PRINTWARE, INC.
EXHIBIT 10.1
LEASE PROGRAM AGREEMENT
Lease Program Agreement
This Lease Program Agreement is made and entered into as of December 29,
2000, between Printware, Inc., a Minnesota corporation, having its principal
office at 0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx, XX 00000, 651/456-1400 ("PWI"),
and Minnwest Capital Corporation, a Minnesota corporation, having an office
at 00000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, 952/545-8815
("Purchaser").
RECITALS
Printware, Inc. designs, builds and markets "computer-to-plate" systems
which are used by the printing industry to create printing plates directly
from computer data. Computer-to-plate systems replace the traditional
platemaking process of typesetting, paste-up, camera work, and processing
film. PWI is interested in developing a program for the external financing
of its "computer-to-plate" equipment under the terms and conditions set forth
herein (defined below as the "Program"). The Purchaser is a lessor and
financier of various types of equipment and is interested in working with PWI
in developing the Program and in purchasing and taking assignments of certain
Equipment Lease Agreements with "computer-to-plate" equipment end users
(defined below as "Users") providing for the lease of Equipment (defined
below as "Contracts") under the Program.
PWI desires to sell to Purchaser, and Purchaser agrees from time to time to
purchase from PWI on the terms and conditions set forth therein, PWI's
interest in such Equipment, such Contracts applicable to such Equipment and
PWI's rights thereunder and certain of the payments (defined below as
"Payments") due under such Contracts. PWI retains the obligation to perform
all of its duties and obligations under the terms of the Contracts. Purchaser
also may from time to time agree to perform other services with respect to
Contracts or other agreements between PWI and its Users in connection with the
Program, as set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms will
have the following meanings unless the context requires otherwise:
Additional Rent means with respect to any Equipment, amounts payable by a
User to PWI for the use of any Add-on not purchased by Purchaser, and, in the
event of any addition or modification to any part of such Equipment which
results in a replacement by PWI of any part of such Equipment and results in
an increase in amounts due PWI by the User under the applicable Contract which
are not purchased by Purchaser. Additional Rent shall also mean all amounts
payable by the User with respect to such addition or modification in excess of
amounts of Payments purchased by Purchaser.
Add-on means an addition or modification to any Equipment, accomplished by a
change in size, capacity, utility, speed or power of such Equipment, which
does not, however, result in any replacement of or substitution for any item
or component of such Equipment.
Agreement means this Lease Program Agreement as originally executed and as it
may from time to time be amended or supplemented in writing.
Alteration has the meaning ascribed to it in Section 6.6.
Approved Purchase has the meaning ascribed to it in Section 2.1.
Business Day means a day (other than Saturday or Sunday) on which the banks
in Minneapolis, Minnesota are open for business.
Certificate of Acceptance means an Installation Certificate from a User, in
form and substance reasonably satisfactory to Purchaser, duly executed by
such User indicating acceptance by such User of the Equipment under a
Contract to which such User is a party.
Closing Date means each date on which a Purchase is completed in accordance
with Section 4.3. The Closing Dates shall be established from time to time by
mutual agreement of the parties.
Contract means an Equipment Lease Agreement between PWI and a User relating to
the use of the Equipment described therein, insofar as it relates to such
Equipment, or any other lease or other agreement, whose terms and conditions
are acceptable to Purchaser, between PWI and a User relating to the use of the
Equipment described therein, including any such Contract resulting
from a Remarketing, and any amendment thereto, in each case which is subject
to a Purchase by Purchaser hereunder.
Default means any event specified in Sections 8.1 or 8.2, provided that any
requirement in connection with such event for the giving of notice or lapse of
time or any other condition has not been satisfied.
Discount Rate means the annual interest rate used in determining the Purchase
Price of each Investment Schedule, which is established by the Purchaser for
each Equipment Pool. The Discount Rate shall be equal to the average prime or
reference rate published in The Wall Street Journal for the one week period
(Monday through Friday) prior to a date for determination of the Discount
Rate plus:
125 basis points over the average prime or reference rate for calculating the
Purchase Price of PWI's lease portfolio, which shall be the first Investment
Schedule as set forth in Schedule 1 on the first Closing Date.
100 basis points over the average prime or reference rate, however, at no time
shall the Discount Rate be less than nine percent (9%) when calculating the
Purchase Price of future Investment Schedule (s) as set forth in Schedule 1
of each Closing Date (s) after the original Closing Date.
Documents means this Agreement and all other documents contemplated under
this Agreement, including each Contract and all other documents necessary
for the conveyance of the interests sold to Purchaser by PWI pursuant hereto.
Enforcement Notice has the meaning ascribed to it in Section 6.3 (f).
Equipment means the equipment leased to a User pursuant to a Contract and
purchased by Purchaser pursuant to this Agreement and subject to a Purchase,
including any Add-ons which are subject to a Purchase or financed, and any
replacements, renewals, substitutions, improvements, modifications, upgrades
and additions thereto.
Equipment Pool shall consist of all items of Equipment subject to a Purchase
and purchased during the Purchase Commitment period.
Event of Default means any event specified in Sections 8.1 or 8.2.
Funding Commitment has the meaning ascribed to it in Section 2.2.
Funding Date means each date on which the Purchase Price with respect to a
Purchase is paid. Funding Dates shall be established from time to time by the
mutual agreement of the parties.
Improvement Purchase Price has the meaning ascribed to it in Section 6.6.
In-Place Remarketing means Remarketing to Users as described in Section 7.2.
Investment Account means an account which is established by mutual agreement of
the Purchaser and PWI for each Equipment Pool, the operation of which is
described in Section 2.9.
Investment Recovery means that an Investment Account balance has been reduced
to zero dollars ($0.00). Investment Recovery shall have occurred on the first
day of the calendar month following the month during which the beginning
balance of the Investment Account is reduced to zero dollars ($0.00).
Investment Schedule means an Investment Schedule with respect to Equipment,
in the form attached hereto as Exhibit D and executed by the Purchaser and
PWI.
Lease Agreement means a Printware, Inc. Equipment Lease Agreement (or such
other name as may appear on a similar agreement executed by PWI) in
substantially the form attached hereto as Exhibit A, pursuant to which PWI
and a User have entered into a lease on the terms and conditions
set forth therein, and incorporating such changes to such terms and conditions
as are acceptable to Purchaser.
List Price means the normal selling price at which PWI shall offer its
Equipment for sale in the ordinary course of business to purchasers of
Equipment.
Loss Items has the meaning ascribed to such term in Section 5.9.
Maintenance Agreement means any and all maintenance agreements between a User
and PWI relating to operation, support, training and other services with
respect to any Equipment.
Obligations means all liabilities and obligations of any kind or nature
whatsoever of one party to another under the Documents, whether direct or
indirect, absolute or contingent, due or to become due, and whether now
existing or hereafter arising, and howsoever evidenced or acquired.
Offer has the meaning ascribed to such term in Section 7.3.
Payment means the monthly Rental Payment due from a User during the term of
a Contract which is described in an Investment Schedule and is to be paid to
Purchaser under the terms of this Agreement,
Permitted Liens means each of the following:
inchoate liens for taxes, assessments or governmental charges or levies not
yet due or liens for taxes, assessments or governmental charges or levies
being contested in good faith and by appropriate proceedings for which
adequate reserves (in the good faith judgement of the management of PWI) have
been established;
liens in respect of property or assets of PWI imposed by law which were
incurred in the ordinary course of business, such as carriers', warehousemen's,
and mechanics' liens, statutory landlord's liens, and other similar liens
arising in the ordinary course of business, and (i) which do not in the
aggregate materially detract from the value of such property or assets or
materially impair the use thereof in the operation of the business of PWI or
(ii) which are being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture of sale of the
property or asset subject to such lien; liens created by or pursuant to this
Agreement and the other Documents;
liens arising from judgments, decrees or attachments (or securing of appeal
bonds with respect thereto), so long as no cash or property (other than
proceeds of insurance payable by reason of such judgments, decrees or
attachments) is deposited or delivered to secure any respective judgment or
award, or any appeal bond in respect thereof, the fair market value of which
exceeds $10,000;
liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types
of social security, or to secure the performance of tenders, statutory
obligations, surety bonds (other than appeal bonds), bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money); and
banker's liens, rights of setoff and similar liens incurred on deposits made
in the ordinary course of business.
Person means any corporation, partnership, limited liability entity, trust,
estate, individual, unincorporated business entity or governmental department,
administrative agency or instrumentality.
Pre-Approved Criteria has the meaning ascribed to it in Section 7.3.
Present Value means the value today of a stream of Payments and Residual,
discounted at the Discount Rate.
Program means the Purchase of the Equipment by Purchaser under the terms and
conditions set forth in this Agreement.
Purchase means a purchase, in accordance with the provisions of Sections 2 and
4 hereof, by Purchaser from PWI of Contracts, the related Equipment covered by
such Contracts and the Payments due under such Contracts, and such purchase
shall constitute a Purchase for all purposes under this until the rights of
Purchaser revert to PWI.
Purchase Commitment has the meaning ascribed to it in Section 2.8.
Purchase Price means the amount paid by Purchaser to PWI plus any Referral Fee
paid to Lakebrook Capital LLC for a Purchase, which shall be determined in
accordance with the provisions hereof.
Purchaser Default means any event specified in Section 9 provided that any
requirement in connection with such event for the giving of notice or lapse
of time or any other condition has not been satisfied.
Purchaser Event of Default means any event specified in Section 9.
Purchaser's Lien means any lien on any Equipment, any Contract or any Payment
or Rental Payment created or caused by Purchaser that is not otherwise
permitted by the terms of the Documents, or results from claims against
Purchaser not related to transactions under the Program.
Record means a communication between the parties hereto, the origination and
treatment of which are more fully set forth in Section 13.6.
Referral Fee has the meaning ascribed to it in Section 13.15.
Remarket or Remarketing shall mean the re-lease of any Equipment or extension
of a Contract beyond the initial term of the applicable Contract in whole or
in part, to either the original User, to any other User or to any other
Person, entered into as a result of PWI's services pursuant to Section 7
hereof.
Remarketing Costs means PWI's reasonable out-of-pocket expenses directly
associated with the remarketing of Equipment, pursuant to Section 7,
including sales commissions, service and repair costs incurred pursuant to
Section 7.3 (other than those incurred in connection with mandatory
field changes made to Equipment which PWI makes or causes to be made to all
or substantially all similar equipment at no cost to the users thereof and,
except in the event of a default under the applicable Contract, other than
those for which a User is responsible thereunder) and any improvements or
refurbishment made to any Equipment prior to Remarketing at the request of
Purchaser pursuant to Section 7.3. Such Remarketing Costs shall be
substantiated with appropriately documented, valid written receipts and shall
be determined from PWI's books and accounts in accordance with PWI's standard
accounting policies and practices consistently applied. Such Remarketing
Costs shall be incurred at rates no greater than those charged by PWI
to other lessors or owners of PWI equipment in connection with similar
remarketing arrangements and shall not exceed PWI's actual costs for items
paid to third parties. Notwithstanding the foregoing provisions of this
definition, return costs for which the User is responsible under the
applicable Contract (e.g., deinstallation, packing and shipping costs and
costs of repairs and service required to place the Equipment in the
condition required by the Contract, all such return costs being herein
referred to as "User Return Costs") shall be treated as follows: (i) in the
event of a default under the applicable Contract, User Return Costs shall, to
the extent actually incurred by PWI, be treated as Remarketing Costs; (ii) in
cases other than default under a Contract (A) in the event PWI elects to
assume responsibility for billing and collecting User Return Costs, such
Costs shall not be treated as Remarketing Costs; and (B) in the event PWI
does not elect to assume responsibility for billing collecting User Return
Costs, PWI shall provide an estimate of such Cost in a Record to Purchaser
and the User and Purchaser will assume responsibility for billing and
collecting such Costs, in which case such Costs shall be treated as
Remarketing Costs, (provided that if the User disputes the estimated amount
of such Costs, PWI and Purchaser will consult regarding the proper amount
thereof to be treated as Remarketing Costs).
Remarketing Proceeds means, in the case of a sale of Equipment Remarketed
pursuant to Section 7, the total sales price therefor received, less
applicable sales or use taxes, and, in the case of a re-lease of Equipment
Remarketed pursuant to Section 7 (either to the existing User or to a third
party), the present value (determined in accordance with Section 7.7) of the
periodic Rental Payments payable by a User less applicable sales, use,
ownership, transaction and personal property taxes, costs of insurance or other
expenses to be borne or paid by Purchaser
Rental Payment means the periodic payment payable by a User under the Contract
applicable thereto during the term of such Contract, Additional Rent or taxes
payable by User, all amounts which represent settlement by the User of
termination liability with respect to Equipment subject to such Contract, all
amounts payable by the User or any insurer to PWI as a result of a loss or
damage to any item of such Equipment beyond repair and any payments to which
PWI may be entitled by reason of the User's failure to timely make such
payments.
Repurchase Price means, with respect to any Contract, Equipment and Payments
under such Contract to be repurchased by PWI pursuant to the provisions of
this Agreement, an amount equal to the sum of (a) an amount sufficient to
permit Purchaser to receive the remaining balance of the Investment Account
with respect to the related Investment Schedule as of the date of repurchase
relating to such Contract, Equipment and Payments; (b) any and all other
amounts due Purchaser by PWI or a User and unpaid under the terms of the
related Investment Schedule with respect to such Contract, Equipment and
Payments, including, but not limited to all reasonable expenses, including
taxes (other than those paid by Purchaser for which Purchaser is reimbursed
by any third party) paid by Purchaser in connection with the ownership of
such Contract, Equipment and Payments, plus interest on such amounts at the
Discount Rate applicable thereto from the date of payment of such expenses by
Purchaser to the date Purchaser is reimbursed for such expenses, and (c) all
Residual Sharing under Section 2.7.
Residual means the anticipated fair market Residual value of the Equipment
used when calculating the Purchase Price for thirty-six (36), forty-eight
(48), and sixty (60) month Contracts.
The Residual value of the Equipment for thirty-six (36) month Contracts shall
be twenty percent (20%) of the Equipment price.
The Residual value of the Equipment for forty-eight (48) month Contracts shall
be fifteen percent (15%) of the Equipment price.
The Residual value of the Equipment for sixty (60) month Contracts shall be
ten (10%) of the Equipment price.
PWI means Printware, Inc., a Minnesota corporation.
PWI Submittal has the meaning ascribed to it in Section 2.1.
Taxes has the meaning ascribed to it in Section 13.12.
Third Party Remarketing means Remarketing to Persons other than Users as
described in Section 7.3.
Total Debt means, as to PWI as of any date of determination, total
indebtedness of PWI, as determined in accordance with generally accepted
accounting principles consistently applied.
User means the party to a Contract or any other party obligated to make
Rental Payments thereunder, including any party entering into a Contract as
a result of a Remarketing of Equipment.
Additional definitions may be found elsewhere in this Agreement.
SECTION 2 THE PURCHASES.
2.1 PWI Submittal; Purchaser Approval.
(a) PWI Submittal. From time to time, PWI may submit proposed Purchases to
Purchaser for approval. Each such request for approval shall be made by the
submission to Purchaser of a request for financing, a form of which is
attached hereto as Exhibit B (a "PWI Submittal"), which shall include the
following:
(i) the following information pertaining to the proposed Users: (A) the
full name and address of each User, and (B) the date of Equipment installation
and acceptance, from each User to PWI;
(ii) a description of the Equipment involved in the proposed Purchase;
a description of the terms of the Contracts involved in the proposed Purchase,
including the amounts and due dates of the Payments, renewal termination or
prepayment options or rights and, if negotiated prior to the PWI Submittal,
any material changes to the standard forms of the Lease Agreement.
In addition, PWI shall submit to Purchaser such other information with respect
to a proposed Purchase and the applicable User as Purchaser may reasonably
request.
(b) Purchaser Approval. Upon receipt of a PWI Submittal and the foregoing
information Purchaser shall promptly conduct such credit investigation and
financial analysis of the proposed Purchase and such User as it shall deem
necessary or appropriate. Purchaser will use its best efforts to inform PWI
in writing of its approval or rejection of the proposed Purchase within three
Business Days from the date of Purchaser's receipt of all of the foregoing
information. If, in a given instance, Purchaser requires additional time to
complete its analysis, Purchaser may so advise PWI, in writing, prior to the
end of the applicable period, whereupon PWI may, in its sole discretion, grant
or deny such additional time; absent such an approved extension, if Purchaser
shall not have approved a proposed Purchase, in writing, within 5 Business
Days from the date of Purchaser's receipt of all of the foregoing information,
the proposed Purchase will be deemed rejected by Purchaser. Unless PWI has
indicated in the PWI Submittal that such PWI Submittal is nonexclusive (which
PWI may do from time to time when circumstances warrant), if Purchaser
approves a proposed Purchase on the terms set forth in the PWI Submittal
relating thereto and issues a Funding Commitment with respect thereto, such
proposed Purchase shall be an "Approved Purchase" hereunder and the parties
shall proceed to consummate the Approved Purchase; provided, however, that if
such Approved Purchase is not consummated by reason of the User failing to
proceed, neither PWI nor Purchaser shall have any liability to the other for
such failure to consummate.
2.2 Funding Commitment. If Purchaser approves a proposed Purchase, it will
issue a funding commitment to PWI, a form of which is attached hereto as
Exhibit C (a "Funding Commitment"), with respect to such proposed Purchase.
A Funding Commitment shall be effective from a credit perspective (as
distinguished from a pricing perspective) for a period of 30 days from the
date of its issuance, unless otherwise specified therein. If PWI desires a
longer commitment period (up to, but not exceeding, 60 days) for a given
proposed Purchase, it will request such longer period in the applicable PWI
Submittal, and Purchaser will reflect its response by specifying the
commitment period in its Funding Commitment. Unless otherwise stated in the
Funding Commitment, Purchaser will consummate the proposed Purchase at the
Purchase Price determined in accordance with Section 2.4 below. In addition,
the Funding Commitment shall specify any other special conditions, terms or
documents Purchaser may reasonably require for funding the proposed
Purchase. If the Funding Commitment specifies terms and conditions that vary
in any material respect from those set forth in the related PWI Submittal, the
proposed Purchase described therein shall not be approved by PWI and the
Purchaser unless PWI authenticates the Funding Commitment indicating in writing
its acceptance of the terms and conditions specified therein. PWI will, within
five Business Days of receipt of such a Funding Commitment, advise Purchaser,
in writing, whether it accepts the terms and conditions specified therein and,
if so, will authenticate the Funding Commitment. If PWI shall not have
authenticated such a Funding Commitment within such five Business Day period,
the varying terms contained therein shall be deemed rejected by PWI. Upon
authentication by PWI of such a Funding Commitment, the purchase shall be
deemed to have been approved (an "Approved Purchase"), and the parties shall
proceed to consummate the Approved Purchase described therein; provided,
however, that if such Approved Purchase is not consummated by reason of the
User failing to proceed, neither PWI nor Purchaser shall have any liability
to the other for such failure to consummate.
2.3 Cancellation of a Funding Commitment. Purchaser reserves the right to
cancel a Funding Commitment at any time prior to the payment of the Purchase
Price if Purchaser determines, in its sole discretion, that any one or more
of the following has occurred: (a) any representation made in the related PWI
Submittal (inclusive of all financial information) is false or misleading in
any material respect; (b) an event has occurred or a condition or circumstance
has arisen which in Purchaser's reasonable judgment could result in a material
adverse change in the business, condition (financial or otherwise),
performance, operations, properties or prospects of a subject User or which,
in Purchaser's reasonable judgment, could impair in any material respect such
User's ability to perform its obligations under the subject Contract; (c) an
existing account of a subject User with Purchaser or its affiliates has become
past due in payments owed by more than 90 days after the due date; or (d) any
event has occurred which would constitute a Default or Event of Default under
this Agreement or a default under the subject Contract. Purchaser shall
provide written notice to PWI of any cancellation of a Funding Commitment in
a Record.
2.4 Determination of Purchase Price. The Purchase Price for each Approved
Purchase will be determined and calculated as the present value of the
Payments under the Contract to be purchased and the present value of
Purchaser's Residual Value of the Equipment covered by such Contract,
discounted at the Discount Rate. However, in no event shall the Purchase
Price for the Equipment be greater than PWI's List Price.
2.5 Purchases. Upon the satisfaction of all conditions to an Approved
Purchase contained in Section 4, including without limitation delivery by PWI
of the Investment Schedule called for therein (pursuant to which PWI will sell,
assign, transfer and deliver to Purchaser the subject Contract and related
Equipment), Purchaser will pay to PWI the Purchase Price for such
Purchase by wire transfer as follows, unless otherwise directed by PWI in a
Record at least one Business Day prior to such payment;
Bank Name: US Bank St. Xxxx, N.A.
Direct Federal Funds Wire
ABA Routing Number 000-0000-00
for the account of Printware, Inc., Account #180120895719
Attention: Xxxx Xxxxx, Controller
Obligations of PWI. Notwithstanding the occurrence of any Purchase described
in Section 2.5, PWI shall remain liable for all its duties and obligations
under the terms of each Contract conveyed to Purchaser pursuant to a Purchase.
PWI shall not be liable to Purchaser, and no recourse to PWI shall be available
to Purchaser, with respect to any User's obligation under any Contract.
Residual Sharing. PWI and Purchaser shall each receive and retain for its
respective account, during the first full calendar month after Investment
Recovery and thereafter a fee equal to fifty percent (50%) of the Payments
generated by the Equipment Pool.
Purchase Commitment. After the earlier of (a) twelve months after the date
of this Agreement has elapsed or (b) the date on which Purchases in the
aggregate amount of five million and no/100dollars ($5,000,000.00) of
Equipment have occurred, no further Equipment Pool will be created, and the
Payments generated by the Equipment will amortize the Equipment
Pools then existing (the "Purchase Commitment"). The first Equipment Pool
will consist of Equipment purchased by Purchaser between December 29, 2000
and December 31, 2001.
Investment Account. An Investment Account shall be established for each
Equipment Pool, to be mutually agreed upon by PWI and the Purchaser. The
Investment Account for each Equipment Pool shall be equal to the Purchase
Price paid by Purchaser. The Investment Account for an Equipment Pool shall
be increased by the dollar weighted average Discount Rate for the
Equipment Pool on the beginning balance and credited with the Payments paid
to Purchaser with respect to the Equipment in such Equipment Pool.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
3.1 By PWI. Except as disclosed by PWI to Purchaser from time to time in
a Record and approved by Purchaser in a Record, PWI represents and warrants
to Purchaser as of the date hereof and as of each Closing Date and Funding
Date that:
(a) Authority. PWI is a corporation duly incorporated and validly
existing and in good standing under the laws of Minnesota and fully licensed,
qualified to do business and in good standing in every jurisdiction in which
it is required by law to be, including every jurisdiction where such licensing
or qualification is or, to the best of PWIs knowledge, will be required for
the purpose of enforcing its rights to any Equipment purchased by Purchaser
hereunder, and under each Contract subject to an Investment Schedule. PWI
has all powers and all permits, consents and authorizations necessary to own
and operate its properties and to carry on its business as presently conducted
and to consummate the transactions contemplated hereby. The execution of,
delivery of and performance under the Documents by PWI (i) are permitted by
the Certificate of Incorporation and Bylaws of PWI and (ii) will not
contravene, or constitute a default under any provision of applicable law or
regulation or of the Certificate of Incorporation or Bylaws of PWI, or of any
mortgage, indenture, contract, agreement or other instrument, or any judgment,
order on decree, binding upon PWI. The Documents, and the several agreements
and instruments contemplated thereby as of their dates of execution and
delivery, have been or will have been duly executed and delivered and are or
will constitute legal, valid and binding obligations of PWI, enforceable in
accordance with their respective terms, subject to limitations
as to enforceability which might result from bankruptcy, insolvency, moratorium
and other similar laws affecting creditor' rights generally and subject to
general principles of equity.
(b) Title to Contracts, Payments and Equipment. As of each Closing Date,
PWI will have good title to the Equipment, the Payments and the Contracts
applicable thereto being sold on such Closing Date, free and clear of all
security interests, liens, claims and encumbrances whatsoever, other than
Permitted Liens, but subject, however, to the rights of the Users under the
applicable Contracts and under applicable law; and PWI shall have full power
and authority to sell its interest in any Contracts, Equipment and Payments to
Purchaser. PWI hereby warrants said title to such Contracts, Equipment and
Payments against all claims and demands whatsoever except as otherwise
permitted by this Agreement. PWI warrants that all taxes due or payable with
respect to the Contracts, Equipment and Payments attributable to periods prior
to the Closing Date have been or will be paid, except for those contested in
good faith.
Contracts. As of each Closing Date, each Contract being sold to Purchaser on
such Closing Date shall be, to PWI's actual knowledge, a valid and binding
obligation enforceable in accordance with its terms against the User. Each
such Contract shall be in full force and effect and, unless
otherwise disclosed to Purchaser in a Record prior to such Closing Date and
reflected in the Purchase Price relating to such Contract, there shall have
been no prepayment of any Payments remaining due thereunder as of such Closing
Date. To PWI's actual knowledge, neither party to such Contract shall be in
default thereunder and no claims, offsets, withholdings, credits,
deductions or defenses shall be threatened or exist (or with notice or the
passage of time, or both, will exist) to the payment of any and all Payments
due thereunder. As of such Closing Date and Funding Date, the original Lease
Agreement pertaining to any such Contract shall have been legended to reflect
Purchaser's interests in such Contract, the Payments thereunder and the
Equipment covered thereby. The information regarding such Contract contained
in the PWI Submittal relating thereto shall be true and correct in all material
respects as of such Closing Date and Funding Date.
Equipment Warranty and Use. As of each Closing Date, PWI hereby represents and
warrants that the Equipment to be purchased by Purchaser on such Closing Date
conforms to any specifications of the User thereof set forth in the Contract
applicable thereto or otherwise specified by the User and agreed to by PWI,
and such User has accepted such Equipment under such Contract as satisfactory
in all respects. PWI agrees that Purchaser shall have the benefit of all
warranties and representations given by PWI to such User with respect to any
Equipment sold to Purchaser hereunder under the terms of each Contract
applicable thereto as well as under warranties furnished to PWI by any other
person with regard to such Equipment to the extent transferable by PWI.
Except as disclosed to Purchaser in a Record prior to any Closing Date
and approved in a Record by Purchaser, PWI warrants that all Equipment
manufactured by or on behalf of PWI and sold hereunder shall be maintainable
in accordance with PWI's standard commercial practices, if installed and used
in a manner consistent with the then current operating guidelines issued by
PWI, and will continue to warrant the maintainability of such Equipment on such
basis for a period of three (3) years following cessation of production of
such Equipment by PWI. To the extent permissible, PWI hereby assigns to
Purchaser all warranties made by the manufacturers and suppliers of any
Equipment not manufactured by or on behalf of PWI. PWI further warrants that
Purchaser shall have no responsibility or liability for any representations,
warranties or other obligations of PWI in respect of any such Equipment
or under the terms of any related Contract except that Purchaser shall not
disturb the quiet enjoyment of the User of any such Equipment so long as the
User is not in default under the terms of the Contract applicable thereto.
PWI warrants that any disclaimer of representation or warranty contained in
this paragraph are contained in the Users' Lease Agreement.
EXCEPT FOR EXPRESS WARRANTIES MADE BY PWI HEREIN, PWI HAS NOT MADE
AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF ANY
KIND, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SUITABILITY, WORKMANSHIP, ADEQUACY, DURABILITY, DESIGN, OPERATION OR
CONDITION OF THE EQUIPMENT OR ANY PART THEREOF, ITS MERCHANTABILITY,
ITS FITNESS FOR USE OR THE PARTICULAR PURPOSES AND USES OF ANY USER,
AS TO ANY PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR
OTHERWISE.
(e) Approvals. As of each Closing Date, no approvals or consents of
or notices to or filings with any governmental department, administrative
agency or instrumentality having jurisdiction over PWI, or any other Person,
shall be necessary to permit PWI to enter into and execute the Documents
applicable to the Purchase to occur on such Closing Date or to perform its
Obligations thereunder or to disclose the applicable Contract to Purchaser;
or if any such approvals, consents, notices or filings are required, such
have been obtained, made or given and are in full force and effect.
Litigation. There is and as of each Closing Date there shall be no action,
suit or proceeding pending or, to the knowledge of PWI overtly threatened,
against PWI before any court, governmental department, administrative agency
or instrumentality which, if such action, suit or proceeding were adversely
determined, would materially and adversely affect the ability of PWI
to perform its Obligations under the Documents. As of each Closing Date there
shall be no action, suit or proceeding pending or overtly threatened involving
any Equipment or any Payments to be purchased on such Closing Date or the
rights of PWI under any Contract applicable thereto.
(g) No Withholding. PWI warrants that except as disclosed to Purchaser
in a Record prior to any Closing Date and approved in a Record by Purchaser,
all Payments will be free of any withholdings, offsets or abatements by the
User obligated to make such Payments. In the event the User asserts any such
withholdings, abatements or offsets, PWI shall not be in breach of this
warranty, provided that PWI promptly remits the amount of such withholding,
offset or abatement to Purchaser pursuant to the provisions of Section 12.l
(g). Each Contract shall provide that the User shall pay or be responsible
for remitting payment for any and all taxes and similar charges which are
imposed by any government, governmental subdivision or other
taxing authority of or in any jurisdiction, and are imposed on or with
respect to (i) the Equipment; (ii) such Contract; and (iii) the Payments
received with respect to the Equipment other than taxes based upon the
lessor's net income.
(h) Accuracy of Information. All factual information heretofore or
contemporaneously herewith furnished by or on behalf of PWI to Purchaser
in writing for purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of PWI to Purchaser will
be, true and accurate in every material respect on the date as of which
such information is dated or certified and not incomplete by omitting to
state any material fact necessary to make such information not misleading.
All balance sheets, statements of operations, of shareholders' equity and of
cash flows, and other financial data of PWI which have been or shall hereafter
be furnished to Purchaser in writing for the purposes of or in connection with
this Agreement, or the transactions contemplated hereby, have been and will be
prepared in accordance with Generally Accepted Accounting principles
consistently applied throughout the periods involved and do and will present
fairly the financial condition of PWI as of the dates thereof and the results
of its operations and its cash flows for the periods covered thereby.
(i) Chief Executive Office. PWI's chief executive office is located at
0000 Xxxxx Xxxxxxxxxx Xxxx, Xx. Xxxx, Xxxxxxxxx 00000.
(j) No Event of Default. No Default or Event of Default has occurred and
is continuing.
(k) Material Adverse Change. Since the date of the latest financial
statement furnished by PWI to Purchaser pursuant to Section 5.3, there has
been no material adverse change in the financial condition, business, or
operations of PWI which change affects PWI's ability to perform its
Obligations.
3.2 By Purchaser. Except as disclosed by Purchaser to PWI from time to
time in a Record and approved by PWI in a Record, Purchaser represents and
warrants to PWI as of the date hereof and as of each Closing Date and
Funding Date that:
(a) Authority. Purchaser is a corporation duly incorporated and validly
existing and in good standing under the laws of Minnesota. Purchaser has all
powers and all permits, consents and authorizations necessary to consummate
the transactions contemplated hereby. The execution of, delivery of and
performance under the Documents by Purchaser (i) are permitted by the
Articles of Incorporation and Bylaws of Purchaser and (ii) will not contravene,
or constitute a default under any provision of applicable law or regulation or
of the Articles of Incorporation or Bylaws of Purchaser, or of any mortgage,
indenture, contract, agreement or other instrument, or any judgment, order or
decree, binding upon Purchaser. This Agreement, and the several agreements and
instruments contemplated hereby to be executed and delivered by Purchaser in
connection with a Purchase hereunder; as of their dates of execution and
delivery, have been or will have been duly executed and delivered and are or
will constitute legal, valid and binding obligations of Purchaser, enforceable
in accordance with their respective terms.
Approvals. As of each Closing Date, no approvals or consents of or notices to
or filings with any governmental department, administrative agency or
instrumentality having jurisdiction over Purchaser; or any other Person, shall
be necessary to permit Purchaser to enter into and execute the Documents
applicable to the Purchase to occur on such Closing Date or to perform its
Obligations thereunder or if any such approvals, consents, notices or filings
are required, such have been obtained, made or given and are in full force and
effect.
(c) Litigation. There is and as of each Closing Date there shall be no
action, suit or proceeding pending or, to the knowledge of Purchaser
threatened, against Purchaser before any court, governmental department,
administrative agency or instrumentality which, if such action, suit or
proceeding were adversely determined, would materially and adversely affect
the ability of Purchaser to perform its Obligations.
(d) Accuracy of Information. All factual information heretofore or
contemporaneously herewith furnished by or on behalf of Purchaser to PWI in
writing for purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all other such factual information
hereafter furnished by or on behalf of Purchaser to PWI will be, true and
accurate in every material respect on the date as of which such information
is dated or certified and not incomplete by omitting to state any material
fact necessary to make such information not misleading.
No Purchaser Event of Default. No Purchaser Default or Purchaser Event of
Default has occurred and is continuing.
Purchaser Lien. No Purchaser Lien exists.
SECTION 4. CONDITIONS TO PURCHASES. Purchaser's obligation to consummate any
Approved Purchase is subject to the performance by PWI of all its obligations
under the Documents pertaining thereto and to the satisfaction of the
following conditions:
4.1 Accuracy of Representations. The representations and warranties
contained herein and in other Documents pertaining to such Approved Purchase
shall be true and correct in all material respects on and as of such Closing
Date or for which exceptions thereto have been disclosed in writing to the
Purchaser and have been approved in writing by the Purchaser.
Delivery of Basic Documents. Purchaser shall have received all the following
documents on or prior to the first Closing Date:
A duly executed copy of this Agreement.
An Opinion of counsel to PWI on such matters as Purchaser may reasonably
request.
A certificate relating to incumbency and authority of officers of PWI to
execute and deliver Documents pursuant to the terms hereof and corporate
resolutions of PWI relating to the transactions contemplated hereby in form
and substance acceptable to Purchaser. Purchaser may conclusively rely on such
certificate until it shall receive a further certificate from PWI canceling
or amending the prior certificate.
Certificates of Good Standing of PWI in the state of Minnesota, and such other
documents as Purchaser may reasonably request relating to the valid existence
of PWI and the authorization, execution and delivery of the Documents and
other matters relevant thereto.
In connection with the first Purchase under this Agreement, and at such later
times as Purchaser may reasonably request, Uniform Commercial Code financing
statements, termination statements, partial releases or subordination's and
other documents executed by PWI as deemed necessary or desirable by Purchaser
in order to perfect Purchaser's first priority interest in the Contracts,
Payments and Equipment Purchased pursuant to this Agreement. Purchaser assumes
responsibility for filing such financing statements in the appropriate
offices.
4.3 Delivery of Supplemental Documents. Purchaser shall have received all
of the following documents on or prior to the Closing Date with respect to any
Purchase to occur on such Closing Date (any document submitted by PWI to
Purchaser which is not an Original of such document shall be deemed to be
certified by PWI as a true, complete and accurate copy of the original of
such document):
(a) With respect to the Contracts, Equipment and Payments being purchased:
the original of each Contract (and all amendments, riders or modifications
thereto) relating to such Contract,the original or other documents (together
with the originals of all amendments, riders or modifications thereto)
constituting such Contract (Chattel Paper); and Purchaser shall require an
Installation Certificate and acceptance by the User.
Purchaser shall require a UCC-3 assignment(s) of PWI's interest in the
Equipment and existing Contracts Purchased in the first Investment Schedule
and for all Equipment and Contracts Purchased after the first Investment
Schedule.
Purchaser shall require that PWI notifies the User of the lease assignment.
An Investment Schedule duly executed by PWI, conveying the Contracts, the
Equipment and the Payments to Purchaser and containing data specific to the
Purchase. Each such Investment Schedule, upon due execution and delivery
thereof by PWI and Purchaser, shall (i) constitute and evidence the sale and
assignment without any further action on the part of either of the parties
hereto, without recourse, except as provided herein, of (A) the Equipment
described therein, free and clear of any and all claims, liens, security
interests or other encumbrances (other than Permitted Liens, the rights of
the User under the Contract applicable thereto and security interests in favor
of Purchaser), (B) the Payments described in such Investment Schedule and (C)
the Contracts described in such Investment Schedule and all of PWI's rights
and remedies (but none of PWI's obligations) thereunder and under any related
agreements with respect to such Payments and Equipment, together with the
right, either in its own name or PWI's name to take all proceedings, legal,
equitable or otherwise, that PWI could have taken with respect thereto save
for such sale and assignment; (ii) confirm Purchaser's obligation to pay the
Purchase Price described therein upon the terms described herein and therein;
and (iii) be deemed to incorporate by reference all representations, warranties
and covenants contained herein by either of the parties hereto with respect to
the Purchase effected thereby.
Certificates of insurance contemplated by Section 5.9.
With respect to the Contracts, Equipment and Payments being purchased, Uniform
Commercial Code financing statements, termination statements, partial releases
or subordination's and other documents executed by PWI as deemed necessary or
desirable by Purchaser in order to perfect Purchaser's first priority interest
therein. Purchaser assumes responsibility for filing such financing statements
in the appropriate offices.
Such other documents, instruments and agreements as Purchaser may reasonably
require to give effect to such Purchase.
In the event PWI is unable to deliver any document contemplated by this Section
4.3 by the applicable Closing Date and Purchaser is willing to accept the
following undertaking with regard to the delivery of such document(s) by PWI
the parties shall so indicate by specifying in a Record the document(s) to
which such undertaking is to apply and the date by which PWI is to complete
such undertaking. In such event PWI will be obligated to deliver such
document(s) in form and substance reasonably satisfactory to Purchaser by the
date so specified. PWI agrees to indemnify, protect, defend and hold Purchaser
harmless, in accordance with the provisions of Section 12.1, from and against
any damages, expenses or losses Purchaser may suffer by reason of PWI's
failure to furnish Purchaser with such document(s), including, but not limited
to required insurance certificates by the Closing Date. In the event PWI is
unable to fulfill its obligations under the terms of this paragraph by the date
specified, with respect to documents, Purchaser may by notice to PWI require
PWI to repurchase one or more of such Contracts and the related Equipment and
Payments to which each such Contract relates; in such event PWI shall promptly
pay to the Purchaser the Repurchase Price for each such Contract and the
related Equipment and Payments. In the event Purchaser is unable to obtain any
certificates of insurance required by paragraph (c) above within sixty (60)
days of the Closing Date of the related Purchase, Purchaser shall so notify PWI
in writing. Purchaser's inability to obtain such certificates of insurance
shall not relieve PWI of its obligations to indemnify Purchaser for failure to
originally deliver such certificates in accordance with the terms of this
paragraph.
4.4 No Defaults or Adverse Change. No Default or Event of Default shall
have occurred and be continuing; and no Default or Event of Default shall
occur on any Closing Date or Funding Date as a result of the transactions to
occur on such Closing Date or Funding Date. As of any Closing Date or Funding
Date, there shall have been no material adverse change in PWI's business,
financial condition or operations since the date of this Agreement or which,
in Purchaser's reasonable judgment, could impair in any material respect PWI's
ability to perform its Obligations.
4.5 Modifications. PWI shall have delivered to Purchaser at least two (2)
Business Days before each Closing Date any modifications to the documents set
forth in this Section 4 applicable to any Purchase to be made on such Closing
Date which have any material adverse affect on the Equipment or Payments
subject to such Purchase. In the event, in Purchaser's reasonable judgment such
modifications adversely affect Purchaser's interest in any proposed Purchase,
Purchaser shall have no obligation to make such Purchase.
SECTION 5. PWI'S COVENANTS. During the term hereof and until PWI's Obligations
hereunder or under any Documents have been fully and indefeasibly fulfilled,
PWI agrees that:
5.1 Further Assurances. PWI will at any time and from time to time,
execute and deliver, and use its commercially reasonable efforts to cause to
be executed and delivered by all necessary Persons such further instruments
and take such further action as may be reasonably requested by Purchaser in
order to cure any defects in the execution and delivery of or to comply with,
or to accomplish the purposes, covenants and agreements contained in the
Documents. PWI shall deliver to Purchaser or its designees such other
documents or information and take such further actions as Purchaser shall,
from time to time, reasonably request. To the extent PWI is permitted
to do so within the limits of any applicable non-disclosure agreements or
other similar restrictions, PWI will furnish Purchaser with such information
as is known to PWI or is readily obtainable by PWI as Purchaser may
reasonably request regarding any User, including, by way of example and
not limitation, information with regard to such User's intentions with regard
to any future use of any Equipment or such User's financial condition and
affairs.
5.2 Defense of Title Identification. PWI shall at all times take all
necessary steps to defeat the assertion by any third party of any claims upon
or against Purchaser's interest in any Contract, Equipment or Payments
purchased by Purchaser pursuant hereto or any part thereof other than the
rights of the User with respect thereto under the terms of the applicable
Contract or under applicable law and the rights of holders of Permitted Liens.
PWI shall not without the prior written consent of Purchaser create or consent
to the creation or existence of any security interest or other lien in any
Equipment except such security interests or liens assigned to Purchaser in
accordance with the terms hereof. PWI agrees at all times to cause all
Equipment and any part thereof to remain personal property and not permit any
part thereof to be affixed to realty in such a way that fixture filings would
be necessary under the Uniform Commercial Code to preserve or protect
Purchaser's interest in the Equipment.
5.3 Financial Statements. PWI shall furnish to Purchaser:
within one hundred twenty (120) days after the end of each fiscal year of PWI
during the term hereof; a copy of the audited annual financial statements
prepared in conformity with generally accepted accounting principles which
shall be accompanied by any Form 10-K filed by PWI with the Securities and
Exchange Commission with respect to such fiscal year;within fifty (50) days
of the end of each of the first three quarters of each fiscal year during the
term hereof; interim financial statements of PWI prepared and certified by a
proper officer of PWI and prepared similarly to the statements referred to in
clause (a) above (subject to normal year-end adjustments) and consisting of at
least a consolidated balance sheet as of the close of such period and
consolidated statements of earnings and cash flows for the quarter then ended
and for the period from the beginning of such fiscal year to the close of such
quarter which shall be accompanied by any Form 1O-Q filed by PWI with the
Securities and Exchange Commission with respect to such period; within fifteen
(15) days of filing, any Form 8-K filed by PWI with the Securities and Exchange
Commission; and such other information concerning PWI's financial condition or
operations, as Purchaser shall reasonably request from time to time.
5.4 Notification of Changed Conditions. If any event described in this
Section 5.4 occurs PWI shall, within five (5) Business Days of actual
knowledge of such event by PWI's treasury staff, give notice to Purchaser of
the following: (i) the occurrence of any Default or Event of Default; (ii) any
legal, judicial or regulatory proceedings affecting PWI which is reasonably
probable to have a material adverse affect on any Equipment any Contract or any
transaction contemplated by the Documents having an aggregate value in excess
of $35,000; (iii) any dispute between PWI and any governmental regulatory
body or other Person which is reasonably probably to have a material adverse
effect on any Contract, any Equipment or any Payment having an aggregate value
in excess of $35,000; (iv) substantial damage to any Equipment having an
aggregate value in excess of $35,000, specifying the nature and extent of
damage and whether such damage is being repaired in due Course, or total loss
or destruction of such Equipment; (v) any other action, event or condition of
any nature of which PWI has knowledge and which in the exercise of its
reasonable judgment PWI concludes will have, or lead to, or result in, a
material adverse affect upon any Equipment, any Payment, any Contract, or any
transaction contemplated by the Documents having an aggregate value in excess
of $35,000; (vi) any exercise in a Record of any right or option by a User
pursuant to any Contract which impacts any related Equipment or Payments; (vii)
any termination breach of or default under any Contract having a value in
excess of $35,000; and (viii) any litigation involving any dispute with regard
to a patent, trademark or copyright applicable to any Equipment having a value
in excess of $35,000.
5.5 Notification of Change of Name Location of Equipment or Chief
Executive Office. Upon obtaining actual knowledge of any of the following
events PWI agrees to notify Purchaser of: (i) any change in the location of
any Equipment, (ii) any change in PWI's or any User's chief executive office
and (iii) any change in the name of PWI or any User. In any instance where
the consent of PWI is required for the relocation of any Equipment, such
consent shall be given without first obtaining the prior consent of Purchaser.
5.6 Access to Information. Upon reasonable prior notice, PWI will afford
to Purchaser access during normal business hours to PWI's records pertaining
to each Contract and the Payments or other amounts due thereunder with respect
to any Equipment purchased by Purchaser pursuant hereto in order that Purchaser
or its representative may examine such records. PWI will also furnish
Purchaser with additional information and reports in such detail as Purchaser
may reasonably request in connection with the transactions contemplated hereby.
In addition, upon reasonable request by Purchaser, at any time or from time to
time following termination of PWI's Remarketing obligations or PWI's
appointment as exclusive Remarketing agent with respect to any Equipment
pursuant to Section 7, PWI shall deliver to Purchaser a copy, which shall be
updated in accordance with PWI's normal practice, of all maintenance, service
and operations manuals then currently in use applicable to such Equipment, and
Purchaser shall be entitled to utilize such manuals with respect to marketing
or servicing such Equipment Purchaser shall treat all such manuals as
confidential and proprietary information of PWI. Purchaser shall be entitled
to make such copies of any such manuals as may be necessary for the marketing
or servicing of such Equipment, provided, however that all such copies shall
continue to display all copyrights and proprietary notices contained in the
original. indicating that such materials were produced by or are proprietary
information of, PWI or any third party licensors.
Maintenance of Equipment. Each Contract submitted to Purchaser for Purchase
shall contain provisions requiring PWI to maintain all Equipment subject to
such Contract in accordance with manufacturer's specifications during the
term of such Contract. PWI shall maintain or cause to be maintained any
Equipment purchased by Purchaser. Purchaser acknowledges that PWI's
obligations under the preceding sentence with respect to the Equipment may be
performed by third parties if and to the extent that such delegation or
arrangement are in accordance with PWI's customary and usual practices and
procedures and provided that PWI shall remain primarily responsible for the
performance of any such delegated duty, obligation or responsibility. PWI
shall cause mandatory field changes to be made to the Equipment at no cost to
Purchaser which PWI makes or causes to be made to all or substantially all
similar equipment at no cost to the users of such similar equipment or as
otherwise provided by the related Contract or hereby. All replacement parts
installed in Equipment by PWI shall become the property of Purchaser, free
and clear of all liens and encumbrances, but subject, however, to the rights
of the User under the applicable Contract. All such replacement parts shall
be of equal or greater value or utility than the parts replaced. Those parts
removed from the Equipment and replaced as described in the preceding
sentence shall revert to and become the property of PWI free and clear of all
liens and encumbrances.
Modifications. Subject to the rights of the User under a Contract, PWI shall
not, without the consent of Purchaser, permit any modification, surrender or
termination of any agreement that could adversely affect the interests sold
to Purchaser pursuant to this Agreement, including but not limited to a
modification of a Contract resulting in any decrease, waiver or compromise of
the Payments sold to Purchaser hereunder. Notwithstanding the terms of the
preceding sentence, in the event PWI requests Purchaser to approve a
modification of a Contract which results in any decrease, waiver or
compromise of any Payments sold to Purchaser for reasons other than a default
by the User under the terms of such Contract, which does not extend the term
of such Contract, Purchaser agrees to do so provided PWI pays to Purchaser an
amount equal to the difference between the present value of the Payments to be
made by the User following such modification and the present value of the
Payments to be made by the User prior to such modification, both of which
shall be determined using the Discount Rate used to determine the Purchase
Price of the Equipment to which such modification applies. During the term of
a Contract, PWI shall not sell, lease or loan to a User any equipment which
results in the election of such User to terminate the applicable Contract as
to any Equipment purchased by Purchaser. At the conclusion of the term of a
Contract, PWI shall not sell, lease or loan to a User any equipment which is
the same or substantially similar model having substantially similar
performance capabilities as any Equipment sold to Purchaser if such lease
results in the election of such User to decline to lease any such Equipment.
5.9 Insurance. Each Contract submitted to Purchaser for Purchase shall
contain provisions requiring the User during the term of such Contract, at
its own cost and expense, to maintain, or cause to be maintained with
financially sound and responsible companies, for and on behalf of PWI and its
assigns, property damage insurance (extended coverage) covering the Equipment
subject to such Contract in an amount at least equal to the remaining balance
of the Investment Account applicable to such Equipment. PWI shall name
Purchaser as additional insured under its general liability policy for all
Contracts acquired by Purchaser. Each User shall be obligated to
furnish PWI with a certificate of such insurance showing PWI and any assignee
of PWI as an additional insured and loss payee to the extent its interests may
appear. PWI shall furnish Purchaser with copies of all information or notices
received from any User or any insurance carriers described in this Section 5.9.
Although the certificates of insurance delivered by Users pursuant to the
Contracts will name PWI and its assignee as loss payee and additional insured,
PWI agrees that Purchaser, as owner of the related Equipment, is entitled to
any insurance proceeds paid pursuant thereto until repurchased by PWI, and PWI
will hold any such proceeds received by it in trust for Purchaser and will
remit them to Purchaser within two Business Days of receipt; provided, however
that, if any such Equipment (collectively the "Loss Items") is repaired or
replaced by PWI under a Contract (and thereby becomes subject to the terms and
conditions of such Contract), PWI upon such replacement, shall be entitled to
such insurance proceeds in reimbursement of its costs of repair or replacement
of the Loss Items. Notwithstanding the provisions of the preceding sentence,
in the event that any insurance proceeds are payable with respect to any
damage to or destruction of any Equipment occurring during the term of any
Contract which are not applied to repair or replacement of such Equipment
and (i) Purchaser has already received Payments or Remarketing Proceeds
sufficient to permit Purchaser to achieve payment in full of the Investment
Account with respect to such Equipment, or (ii) the payment of such insurance
proceeds will permit Purchaser to achieve payment in full of the Investment
Account with respect to such Equipment.
5.10 Extension or Renewal of Contracts. In the event any Contract is
cancelable by the User or subject to non-renewal prior to expiration of the
term of the Contract on which the Purchase thereof was based, PWI agrees to
use commercially reasonable efforts to obtain the extension or renewal of such
Contract for the entire term of the Purchase.
5.11 Compliance with Laws Corporate Existence Governmental Approvals. PWI
will duly observe and conform in all material respects to all valid and
material requirements of governmental authorities necessary to the performance
of its Obligations under the Documents; maintain its corporate existence and
keep in force all franchises, licenses and permits which are necessary and
material to the proper conduct of its business; and obtain or cause to be
obtained any governmental approval which shall be required for the performance
of its Obligations under the Documents.
SECTION 6. CONTRACT PAYMENTS AND ADMINISTRATION.
6.1 Payments Received by PWI After Closing Date. All Payments (including
instruments evidencing such Payments) received by PWI after a Closing Date in
respect of any Equipment shall be received in trust for the benefit of
Purchaser and shall be paid over to Purchaser in accordance with the terms
hereof, except for any amounts described in Section 6.2 deducted from
the payment to be made to PWI with respect to a Purchase.
6.2 Payments Received by PWI Prior to Closing Date. The parties hereto
acknowledge that prior to a Closing Date PWI may receive Payments or other
amounts from the User pursuant to a Contract. Upon Purchaser's Purchase of
the applicable Contracts and the related Equipment on a Closing Date all
Payments from the User pursuant to a Contract after such Closing Date belong
to Purchaser, unless otherwise agreed by PWI and Purchaser.
6.3 Billing and Collection Procedures - Purchased Contracts. Purchaser
will administer billing and collection of Payments under the Contracts
purchased by Purchaser, using Purchaser's standard billing and collection
procedures, as follows:
Reports. In connection with its billing and collection activities with respect
to Contracts it has sold to Purchaser, PWI will provide Purchaser with access
to account summary and payment history information relative to such purchased
Contracts in the first Investment Schedule, as maintained by PWI and periodic
reports at times mutually agreed upon by PWI and Purchaser (including a
monthly report containing aging information pertaining to open accounts under
such Contracts). PWI shall preserve all records, reports and data concerning
such purchased Contracts in the first Investment Schedule for a period
extending at least two (2) years after the last Rental Payment is due under
the terms of such Contracts unless authorized in a Record by Purchaser to
destroy or dispose of such information earlier; and shall, at any time upon
reasonable request by Purchaser and, in any event upon termination of this
Agreement, deliver copies of all, or as much of, such records, reports and
data concerning such Contracts preserved as aforesaid to Purchaser as
Purchaser shall reasonably request. PWI shall deliver copies of such records,
reports and data to Purchaser within ten business days of such request.
Before such delivery, Purchaser shall pay to PWI all out-of-pocket expenses
incurred by PWI in complying with such request.
(b) Taxes. Purchaser will xxxx for sales, use and personal property taxes
which are payable in connection with the Contracts and Payments and prepare
and file returns with respect to the same with appropriate tax or revenue
authorities. Purchaser will also collect and remit such taxes as it collects
to the appropriate jurisdictions.
(c) Unpaid Payments. Purchaser will investigate the reason for non-payment
of amounts due under the Contracts, which have been invoiced. Purchaser shall
contact Users to determine the basis of any non-payment, to effect payment of
due-but-unpaid payments and to discourage delinquencies in payments, doing so
by any lawful means, including, but not limited to, preparing and mailing of
reminder notices, past due notices and/or letters encouraging payment.
(d) Customer Service. PWI shall maintain a customer service number for
User inquiries. PWI shall respond to telephone and written inquiries of
Users concerning the Contracts. PWI shall correct mistaken account references,
User addresses and telephone numbers or other errors and submit such
corrections to Purchaser.
(e) Default by Users. If there shall occur a default by a User under any
Contract, and Purchaser has determined to commence the exercise of remedies
under such Contract as a result of such default, Purchaser shall give notice
of such determination (an "Enforcement Notice") to PWI and User. Upon receipt
of an Enforcement Notice, PWI shall proceed with the exercise of remedies in
connection with such default under such Contract, in Purchaser's name and in
accordance with the collection and enforcement procedures deemed appropriate
by Purchaser. PWI will cooperate with Purchaser in pursuing its collection
and enforcement procedures and exercising its remedies and will take all
actions in that connection reasonably requested by Purchaser. PWI's
cooperation pursuant to the preceding sentence shall include, if agreed to
by Purchaser and PWI, the repossessing of the Equipment and performing by PWI
of its Remarketing Obligations with respect thereto under Section 7 and, at
Purchaser's written request, delivering to Purchaser temporary possession of
the original of the Contract in default (which Purchaser will redeliver to PWI
upon the conclusion of its enforcement procedures and the exercise of its
remedies thereunder).
Reasonable Discretion. Each of PWI's duties and responsibilities under this
Section 6.3 will be performed in accordance with applicable laws. Subject to
such limitation, PWI may take or fail to take whatever action with respect to
the collection of Payments and receipt of funds as PWI, in its sole discretion,
shall deem proper and may agree with any User as to any modification,
alteration, release, compromise, extension, waiver, consent or other similar or
dissimilar indulgence of or with respect to Payments due under the Contracts.
User Allegations of PWI Breaches. If Purchaser reasonably determines that a
User's nonpayment under a Contract results from or relates to PWI's alleged
breach or failure to perform under or with respect to such Contract, then
Purchaser will promptly advise PWI's Treasurer or any person designated by
PWI's Treasurer of the purported breach or failure. Any such advice, which
is furnished by telephone, shall be promptly confirmed in a Record. Upon
receipt of such advice from Purchaser, PWI will promptly investigate such
alleged breach or failure and advise Purchaser whether there exists an Event
of Default or Default under Section 8.2 in connection with such nonpayment by
such User.
6.5 User Early Termination. In the event that a User desires to terminate
a Contract prior to payment of all Payments due Purchaser with respect thereto,
it shall be entitled to do so pursuant to the terms of any option contained in
such Contract, or if there is no such option, subject to the approval of PWI.
If such termination is pursuant to an option contained in a Contract, the
termination payment will be that set forth in such Contract, if such
termination is not pursuant an option contained in such Contract, the
termination payment will be that approved by PWI. In connection with such a
termination (other than one pursuant to an option contained in a Contract), if
the User proposes to pay, and PWI proposes to approve, a termination payment
in an amount less than the Repurchase Price for such Contract and the related
Equipment and Payments, then such termination shall be subject to the approval
of Purchaser, which approval shall not be unreasonably withheld. Any shortfall
between the termination payment paid by the User pursuant to the terms of this
Section 6.5 and the Repurchase Price for such Contract and the related
Equipment and Payments shall be paid by PWI to Purchaser.
6.6 Add-on, Addition or Modification Options.
General. In the event that a User requests any upgrade, addition or
modification to any Equipment under an Investment Schedule and the related
Contract that would result in the replacement of a component or components of
such Equipment (an "Alteration"), or an Add-on to such Equipment, in either
case which would result in an increase in Payments due Purchaser under such
Contract, the party receiving such request shall promptly forward it to the
other party. No such notice shall be required if no increase in Payments due
Purchaser under a Contract will occur as a result of such Alteration or
Add-On. PWI may elect to retain an Alteration or Add-on and the related
additional Rental Payments for its own account by so notifying Purchaser in
a Record, but if PWI does not so elect, Purchaser shall have the exclusive
right to purchase such Alteration or Add-on and the additional Payments
attributable thereto, on the terms and conditions set forth herein, for a
purchase price to be determined jointly in good faith by PWI and Purchaser
(the "Improvement Purchase Price").
Add-ons. In the event that Purchaser purchases an Add-on, title thereto shall
vest in Purchaser and such Add-on shall constitute Equipment for all purposes
under the applicable Contract until title thereto reverts to PWI pursuant to
the terms of this Agreement. If Purchaser does not purchase an Add-on, title
thereto shall vest in PWI, such Add-on shall not constitute Equipment under
the applicable Contract and at the termination of such Contract, PWI may
remove such Add-on from the Equipment or convey it to the User or another
party free and clear of any interest by Purchaser therein (provided that if
PWI does not remove or convey an Add-on at the termination of such Contract,
title thereto shall vest in Purchaser automatically and without further action
by PWI or Purchaser).
Alterations. In the event that Purchaser does not finance a requested
Alteration for any reason (including retention of such Alteration by PWI for
its own account), the following shall apply: PWI shall grant at the time of
such Alteration to Purchaser a first priority security interest in, and first
lien on, such Alteration to secure the obligations of the User under the
related Contract and the Obligations of PWI hereunder with respect to such
Equipment, and at the termination of the related Contract, PWI will do one of
the following (i) remove the Alteration and restore the Equipment to its
original condition, ordinary wear and tear resulting from proper use excepted
(including replacing any components removed from the Equipment and disposed
of or transferred, with equivalent components, of comparable worth and
utility); (ii) convey to Purchaser, at no additional cost to Purchaser, the
Alteration; or (iii) pay to Purchaser an amount equal to the difference
between the then present value of the Payments and the Purchaser's Residual
interest in the Equipment prior to the Alteration and the then present value
of the Payment and the Purchaser's Residual interest in the Equipment
subsequent to the Alteration (utilizing the Discount Rate used in calculating
the original Purchase Price for such Equipment for both present value
calculations). PWI shall be entitled to deal with any components removed
pursuant to clause (b)(i) of the next preceding sentence in its sole
discretion including transferring such components to a third party or
disposing of such components.
6.7 Termination of Contracts. In the event (i) a User exercises an
option to terminate a Contract as contemplated by Section 6.5 and remits to
Purchaser any amount contemplated by Section 6.5, or (ii) PWI repurchases and
pays for Equipment pursuant to the provisions of this Agreement; and following
the occurrence of any such events, then notwithstanding any other provisions
hereof Purchaser's interest in such Equipment and the related Contract and
Payments shall terminate. Any such transfer by Purchaser shall be made on an
"AS IS, WHERE IS, WITH ALL FAULTS" basis, without recourse and without
representation or warranty of any kind, express or implied, other than a
representation that such Equipment is free of any Purchaser's Liens and the
parties hereto shall execute such bills of sale, releases or other documents
as may be reasonably requested by either party in order to consummate said
transfer.
Repurchases by PWI. Except as provided in Sections 4.3, 8 and 9, PWI shall
have no right or obligation to repurchase any Contract or the related
Equipment and Payments without the consent of Purchaser. Any such repurchase
shall be made on an "AS IS, WHERE IS, WITH ALL FAULTS" basis, without
recourse, representation or warranty of any kind, express or implied, other
than a representation that the Contract, Equipment and Payments being
repurchased are free of any Purchaser's Lien and the parties hereto shall
execute such bills of sale, releases or other documents as may be reasonably
requested by either party in order to consummate such repurchase. In the
event of any such repurchase, Purchaser shall have no further obligation with
regard to Rental Payments in connection with the Contract and/or the related
Equipment and Payments repurchased. Upon the repurchase by PWI of any
Contract and/or the related Equipment and Payments, upon request by PWI,
Purchaser agrees to reassign to PWI all of Purchaser's rights under such
Contract, it being acknowledged by Purchaser that in the event PWI elects to
enter into a modification of such Contract in the future to make additional
equipment used or acquired by the User subject to the terms of such Contract,
that Purchaser shall have no interest in such equipment or the rights of PWI
under the terms of the related Contract with respect thereto. In connection
with a reassignment described in the preceding sentence, Purchaser agrees to
execute and deliver to PWI or to any party providing financial accommodations
to PWI with respect to any future equipment made subject to such Contract
acknowledgment of the lack by Purchaser of any interest in such equipment or
any rights under such Contract with respect thereto.
Certain Covenants by Purchaser concerning Title. Purchaser agrees that it
(a) shall not convey title to any Contract, Payments or Equipment to the User
thereof or any other Person wishing to acquire any Contract, Payments or
Equipment or any part thereof, other than PWI, and (b) shall not grant,
create or suffer to exist any Purchase Lien.
SECTION 7. REMARKETING OF EQUIPMENT.
7.1 Appointment as Agent. Purchaser hereby appoints PWI as its agent to
arrange for the Remarketing of Equipment purchased hereunder. Purchaser will
not remarket any Equipment on its own without the prior consent of PWI except
as otherwise provided herein. PWI accepts the foregoing appointment in
accordance with the terms set forth herein. Remarketing activities shall be
performed hereunder by PWI in a manner intended to maximize the Residual of
the Equipment being Remarketed, consistent with PWI's undertaking hereinafter
set forth to use commercially reasonable efforts to remarket the Equipment on
Purchaser's behalf on a nondiscriminatory non-priority basis. Purchaser and
PWI acknowledge that PWI, in the ordinary course of its business, will be
engaged in the marketing of other equipment and that such activity shall not
constitute a breach of any duty of PWI under this Agreement so long as PWI is
otherwise in compliance with its Obligations under the terms of this Section
7.
7.2 Remarketing to Users. PWI will contact each User at least 90 days
prior to the expiration of the term of such User's Contract for the purpose
of determining the User's interest in an extension of the Equipment subject
to such Contract. If a User indicates an interest in an extension of such
Contract, PWI and Purchaser will consult regarding the quote to provide to
the User. The parties contemplate establishing, from time to time,
parameters for quotations, setting forth, among other things, minimum
quotations for various models of Equipment included in the Program, which
will allow PWI to provide quotations at or above such minimums to Users
without the need to consult with Purchaser. In the event that a User desires
to extend a Contract, for a renewal rental below the minimum (or if no
minimum has been established, below the rental that both PWI and Purchaser
agree is appropriate) and PWI desires to accommodate such User's desire, PWI
may do so provided that it pays to Purchaser, an amount equal to the
difference (present valued, using the Discount Rate then in effect, in the
case of renewal rentals).
Remarketing to Third Parties.
General. Any time (i) any Equipment subject to a Contract is being or is to
be returned to Purchaser and is not the subject of an In-Place Remarketing or
(ii) Purchaser gives PWI an Enforcement Notice with respect to a Contract and
the related Equipment, PWI shall use commercially reasonable efforts to
Remarket the Equipment governed by such Contract on Purchaser's behalf on a
non-discriminatory, non-priority basis. Purchaser shall cooperate with PWI
upon PWI's reasonable request, in connection with a Third Party Remarketing,
by assigning Purchaser's rights under the applicable Contract to repossess
the related Equipment and executing any notices following a default under a
Contract furnished by PWI for the purpose of complying with any provision of
the Uniform Commercial Code or other applicable law or such Contract.
Third Party Remarketing: Proceeds Estimate. If Purchaser so requests, prior
to commencing Remarketing of any Equipment, PWI shall provide Purchaser an
evaluation in a Record of the condition of such Equipment, an indication, to
the extent determinable, of whether Remarketing can be facilitated by leaving
the Equipment on the User's premises, a description of ancillary or component
equipment that may be required or desirable to be added to the Equipment to
facilitate its Remarketing, time estimated for Remarketing and such other
information as Purchaser may reasonably request. PWI shall provide Purchaser
with a revision of such information from time to time whenever there is any
material change, in its opinion, with regard to any item thereof. Such
information shall be for Purchaser's information only and PWI shall not be
liable for any damages or other liabilities resulting from Purchaser's
reliance on such information.
Third Party Remarketing: Removal, Storage and Enhancement of Equipment;
Reimbursement of Remarketing Costs. To the extent not performed by the User
under the terms of the applicable Contract, PWI shall be responsible for the
preservation, removal, crating, transportation, and storage of all such
Equipment pending Remarketing, shall perform such necessary services and
repairs to the Equipment to place it in a condition of proper working order
eligible for PWI's standard maintenance program upon Remarketing, including
making any mandatory field changes to the Equipment which PWI makes or causes
to be made to all or substantially all similar for discharging its obligations
under the terms of this sentence. Any such Equipment shall be insured by PWI
against all ordinary risks during the process of removal, transportation,
repair, storage and Remarketing as contemplated by Section 5.9 hereof. Any
such Equipment may be stored by PWI in its own facility or in a public or
private warehouse. PWI shall consult with Purchaser with regard to
improvements to Equipment to enhance its marketability and shall cause such
improvements to be made thereto as may reasonably be determined to be
appropriate by Purchaser.
Third Party Remarketing: Solicitation of offers; Pre-Approved Transactions;
Approval. In connection with any Third Party Remarketing, PWI shall solicit
bona fide offers from third parties to lease the affected Equipment (each, an
"Offer"), consistent with the provisions of Section 7.1 and consistent with
then current market conditions for such Equipment.
Pre-Approved Criteria. The parties contemplate establishing from time to time,
pre-approved criteria for Third Party Remarketing transactions, including but
not limited to minimum new lease terms and minimum quotations for the
Equipment included in the Program (the "Pre-Approved Criteria"). If a
proposed Third Party Remarketing transaction satisfies the then existing and
applicable Pre-Approved Criteria, is acceptable to Purchaser and will at a
minimum provide Purchaser with Remarketing Proceeds at least equal to the
remaining balance of the Investment Account with respect to the related
Investment Schedule, and any and all other amounts due Purchaser by PWI or
the User and unpaid under the Documents with regard to affected Contract and
the related Equipment, including, but not limited to, all reasonable expenses,
including applicable sales or use taxes and property taxes attributable to
lien dates occurring on or prior to date such transaction is closed, paid or
payable by Purchaser (other than those paid by Purchaser for which Purchaser
is reimbursed by any third party) in connection with such transaction or the
ownership, financing or the Remarketing of the related Equipment, PWI may
conclude such proposed Third Party Remarketing transaction without submitting
it to Purchaser for approval.
Obligations of Purchaser. In connection with a Remarketing under this
Section 7 involving the re-lease of Equipment for an extension term with the
User under an existing Contract or the lease of Equipment to a third party,
PWI will execute and deliver such lease documentation, consistent with the
related Offer, as shall be mutually satisfactory to it and such User or third
party, as the case may be. In addition, Purchaser agrees to observe any
reasonable confidentiality conditions requested by PWI or any User of any
such Equipment in connection with any Remarketing.
7.5 Termination of Remarketing Arrangement.
By Purchaser. (i) In the event PWI fails to present to Purchaser a bona fide
Offer for the Remarketing of any Equipment described in an Investment Schedule
(A) in the case of a default situation, within 90 days from the date of
availability of such Equipment for Remarketing (PWI having used commercially
reasonable efforts to repossess such Equipment pursuant to Section 7.3(b)) and
(B) in all other cases, within 90 days from the date of expiration or earlier
termination of the Contract relating to such Equipment, Purchaser may elect to
terminate PWI's appointment hereunder as exclusive Remarketing agent with
respect to such Equipment upon 30 days' notice in a Record to PWI, and (ii) in
the event that Purchaser has elected under clause (i) to terminate PWI's
exclusive appointment hereunder as Remarketing agent with respect to Equipment
representing twenty-five percent (25%) of all Equipment initially included in
an Equipment Pool (measured in terms of the percentage represented by the
original balance of the Investment Account with respect to such Equipment of
the aggregate sum of the original balance of the Investment Account with
respect to all Equipment included in such Equipment Pool), at any time
thereafter Purchaser may, upon 30 days' notice in a Record to PWI, elect to
terminate PWI's exclusive appointment hereunder as Remarketing agent with
respect to all Equipment under the Investment Schedule relating to such
Equipment Pool. In the event Purchaser elects to terminate PWI's exclusive
appointment as Remarketing agent with respect to any Equipment pursuant to
this Section 7.5(a), PWI's rights to share in Remarketing Proceeds under
Section 7.8(a) with respect to any and all such Equipment subsequently
remarketed by Purchaser shall be eliminated.
By PWI. In the event at any time when PWI has the right to serve as
Purchaser's exclusive Remarketing Agent, PWI presents Purchaser with a bona
fide Offer to lease any such Equipment from a prospective User of such
Equipment on terms and conditions consistent with the current market
conditions for such Equipment and such Offer is sufficient to provide for
payment to Purchaser of an amount sufficient to achieve payment in full of
the balance of the Investment Account with respect thereto and any and all
other amounts due Purchaser by PWI or User and unpaid under the documents
with respect to the related Investment Schedule including, but not limited
to, all reasonable expenses, including applicable sales or use taxes and
property taxes attributable to lien dates occurring on or prior to date the
transaction covered by such Offer is closed, paid or payable by Purchaser
(other than those paid by Purchaser for which Purchaser is reimbursed by any
third party) in connection with the ownership, financing or remarketing of
such Equipment, and Purchaser refuses to accept such Offer on any basis
other than a reasonable determination by Purchaser that the proposed User is
not acceptable to Purchaser from a credit standpoint to perform its
obligations with respect to such Offer, PWI may elect to terminate its
Remarketing obligations with respect to such Equipment under this Agreement
upon notice to Purchaser, within thirty (30) days of such refusal.
General. Upon termination by either party of PWI's appointment as exclusive
Remarketing agent or PWI's Remarketing obligations with respect to any
Equipment, (i) Purchaser shall be free to sell, lease or otherwise dispose of
any such Equipment without any further obligations to PWI except as set forth
in the last sentence of Section 7.5(a); (ii) PWI will cooperate with Purchaser,
in any reasonable manner requested by Purchaser and at Purchaser's expense,
in connection with Purchaser's efforts to remarket such Equipment and (iii)
at Purchaser's election and expense, PWI shall store such equipment in PWI's
facility or in a public or private warehouse or assemble and deliver such
Equipment within thirty (30) days of receipt of a written notice from
Purchaser designating a place for delivery. Notwithstanding the foregoing,
in the event within one year of termination of PWI's Remarketing obligations
by PWI pursuant to Section 7.5(b), Purchaser enters into an agreement to
lease any such Equipment to the User or any party from whom PWI has forwarded
a bona fide Offer to purchase or lease such Equipment in accordance with the
terms of Section 7.2 or 7.3(c), upon consummation of the transaction, the
Investment Account applicable to such Equipment shall be credited as of the
date of such bona fide Offer with the amount that would have been so credited
had such sale or lease been consummated as a Remarketing by PWI, provided that
if such Investment Account is closed at the time of such consummation and the
transaction would have resulted in a credit to such Investment Account,
Purchaser shall pay to PWI the amount to which PWI would have been entitled
with respect to such transaction under Section 7.8(a). Purchaser acknowledges
that PWI shall be entitled to continue to remarket Equipment following the
termination of PWI's appointment as exclusive Remarketing Agent in accordance
with the provisions of this Section 7 and that the proceeds of any Remarketing
accomplished by PWI during such period shall be allocated and distributed in
the same manner as those arising from a Remarketing accomplished by PWI prior
to such termination.
7.6 Additional Equipment. In connection with any Remarketing of any
Equipment or a Remarketing of any Equipment by Purchaser, PWI agrees to offer
such maintenance services, spare parts, training and additional equipment for
the benefit of any Person operating and using any such Equipment for a period
of three (3) years following cessation of production of such Equipment by PWI
on terms, conditions, policies and prices that PWI offers to any other user of
similar equipment at the time of such Remarketing. PWI agrees to offer to any
such User other requested services generally furnished by PWI with respect to
equipment similar to the subject Equipment, subject to PWI's then current
terms, conditions, policies and prices.
7.7 Costs and Expenses of Remarketing. PWI's out-of-pocket costs and
expenses incurred in connection with PWI's Remarketing obligations under this
Agreement shall be paid from the proceeds of such Remarketing, including from
any Payments to be paid over to Purchaser and, to the extent such proceeds are
insufficient, shall be paid by Purchaser to PWI upon demand.
7.8 Distribution of Remarketing Proceeds. The proceeds of Remarketing
shall be distributed in the following order:
First, to PWI in payment of PWI's out-of-pocket costs and expenses as provided
in Section 7.7, unless PWI chooses not to receive such payment and notifies
Purchaser of such choice in writing;
Second, to Purchaser;
Third, to Purchaser and PWI, to be distributed as provided in Section 2.7.
SECTION 8. DEFAULT AND REMEDIES.
8.1 Events Giving Rise to Termination of Purchaser's Obligations. Upon
the occurrence of any of the following Events of Default:
The liquidation or dissolution of PWI or the commencement of any acts relative
thereto, or, without the prior consent of Purchaser, any sale or other
disposition of all or substantially all of the assets of PWI including any
merger or consolidation of PWI unless PWI's the surviving entity or the
material breach by PWI of any representation or warranty contained in this
Agreement;
A material adverse change from the date hereof in the financial or operating
condition of PWI which change materially affects PWI's ability to perform its
Obligations; or
A material breach or default by PWI in the due observance or performance of
any of the covenants contained herein, provided that the condition giving rise
to such Event of Default is not cured by PWI within thirty (30) Business Days
after written notice from Purchaser, of the occurrence of such Event of
Default; then upon the election of Purchaser, evidenced by written notice to
PWI, Purchaser may exercise one or more of the following remedies:
(i) Purchaser may direct the Users to make Payments to Purchaser, provided,
however, that upon the occurrence of an Event of Default under Section 8.1(a)
or
8.1(c) if any one of such Events of Default shall be with respect to
an individual User or particular Investment Schedule, Purchaser's rights under
this clause (i) shall be limited to the Investment Schedule or User with
respect to which such Event of Default has occurred; or
Purchaser shall have the right to affix plates or markings on items of
Equipment to indicate Purchaser's interest therein provided such action does
not interfere with the safe or normal operation of such Equipment, or
Purchaser may immediately terminate any obligation of Purchaser to PWI
hereunder, including the obligation to make any additional Purchases pursuant
hereto (other than any obligation to make payments of funds due PWI by
Purchaser with respect to Contracts or Equipment previously purchased by
Purchaser).
8.2 Events giving Rise to Obligations on the Part of PWI to Repurchase
Equipment. Upon the occurrence of any of the following Events of Default:
Breach of any Contract by PWI or default in the due observance or performance
by PWI of any covenant, condition or provision required to be observed or
performed in such Contract resulting (i) in the User or its successors or
assigns attempting to terminate such Contract or (ii) in the User or its
successors and assigns exercising any right or otherwise attempting to reduce
or withhold any Payment due under the terms of such Contract which Payment
is not thereafter promptly made on behalf of the User by PWI;
A material breach or default by PWI in the due observance or performance of
any of the covenants contained in Sections 5.1, 5.2, 5.7, 5.8 or 7.3(c)
hereof, provided that the condition giving rise to such Event of Default is
not cured by PWI thirty (30) Business Days after written notice from
Purchaser of the occurrence of such Event of Default, or any warranty or
representation contained in Section 3.1 is determined to be false in any
material respect as of the date given;
Filing by PWI of a petition for relief under the Bankruptcy Code or other
proceeding seeking liquidation, dissolution reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other such official of it or any
substantial part of its property, or consenting to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or making a general assignment for
the benefit of creditors, or failing generally to pay its debts as they become
due, or taking any corporate action to authorize any of the foregoing;
Filing of an involuntary petition or the commencement of any other proceeding
against PWI seeking liquidation, dissolution, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding is either consented to by PWI or shall remain undismissed for a
period of sixty (60) days; or the issuance of a warrant of attachment,
execution or similar process against PWI and such warrant remains unbonded,
unstayed or undismissed for a period of ten (10) Business Days from written
notice to PWI; or
Lack by Purchaser of good title to or first priority security interest in any
Equipment or Payments or the rights of PWI under the terms of the Contract
applicable thereto;
then upon the election of Purchaser, evidenced by written notice to PWI,
Purchaser may exercise one or more of the following remedies:
(i) Purchaser may require PWI to repurchase the Equipment and
the related Contract and Payments by paying to the Purchaser the Repurchase
Price for each such Contract and the related Equipment and Payments, whereupon
PWI shall immediately pay to Purchaser such amount; or
Purchaser may exercise any and all of the remedies provided in Section 8.1;
or
Purchaser may avail itself of any other right or remedy provided by any
applicable statute or otherwise available at law or in equity; provided,
however, that upon the occurrence of an Event of Default in respect of an
Individual User or particular Investment Schedule, Purchaser's rights to
exercise the foregone remedies shall be limited to the Investment Schedule or
User with respect to which such Event of Default has occurred.
SECTION 9. PURCHASER DEFAULT AND REMEDIES. Upon the occurrence of any of the
following Purchaser Events of Default:
The liquidation or dissolution of Purchaser or the commencement of any acts
relative thereto, or, without the prior consent of PWI, any sale or other
disposition of all or substantially all of the assets of Purchaser including
any merger or consolidation of Purchaser unless Purchaser is the surviving
entity (other than a liquidation, dissolution, disposition of assets, sale of
stock, merger, consolidation or other form of recreation resulting in the
continuation of Purchaser's business by an entity under the control of
ownership substantially similar to the current ownership of Purchaser,
following which Purchaser or its successor continues to engage in the
business of financing equipment and servicing and purchasing or discounting
of receivables).
A material adverse change from the date hereof in the financial or operating
condition of Purchaser which change affects Purchaser's ability to perform
its Obligations hereunder;
A material breach or default by Purchaser in the due observance or performance
of any of the covenants contained in Sections 2.7, 6.8, 7.1, 7.4, 7.7 or 11,
provided that the condition giving rise to such breach is not owed by
Purchaser within thirty (30) Business Days after written notice from Purchaser
of the occurrence of such breach by PWI;
Filing by Purchaser of a petition for relief under the Bankruptcy Code or
other proceeding seeking Liquidation, dissolution, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, or consenting to any such relief or to
the appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or making a general assignment
for the benefit of creditors, or failing generally to pay its debts as they
become due, or taking any corporate action to authorize any of the foregoing;
or
Filing of an involuntary petition or the commencement of any other proceeding
against Purchaser seeking liquidation, dissolution, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed for a period of sixty (60) days, or the
issuance of a warrant of attachment, execution or similar process against
Purchaser and such warrant remains unbonded, unstayed or undismissed for a
period of ten (10) Business Days from notice to Purchaser; then upon the
election of PWI, evidenced by notice to Purchaser, PWI may exercise one or
more of the following remedies:
(i) PWI shall have the right to bid to repurchase Equipment and the
associated Payments and Contracts which are the subject of such action or
Purchaser Default and to direct Users under Contracts to make all Payments
thereunder to PWI provided, however, that upon the occurrence of an event
under Section 9(a) or Section 9(c), if any one of such events shall be with
respect to an individual User or particular Investment Schedule, PWI's rights
under this clause (i) shall be limited to the Investment Schedule or User with
respect to which such Purchaser Event of Default has occurred;
PWI shall have the option to immediately terminate Purchaser's rights under
Sections 3.1(d), 4.3, 5.1, 5.6 , 6.4, 6.6(a), 7.1(b), 7.5(c) and 12.2;
PWI may immediately terminate any obligation of PWI to Purchaser hereunder to
conclude any additional Purchases pursuant hereto; and
In addition, in the event of a Purchaser Default described in Section 9(c),
PWI shall not be obligated to Remarket any Equipment.
If PWI makes a repurchase of a Contract and the related Equipment and Payments
permitted by this Section 9, PWI shall pay to the Purchaser the Repurchase
Price for each such Contract and the related Equipment and Payments.
SECTION 10. POWER OF ATTORNEY.
PWI does hereby irrevocably during the term of this Agreement constitute and
appoint Purchaser its true and lawful attorney with full power of
substitution, for it and in its name, place and stead, (1) to ask, demand,
collect, receive, receipt for, xxx for, compound and give acquittance for any
and all Payments which are Purchased by Purchaser under this Agreement with
full power to settle, adjust or compromise any claim therefor as fully as PWI
could itself do, (ii) to endorse the name of PWI on all commercial paper given
in payment or in part payment thereof and (iii) subject to the notice
requirements and repurchase election set forth in Section 6.3(f), in its
discretion to file any claim or take any other action or proceedings, either
in its own name or in the name of PWI, or otherwise, which Purchaser may deem
necessary or appropriate to protect and preserve the right, title and interest
of Purchaser in and to the Payments due under the applicable Contract and
Purchaser's interest in any of the Equipment purchased by Purchaser from PWI
hereunder.
Purchaser does hereby irrevocably during the term of this Agreement constitute
and appoint PWI its true and lawful attorney with full power of substitution,
for it and in its name, place and stead, (1) to ask, demand, collect, receive,
receipt for, xxx for, compound and give acquittance for any and all Payments
to which PWI is entitled under this Agreement with full power to settle,
adjust or compromise any claim therefor as fully as Purchaser could itself do,
(ii) to endorse the name of Purchaser on all commercial paper given in payment
or in part payment thereof and (iii) subject to the notice requirements and
repurchase election set forth in Section 6.3(f), in its discretion to file any
claim or take any other action or proceedings, either in its own name or in the
name of Purchaser, or otherwise, which PWI may deem necessary or appropriate
to protect and preserve the right, title and interest of PWI in and to the
Payments due under the applicable Contract and PWI's interest in any of the
Equipment purchased by Purchaser from PWI hereunder.
SECTION 11. QUIET ENJOYMENT. Notwithstanding anything contained in this
Agreement or any of the Documents, neither Purchaser nor any party claiming
through or under Purchaser, shall disturb any User's quiet and peaceful
possession and unrestricted use of any Equipment for its intended purpose as
long as such User is not in default under the Contract applicable to such
Equipment. To the extent Purchaser has notice thereof, Purchaser, and all
parties claiming through or under Purchaser, shall comply with all reasonable
procedures and regulations established by any User relating to security
measures and confidential or proprietary information.
SECTION 12. INDEMNITIES.
12.1 PWI's Indemnities. PWI shall indemnify, protect, defend and hold
harmless Purchaser, its successors and assigns, from and against any and all
suits, claim's, counterclaims, damages (including consequential damages
payable to a third party), penalties, expenses and losses it shall suffer
(including but not limited to reasonable attorneys' fees and expenses) as a
result of:
the manufacture, design, assembly, installation, use, operation, leasing
(other than losses resulting from a User's failure to perform its obligations
under a Contract), sale, delivery, storage, maintenance or malfunction of any
Equipment, including, without limitation any claim or allegation of product
liability, strict liability or negligence of PWI, its agents and employees
and suppliers of pares and services, provided that, the indemnification set
forth in this clause (a) shall not be, nor be deemed to be, any warranty or
representation concerning the Equipment;
any claim that any Equipment or any part thereof , or any license furnished
by PWI constitutes an infringement of any patent, license, trademark,
copyright or registered design; any claim of trade secret violations relating
to any Equipment, or any interest or penalty which at any time may be asserted
or adjudged against Purchaser with respect to the items mentioned in this
Section 12.1(b), provided that, the indemnification set forth in this clause
(b) shall not be, nor be deemed to be, any warranty or representation
concerning the Equipment; failure by PWI to pay any and all expenses to be
borne by PWI under the Documents; any breaches or claimed breaches of any
representations, warranties, covenants or other obligations of PWI contained
in any of the Documents, or any other agreements executed in connection
therewith; lack by Purchaser of good title to (or the lack of first priority
perfected status of any security interest in) any Equipment, Payments or
Contract purchased by Purchaser from PWI hereunder; the failure of PWI to be
qualified to do business in any jurisdiction where any Equipment is located;
any withholdings, stop work orders, claims, counterclaims, recoupments,
abatements, setoffs, assessments of liquidated damages by any User or the
termination of a Contract by the User for Equipment malfunction; and any
failure by any User to make any Payment as a result of a material breach by
PWI of any of its obligations under any Contract or other agreement with such
User including any Maintenance Agreement; provided that PWI shall not be
liable for the payment of any portion of such suits, claims, counterclaims,
damages penalties, expenses or losses Purchaser shall suffer resulting from
Purchaser's gross negligence or willful misconduct. The Purchaser shall
notify PWI of any event requiring indemnification under this Section 12.1
within ten days following the Purchaser's receipt of notice of commencement
of any action or proceeding, or the Purchaser obtaining knowledge of the
occurrence of any other event, giving rise to a claim for indemnification
hereunder. PWI will be entitled (but not obligated) to assume the defense or
settlement of any such action or proceeding or to participate in any
negotiations to settle or otherwise resolve any claim using counsel of its
choice. If PWI elects to assume the defense or settlement of any such action
or proceeding, the Purchaser (and its counsel) may continue to participate at
its own expense in such action or proceeding.
12.2 Purchaser's Indemnities. Purchaser shall indemnify, protect, defend
and hold harmless PWI its successors and assigns, from and against any and all
suits, claims. counterclaims, damages (including consequential damages payable
to a third party), penalties, expenses and losses it shall suffer (including
but not limited to reasonable attorneys' fees and expenses) as a result of:
failure by Purchaser to pay any and all expenses to be borne by Purchaser
under the Documents; any breaches or claimed breaches of any representations,
warranties, covenants, or other obligations of Purchaser contained in Sections
2.7, 6.3, 6.4, 6.6, 7.1, 7.4, 7.7 or 11 in this Agreement; and lack by PWI of
good title to (or the lack of first priority perfected status of any security
interest in) any Equipment, Payments or Contract repurchased by PWI from
Purchaser hereunder; provided that Purchaser shall not be liable for the
payment of any portion of such suits, claims, counterclaims, damages
penalties, expenses or losses PWI shall suffer resulting from PWI's gross
negligence or willful misconduct. PWI shall notify the Purchaser of any
event requiring indemnification under this Section 12.2 within ten days
following PWI's receipt of notice of commencement of any action or proceeding,
or PWI obtaining knowledge of the occurrence of any other event, giving rise
to a claim for indemnification hereunder. The Purchaser will be entitled
(but not obligated) to assume the defense or settlement of any such action
or proceeding or to participate in any negotiations to settle or otherwise
resolve any claim using counsel of its choice. If the Purchaser elects to
assume the defense or settlement of any such action or proceeding, PWI (and
its counsel) may continue to participate at its own expense in such action or
proceeding.
12.3 Payment. Subject to the provisions of Section 12.4, such indemnity
amounts shall be payable by the indemnifying party upon written demand by
party to be indemnified, stating the amount due substantiated in a Record
and referencing the applicable indemnity or indemnities.
12.4 Defense of Claims. Liability of an indemnifying party under this
Agreement to indemnify against any claim or liability asserted against the
party to be indemnified by a third party shall be conditioned upon (i) the
giving of notice in a Record by the party to be indemnified of the assertion
of any such claim or liability with reasonable promptness and (ii) reasonable
cooperation of the party being indemnified in defending any claim or asserted
liability, provided, however, that failure to promptly notify the indemnifying
party of any claim or liability hereunder shall relieve the indemnifying
party of liability hereunder only to the extent that such failure to notify
impairs the indemnifying party's position with respect to the defense of such
claim or liability. The mere assertion of such a claim by such third party or
the institution of any action related thereto, shall not result in any
liability to such third party on the part of the indemnifying party unless
such claim is reduced to final judgment or admitted in writing by the
indemnifying party. The indemnifying party shall have, at its election, the
right to compromise or defend such claim or liability by counsel of its
choosing at its own expense. Subject to the provisions of the following
sentence, and provided that there has not occurred a default on the part of
the indemnifying party under the terms hereof, the fees of any counsel which
the party being indemnified elects to employ in connection with any such
claim or liability shall be at such party's expense. If, following written
notice to the indemnifying party as set forth above, the indemnifying party
declines or otherwise fails to (i) promptly pay or settle the same or (ii)
vigorously investigate and defend the same, the party to be indemnified,
following delivery of written notice to the indemnifying party of its
election to do so, may investigate and defend the same and the indemnifying
party shall reimburse the party being indemnified for all judgments,
settlement payments and reasonable expenses, including but not limited to
reasonable attorneys' fees and expenses, incurred and paid by it, in
connection therewith.
SECTION 13. MISCELLANEOUS.
13.1 No Waiver: Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of Purchaser or PWI, any right, power or privilege
hereunder, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law or in any other agreement.
The exercise of any remedies by either party hereto hereunder, shall not limit
in any way the right of such party to exercise any other applicable remedies
hereunder or under applicable law or any other agreement.
13.2 Survival of Agreements. Notwithstanding the termination of any of
the Documents, all agreements, covenants, indemnities, representations and
warranties made in the Documents shall survive the closing of each Purchase
and continue in full force and effect to the extent required for the full
observance and performance thereof.
13.3 Successors. This Agreement shall be binding upon PWI, its successors,
and its permitted assigns, and Purchaser and its successors and permitted
assigns and shall inure to the benefit of Purchaser's and PWI's successors and
permitted assigns.
13.4 Counterparts. This Agreement may be executed in any number of
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
13.5 Severability. In case any one of more of the provisions contained in
the Documents or any other documents executed in connection therewith should
be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained therein shall not in
any way be affected thereby.
13.6 Notices. All notices, requests, consents and demands shall be
contained in a Record and given to or made upon the respective parties hereto
as follows:
If to Purchaser, to:
Minnwest Capital Corporation
00000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: T. Xxxx XxXxx
President
and/or
Xxxxx X. Xxxxxx
Executive Vice President
Phone No: 612/000-0000
FAX No: 612/000-0000
If to PWI, to:
Printware, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxx, Executive Vice President
& Chief Financial Officer
Phone No: 651/000-0000
FAX No: 651/000-0000
All notices and other communications given to any party hereto in accordance
with the provisions hereof shall be deemed to have been given to such party
when sent by registered or certified mail, or overnight courier, if by mail
or overnight courier; or when received if sent by fax or other electronic or
digital means in each case addressed to such party as provided herein or in
accordance with the latest unrevoked direction from such party. It is the
intention of the parties that non-written Records shall have the same effect
as written Records unless use of writing or written notice is specifically
required by the terms of this Agreement. A Record is Authenticated for the
purposes of this agreement if the symbol or methodology executed or adopted
by the Authenticating party complies with an attribution procedure agreed to
or adopted by the parties. Otherwise, Authentication may be proven in any
manner, including by showing that a procedure existed by which a party
necessarily must have executed or adopted a symbol or methodology in order
to proceed further in the use or processing of the Record. A Record which
identifies a party who apparently sent the Record is attributable to the
identified party unless the receiving party (1) should have discovered a
mistake in the sender's identity by applying a verification procedure
agreed upon by the parties or (2) otherwise should have discovered that
someone other than the identified party sent the Record using the
identified party's identification by the exercise of care reasonable in
the circumstances. A party who sends a Record is responsible for errors
that occur in transmission unless the party receiving the Record should
have discovered the error by the exercise of care reasonable in the
circumstances or the error is caused by the recipient or its agent. If the
originator of an electronic or digital Record message requests or has agreed
with the addressee of the Record that receipt of the Record be acknowledged.
(a) If the originator indicated in the Record or otherwise that the
message contained in the Record was conditional on receipt of an
acknowledgment, the Record does not bind the originator until acknowledgment
is received.
(b) If the originator requested acknowledgment but did not state that the
Record was conditional on acknowledgment and acknowledgment has not been
received within a reasonable time after the message was sent, the originator
may give notice to the addressee that it has not received acknowledgment and
either retract the Record or specify a further reasonable time within which
acknowledgment must be received or the Record will be treated as of no binding
effect. If acknowledgment is not received within that additional time, the
originator may treat the Record as of no binding effect.
(c) If the originator requested acknowledgment and specified a time for
receipt of acknowledgment, the originator may exercise the options in the
preceding clause (b) if receipt does not occur within that time.
Notwithstanding the foregoing, in the case of any non-written Record, if
either party requires such record to be in written form and Authenticated by
manual signature for any reason (e.g. to make any such Record admissible in
evidence, to satisfy an applicable statute of frauds, to be in appropriate
form for filing or recording or to satisfy the requirements of any
governmental authority or agency having jurisdiction over such party), then
upon such party's request, the other party shall manually sign such Record
in written form and deliver it to the requesting party.
13.7 Amendment. This Agreement may not be amended except in writing
signed by both Purchaser and PWI.
13.8 Descriptive Headings. Descriptive headings of the several Sections
hereof are inserted for conveyance only and do not constitute a part hereof.
13.9 Governing Law. This Agreement shall be governed by the laws of the
State of Minnesota.
13.10 Assignment. Except as contemplated by Sections 8.1(a) and 9(a),
neither this Agreement nor any part hereof may be assigned by either party
hereto without the prior consent of the other party hereto, and, except as
expressly permitted or contemplated by this Agreement, Purchaser may not
assign or transfer any items of Equipment purchased hereunder without the
prior consent of PWI. Notwithstanding the provisions of the preceding
sentence, Purchaser acknowledges and agrees that PWI may delegate the
responsibility for performance of any obligations of PWI under the terms of
the Documents to be performed outside of the United States to a subsidiary
of PWI, provided, however, that PWI shall remain primarily responsible for
the performance of all such obligations. Further, notwithstanding the
provisions of the first sentence of this Section 13.10, PWI acknowledges and
agrees that Purchaser shall be permitted to assign its interest in Payments
purchased hereunder, its interest in the associated Equipment and its rights
under the related Contract and this Agreement in connection with the sale of
all or portion of Purchaser's portfolio of Contracts and the related Equipment
and Payments, provided that (i) Purchaser shall remain directly responsible for
the performance of its obligations hereunder, including, but not limited to
its obligations to reconvey Equipment and Payments to PWI in accordance with
the terms hereof, and is able to perform all such obligations without first
obtaining the consent or approval of any third party, (ii) no assignee is
permitted to bring any claim against PWI or any User other than through an
action undertaken by Purchaser, and (iii) no Purchaser Lien shall be created
in connection with any such assignment.
13.11 Expenses. In the event there shall occur a default by a party
hereto in the performance of its Obligations hereunder, the non-prevailing
party shall pay the prevailing party upon demand all reasonable out-of-pocket
expenses of the prevailing party (including reasonable fees and expenses of
counsel for the prevailing party) in connection with the enforcement of the
Documents or collection efforts thereunder, the reasonable fees and out-of-
pocket expenses of counsel for the prevailing party with respect to advising
prevailing party as to its rights and responsibilities under the documents,
all costs and expenses, if any, in connection with appraisals of any part of
any Equipment, advances made by a party to protect its right in such
Equipment, Payments and all court costs and costs of collection.
13.12 Tax Indemnity.
(a) PWI agrees to pay, and shall indemnify, protect, defend and hold
harmless Purchaser, its successors and assigns, on a net after-tax basis,
from and against, any and all taxes (together with any fines, penalties
or interest thereon) (collectively "Taxes") which are imposed by any
government, governmental subdivision or other taxing authority of or in
any jurisdiction, and are imposed on or with respect to:
(i) the Equipment;
the Contracts between PWI and the Users of the Equipment;
the Payments, receipts or earnings arising from or received with respect to,
the Equipment, and the importation of the Equipment or the acceptance,
delivery, lease, sublease, supply, ownership, possession use, repair,
maintenance, overhaul, transportation, storage- return or other disposition
thereof; provided, however, that the foregoing indemnity shall not apply to
Taxes imposed by the Federal Government of the United States of America or
any State (including the District of Columbia and any possession of the United
States), or any political subdivision of a State or taxes collected by
Purchaser or which Purchaser is obligated to xxxx and collect pursuant to
Section 6.3.
(b) Purchases of Equipment hereunder will be made on the understanding
that Purchaser intends to claim such deductions, credits and other benefits
as are provided to an owner of property, including without limitation, the
Modified Accelerated Cost Recovery System Deductions on the Equipment under
Section 168 and related sections of the Internal Revenue Code and PWI agrees
not to assert any position which conflicts with such understanding.
13.13 Term. The term of this Agreement shall commence as of the date
hereof and shall continue from year to year until such time as either party
gives the other party ninety (90) days advance written notice of its
intention to discontinue additional Purchases. Notwithstanding the foregoing,
this Agreement shall continue in full force and effect (a) with respect to
any Funding Commitment then outstanding, until the Purchase contemplated
thereby is consummated or the Funding Commitment expires, and (b) with
respect to each outstanding Contract then subject to a Purchase and each
Contract to be Purchased pursuant to an outstanding Funding Commitment,
until the expiration or earlier termination of such Contract and disposition
of the Equipment covered by such Contract by Purchaser. The respective
obligations of the parties hereto for payment of funds and with regard to the
representations, warranties and indemnification contained herein shall survive
the termination of this Agreement.
13.14 Scope of Relationship.
No Partnership, Etc. This Agreement shall not be deemed to create or evidence
a partnership, joint venture, agency or other relationship between Purchaser
and PWI or any other party except as expressly provided herein.
Limitation of Liability. Except to the extent provided in Section 12, PWI
and Purchaser will be liable to the other only for direct damages arising out
of this agreement or any breach hereof and neither party shall be liable to
the other party for any indirect, special, exemplary, punitive or
consequential damages.
Referral Fee. Purchaser shall pay a Referral fee equal to 0.25% of the
Purchase Price (the "Referral Fee") to Lakebrook Capital LLC, 00 Xxxxx 0xx
Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000, Phone 612/000-0000 for all
Contracts in the first Investment Schedule and set forth in Schedule 1.
The Referral Fee shall not apply to any Investment Schedule (s) that is (are)
completed after the first Funding Date.
13.16 Entire Agreement. This Agreement and the other Documents
contemplated by this Agreement together embody the entire agreement between
the parties relating to the transactions contemplated hereby and supersede
all prior agreements, whether oral or in a Record, and understandings, if
any, relating to the subject matter hereof and thereof.
IN WITNESS WHEREOF, the parties have hereto caused this Agreement to be
executed in duplicated as of the date first above mentioned.
Printware, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President & Chief Financial Officer
Minnwest Capital Corporation
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxx
Title: Executive Vice President
EXHIBIT A
Printware, Inc. EQUIPMENT LEASE AGREEMENT
EXHIBIT B
PWI Submittal
SHALL CONSIST OF THE FOLLOWING ITEMS
PWI's lease pricing, the Equipment sale price or dollar amount PWI expects
to sell the Equipment for, the monthly payment amount and number of payments
collected in advance, the residual amount expected to be use in the lease
pricing , and a complete description of the Equipment, including Serial
Numbers, if available.
A completed credit application, with the lessee's complete legal name and
address, authorizing PWI or its agent (s) the right to secure credit reports
and/or other financial information and reports on the lessee and/or individual
(s) involved in the transaction.
3. All financial, credit information and reports obtained by PWI on the
lessee.
EXHIBIT C
Funding Commitment
[Date]
Xxxxxx X. Xxxxxxxxxx
Executive Vice President
& Chief Financial Officer
Printware, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxx
Xx. Xxxx, XX 00000
Re: Funding Commitment for *** (the "Users") attach the list of Users.
Dear Xx. Xxxxxxxxxx:
Minnwest Capital Corporation, ("Purchaser") is pleased to inform you that the
transaction described in the attached PWI Submittal dated _______ day of
_________ , 200_ (the "Submittal") is approved as specified below. This
Funding Commitment incorporates by this reference the terms of the Submittal,
as it may be amended and superseded hereby, and is subject to the terms and
conditions set forth in the Lease Program Agreement dated as of _________, 2000
(the "Program Agreement"), between Purchaser and Printware, Inc. ("PWI"), which
terms and conditions are also incorporated herein by this reference.
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Program Agreement. If there is any conflict between the terms
contained in this Funding Commitment and the Submittal, this Funding
Commitment will amend and supersede the Submittal to the extent of the
conflict.
The transaction is:
Approved as submitted (see the Submittal for transaction details).
Approved with the following changes and additional requirements which
supersede and amend the Submittal:
[specify terms required by approval]
The Purchase Price for the transaction to which this Funding Commitment
relates (the "Transaction") is $____________. If the Transaction is not
funded by [insert the date that is 30 days after the date of this Funding
Commitment] the Purchase Price is subject to adjustment as provided in
Section 2.2 of the Program Agreement. The benchmark price is the Present
Value of the remaining lease Rental Payments using the Discount Rate.
The Purchaser shall not be obligated to fund the Transaction if the Users
have not accepted the related Equipment for all purposes of the Contract by
[insert the date that is 60 days after the date of this Funding Commitment]
(the "Commitment Expiration Date"). The Purchaser may, in its sole discretion,
extend the Commitment Expatiation Date, and any such extension shall be made
in writing by an authorized signatory in Purchaser's home office.
If you are in agreement with the terms of this Funding Commitment, please so
advise us within five business days from the date of this letter, failing
which this Funding Commitment will expire. Your advice may be by returning the
authenticated original of this Funding Commitment to us, or by telephone (to
000- 000-0000 or facsimile to 612-545-8010), in each case with the signed
original to follow within an additional five Business Date.
We look forward to working with you on the Transaction.
Very truly yours,
Minnwest Capital Corporation
By:
Name:
Title:
Confirmed and Accepted:
Printware, Inc.
By:
Name:
Title:
EXHIBIT D
Investment Schedule
THIS INVESTMENT SCHEDULE is executed pursuant to the Lease Program Agreement
dated as of ___________, 2000 (the "Program Agreement"), between Printware,
Inc. ("PWI") and Minnwest Capital Corporation ("Purchaser"). Capitalized
terms used but not defined herein shall have the meanings ascribed to them
in the Program Agreement. The terms "Equipment", "Contract", and "Payments",
shall have the meanings set forth in Schedule 1 hereto.
1. Sale and Assignment. For good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, PWI hereby sells, assigns,
transfers and conveys to Purchaser, its successors and assigns, the Equipment
and all of its right, title and interest in, to and under the Contracts,
including the Payments thereunder, TO HAVE AND TO HOLD unto Purchaser and its
successors and assigns forever.
2. Representations and Warranties. PWI and Purchaser each hereby confirms
that its representations and warranties contained in Section 3 of the Program
Agreement are true and correct in all material respects, on the date hereof.
3. Transaction Information. Specific information pertaining to the
Contracts and the transaction effected hereby is set forth in Schedule 1
hereto.
4. Other. This Investment Schedule is subject to the following additional
terms and conditions.
IN WITNESS WHEREOF, PWI and Purchaser have duly executed this Investment
Schedule as of _______________, _________.
Printware, Inc. Minnwest Capital Corporation
By: /s/Xxxxxx X. Xxxxxxxxxx By: /s/Xxxxx X. Xxxxxx
__________________________ ___________________________
Executive Vice President Executive Vice President
and Chief Financial Officer
