"corporate_contracts_industries":[9454],"corporate_contracts_types":[9613,9617],"class_list":["post-42636","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-imagistics-international-inc","corporate_contracts_companies-pitney-bowes-inc","corporate_contracts_industries-manufacturing__industrial","corporate_contracts_types-operations","corporate_contracts_types-operations__jv"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42636","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42636"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42636"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42636"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42636"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}