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EXHIBIT 10.1
AMENDMENT TO LEASE SCHEDULE #9001
This AMENDMENT TO LEASE SCHEDULE #9100 ("Amendment") is made
as of March 26, 1999, by and between PENDA CORPORATION, ("Lessee") and FIRSTAR
LEASING SERVICES CORPORATION, ("Lessor").
WITNESSETH:
WHEREAS, Lessee and Lessor have entered into that certain
Master Lease Agreement dated December 26, 1995 (the "Lease") and that Lease
Schedule #9100, dated December 26. 1995 (the "Schedule") attached thereto as
Exhibit A, for the leasing of certain equipment described more fully therein
(the "Equipment'); and
WHEREAS, Lessee has requested that Lessor amend the Schedule
in order to extend the remaining lease term and to amend the Purchase/Renewal
Option under the Schedule; and
NOW, THEREFORE, in consideration of the mutual undertakings
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties agree as
follows:
1. Amendments to the Schedule:
a. Section C, Term of the Schedule is hereby amended and
restated as follows:
"TERM: The term of this Schedule commences on
December 26, 1995, ("Base Lease Commencement Date") and expires on December 26,
2003 ("Initial Term"). Unless sooner terminated as set forth in the MLA and at
Lessor's option, this Schedule shall be automatically renewed in its entirety on
a monthly basis ("Renewal Term") unless Lessee gives Lessor written notice of
nonrenewal sixty (60) days prior to the expiration of the Initial Term of this
Schedule (and of any Renewal Term).
b. Section D, Base Rent of the Schedule is hereby
amended and restated as follows:
"BASE RENT: As rent for the Equipment described
in this Schedule, Lessee shall pay Lessor the sum of $28,776.02 ("Base Rent")
per month in arrears from the Base Lease Commencement Date through February 26,
1999, followed thereafter by a monthly payment of $18,140.90 in arrears
beginning March 26, 1999 and continuing on the same day of each and every month
through December 26, 2003 (plus applicable sales/use tax). All Base Rent
payments shall be due on the same day of each and every month during the Initial
Term of this Schedule (and any Renewal Term)."
c. The Stipulated Loss Value of the Schedule is hereby
amended, restated and attached hereto as Exhibit X.
x. Xxxxx #1A, Purchase/Renewal Option (Fixed) attached
to the Schedule is amended, restated and attached hereto as Exhibit C.
2. Status of Lease . Lessee hereby certifies that (i)
no event has occurred and is continuing that would constitute an Event of
Default under the Lease, and (ii) the representations and warranties contained
in the Lease and the Schedule are true, correct and complete in all material
respects as if made on the date hereof.
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3. Effect of Amendment. On and after the date hereof, each
reference in the Schedule to "this Schedule", "hereunder", "hereof", "herein" or
words of like import referring to the Schedule shall mean and be a reference to
the Schedule as amended by this Amendment.
4. Lease and Original Schedule. Except as specifically amended
by this Amendment and any and all other amendments, the original Schedule and
the Lease shall remain in full force and effect and are hereby ratified and
confirmed.
5. Applicable Law. This Amendment shall be construed and
interpreted in accordance with the laws of the State of Minnesota.
6. Effective Date. The terms of the original Schedule and all
amendments thereto shall be effective with respect to the Equipment, as of the
Lease Commencement Date.
IN WITNESS WHEREOF, the parties have executed this Amendment
by their duly authorized officers, as of the date set forth above.
LESSEE: PENDA CORPORATION
By: /s/Xxxxxx Xxxxxxxx
Title: Vice President
LESSOR: FIRSTAR LEASING SERVICES CORPORATION
By: /s/Xxxxxx X. Xxxxxxx
Title: VP/Ops. Mgr.
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EXHIBIT C
RIDER #1A
TO LEASE SCHEDULE #9001
LEASE RENEWAL OR PURCHASE OPTION (FIXED)
(1) PURCHASE OPTION:
On the last date of the Initial Term of the Schedule, Lessee
may purchase for cash all (and only all) of the Equipment under the
Schedule for a price equal to 30% of the Original Equipment Cost upon
thirty (30) day prior written notice to Lessor.
(2) RESALE OPTION:
If Lessee elects not to purchase the Equipment pursuant to
subsection (1) above, Lessee has the option to sell the Equipment on
terms approved by Lessor in writing, unless Lessor, at Lessor's sole
discretion, elects to sell the Equipment. In no event shall Lessee sell
the Equipment for less than 30 percent of Original Equipment Cost
(exclusive of any sales tax and expenses of sale) without Lessor's
prior written consent, and in any event, Lessee shall only sell the
Equipment upon ten (10) business days prior written notice to Lessor.
The Net Sale Proceeds (as defined below) shall be promptly paid to
Lessor; provided that (1) if the Net Sale Proceeds exceed 30% of
Original Equipment Cost, such excess shall be paid to Lessee (after
satisfaction of Lessee's obligations relating to the Schedule); and (2)
if the Net Sale Proceeds are less than 30% of Original Equipment Cost,
Lessee shall immediately pay to Lessor in good funds the difference
thereof up to a maximum of 11% of Original Equipment Cost.
(3) Lessee's ability to renew the Schedule and exercise the First
Purchase Option described above are conditioned upon no event of
default having occurred under the MLA prior to Lessee's payment of the
amount necessary to renew the Schedule or to purchase the Equipment
described therein.
ACCEPTED BY INITIALING:
Lessor: /s/KJH Lessee: /s/LEW
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EQUIPMENT CONDITION ADDENDUM
FOR ROTARY THERMOFORMER MACHINES
All Rotary Thermoformer Machines, ("Equipment") included under Lease
Schedule No.'s 48500-02 and 48500-03 to a Master Lease Agreement dated December
26, 1995 (herein "Lease") shall meet the following minimum condition
requirements in the event the Equipment is returned pursuant to Section 11 of
the above referenced Lease.
1. The Equipment shall be in such mechanical condition that upon
redelivery the Equipment can immediately be reassembled and placed into
service by an operator without the need for any modifications,
mechanical repairs, replacement parts or replacement components, in the
opinion of the Lessor, except to the extent this would constitute an
infringement of any of Lessee's patents or would result in diverging
any of Lessee's trade secrets or confidential and proprietary
processing know-how. The Equipment will be completed as originally
invoiced to Lessor. Any modifications by Lessee will improve the
capabilities of the Equipment with regard to productivity and will not
adversely affect the Equipment's commercial value, in the opinion of
the Lessor. All approved additions, modifications or changes will
become the property of Lessor, except to the extent this would
constitute an infringement of any of Lessee's patents or would result
in diverging any of Lessee's trade secrets or confidential and
proprietary processing know-how.
2. The Equipment, including all attachments and ancillary systems, will be
in compliance with all applicable federal, state, and local statutes,
laws, ordinances, or rules and regulations at the location where it was
operating, in the opinion of Lessor.
3. At any time during the term of the Lease, Lessee will make the
Equipment available for mechanical inspection by the OEM, or other
qualified maintenance providers, at Lessor's expense, provided such
inspectors sign a Confidentiality Agreement, if so requested by Lessee.
Lessee will remove the Equipment from operation for an adequate period
of time, in the opinion of Lessor, for the purposes of completing each
of these inspections. Inspections will be scheduled so as to not
unreasonably interfere with the operations of Lessee's business. Any
items not found to be in compliance with the OEM's maintenance
standards will be brought into compliance by Lessee within fifteen (15)
days of the inspection, to the satisfaction of Lessor.
4. If the Equipment is taken out of operation for more than ninety (90)
days, measures prescribed by the OEM will be taken to place the
Equipment in long term storage. During the storage period Lessee will
follow the recommendation of the OEM relative to maintenance of the
Equipment.
5. At least fifteen (15) days, but not more than thirty (30) days prior to
redelivery of the Equipment, Lessor at Lessee's expense will have a
qualified service technician, acceptable to Lessor, submit a written
report of the Equipment's mechanical condition based upon a
comprehensive inspection of the Equipment, provided, however, that such
technician signs a Confidentiality Agreement, if so requested by
Lessee. Lessee will remove the Equipment from operation for an adequate
period of time, in the opinion of Lessor, for the purpose of completing
the inspection. This report shall state in detail the mechanical
condition of the Equipment and each of its components. Any items not
found to be in compliance with the OEM's maintenance standards will be
brought into compliance by Lessee prior to return of the Equipment.
Such OEM standards are typically found in Care and Maintenance Manuals,
Operating Manuals, Service Bulletins, and any other OEM publications
relative to care and maintenance of the Equipment. Revisions to these
manuals or other information subsequently published by the OEM relative
to the operation, care and maintenance of the Equipment will become a
standard to be complied with at redelivery.
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6. Lessee, prior to redelivery and upon request of the Lessor and at
Lessee's expense, will disassemble, prepare for shipment and load the
Equipment, under the supervision of Lessor, or a party designated by
Lessor (such as a representative from the OEM), so that it may be
transported in a manner consistent with the OEM's guidelines, industry
standards, or the Lessor's guidelines.
7. The Equipment will be clean and free of all foreign material, to the
satisfaction of Lessor, prior to shipment.
8. Upon redelivery of the Equipment, Lessee will return to Lessor all
operator's manuals, maintenance manuals, drawings and any other
publications issued with the Equipment by the OEM. These will include
revisions to these documents published by the OEM during the term of
the Lease.
9. During the term of the Lease, a record of maintenance performed on the
Equipment will be maintained by Lessee. Upon request during the Lease
term, Lessee will allow Lessor to examine the records. Upon redelivery
of the Equipment, Lessee will provide a legible copy of the maintenance
records to Lessor.
10. If Lessee does not elect to purchase the Equipment or renew the lease
at the lease termination date, Lessee will store and maintain the
Equipment, at Lessee's expense, for up to twelve (12) months after the
termination date at a location and under conditions suitable to Lessor.
Subsequent to any period of storage up to and including twelve (12)
months, Lessee will, at Lessor's request, ship the Equipment, at
Lessee's expense, to a location designated by Lessor.
11. Lessee will advise Lessor in writing of their decision to return the
equipment a minimum of 180 days prior to Lease termination. Subsequent
to that notification Lessee will make the fully operational equipment
available for examination by prospective buyers secured by Lessor.
Lessee covenants and agrees that the Equipment will meet the above stated
condition standards upon return of the Equipment pursuant to Section 11 of the
Lease. If the Equipment does not meet such stated condition standards at that
time, as determined by Lessor, Lessee agrees to pay to Lessor in cash on demand,
the estimated fair market value costs of bringing the Equipment up to the agreed
upon condition standards.
Date: Xxxxx 00, 0000 XXXXXX: PENDA CORPORATION
Attest/
Witness By: /s/Xxxxxx Xxxxxxxx
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Title: Vice President
LESSOR: FIRSTAR LEASING SERVICES CORPORATION
By: /s/Xxxxxx X. Xxxxxxx
Title: VP/Ops. Mgr.
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