MASTER LEASE
This Master Lease Agreement ("Master Lease") is dated JULY 24,
1997, between AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO
("Lessor"), and CIRCUIT SYSTEMS OF TENNESSEE, L.P. ("Lessee").
Lessee wants from time to time to lease from Lessor personal
property to be described in one or more schedules ("Schedule") of
leased equipment. Lessor is willing to lease such personal
property to Lessee at the rent, for the term and upon the
conditions stated. Any Schedules executed by Lessor and Lessee
which are identified as being a part of this Master Lease, shall
be deemed to incorporate by reference all the terms of this Master
Lease except as provided in the Schedule. In the event of a
conflict between this Master Lease and any Schedule, the
provisions of such Schedule shall control.
1. Equipment Leased and Term. This Master Lease shall cover such
personal property as is described in any Schedule (the
"Equipment") executed by the parties. Lessor leases to Lessee and
Lessee hires and takes from Lessor, subject to the conditions of
this Master Lease, the Equipment described in any Schedule. The
term for any item of Equipment shall be for the period as set
forth in the Schedule ("Initial Lease Term").
2. Rent. The rent for each item of Equipment shall be payable as,
and in the amount, shown on the Schedule.
3. Purchase and Acceptance. Lessee requests Lessor to acquire all
scheduled Equipment pursuant to an assignment of Lessee's
purchase order(s) for the Equipment. Delivery of each item of
Equipment shall be deemed complete upon the acceptance date
("Acceptance Date") stated in the Schedule. Lessor shall not be
liable for loss or damage or for the delay or failure of any
supplier of the Equipment ("Seller") to deliver any item of
Equipment. THE LESSEE REPRESENTS THAT LESSEE HAS SELECTED BOTH
THE EQUIPMENT LISTED IN ANY SCHEDULE AND THE SELLER BEFORE HAVING
REQUESTED LESSOR TO ACQUIRE THE EQUIPMENT FOR LEASING TO LESSEE.
4. Non-Cancelable Lease. THIS MASTER LEASE IS NON-CANCELABLE. When
Lessee signs and delivers a Certificate of Acceptance for the
Equipment, its obligations to pay all rent and other amounts for
the Initial Lease Term and to perform as required under this
Master Lease are unconditional, irrevocable and independent.
These obligations are not subject to cancellation, termination,
modification, repudiation, excuse or substitution by Lessee.
Lessee is not entitled to any abatement, reduction, offset,
defense or counterclaim with respect to these obligations for any
reason whatsoever, whether arising out of default or other claims
against Lessor, the Seller or the manufacturer of the Equipment,
defects in or damage to the Equipment, its loss or destruction.
5. Disclaimer of Warranties by Lessor; Rights of Lessee. LESSOR
MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING THE CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND,
AS TO LESSOR, LESSEE LEASES THE EQUIPMENT "AS-IS". UNDER NO
CIRCUMSTANCES SHALL LESSOR BE RESPONSIBLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS MASTER LEASE AND/OR
THE EQUIPMENT. LESSEE IS ENTITLED TO THE PROMISES AND WARRANTIES,
INCLUDING THOSE OF ANY THIRD PARTY, PROVIDED TO LESSOR BY THE
SELLER IN CONNECTION WITH OR AS PART OF THE CONTRACT BY WHICH
LESSOR ACQUIRED THE EQUIPMENT. LESSEE MAY COMMUNICATE WITH THE
SELLER AND RECEIVE AN ACCURATE AND COMPLETE STATEMENT OF THOSE
RIGHTS, PROMISES AND WARRANTIES, INCLUDING ANY DISCLAIMERS AND
LIMITATIONS OF THEM OR OF REMEDIES.
6. Claims Against Seller; Seller Not An Agent of Lessor. If the
Equipment is not properly installed, does not operate as
represented or warranted by the Seller or is unsatisfactory for
any reason, Lessee shall make any claim for same solely against
the Seller and shall nevertheless pay Lessor all rent payable
under this Master Lease. Lessor agrees to assign to Lessee, solely
for the purpose of making and prosecuting any such claim, any
rights it may have against the Seller for breach of warranty or
representation regarding the Equipment. Notwithstanding any fees
that must be paid to Seller or any agent of Seller, Lessee
understands and agrees that neither the Seller nor any agent or
employee of the Seller is an agent or employee of the Lessor and
that neither the Seller nor its agent or employee is authorized to
waive or alter any term or condition of this Master Lease.
7. Title; Location of the Equipment; Equipment is Personal
Property; Termination. Title to the Equipment is in the Lessor and
under no circumstances shall pass to Lessee. The Equipment shall
be kept at Lessee's address indicated in the applicable Schedule
and shall not be removed without the prior written consent of
Lessor. Lessee agrees that the Equipment is, and will at all
times remain, personal property. At each scheduled termination
date, or upon Lessee's default, Lessee, at its own expense, shall
assemble and deliver the Equipment to Lessor at the location
designated by Lessor, in good order and repair, ordinary wear and
tear excepted. Lessee shall give Lessor 90 days written notice
prior to each scheduled termination date, that it is returning
the Equipment.
8. No Assignment by Lessee; Assignment by Lessor. THIS MASTER
LEASE SHALL NOT BE ASSIGNED BY LESSEE, NOR SHALL ANY OF THE
EQUIPMENT BE SUBLEASED BY LESSEE WITHOUT THE PRIOR WRITTEN CONSENT
OF LESSOR. Lessor may sell or assign all or part of its right,
title and interest in this Master Lease, any item of Equipment
and/or any Schedule and in any monies to become due to the
Lessor. The assignee shall not be liable for or be required to
perform any of Lessor's obligations to Lessee. All assigned
rental payments shall be paid directly to assignee, upon written
notice to Lessee of such assignment. Lessee's performance of all
its obligations shall not be subject to any defense, counterclaim
or setoff which the Lessee may have against Lessor. Lessee agrees
that it will not assert any such defenses, setoffs, counterclaims
or claims against the assignee.
9. Casualty and Liability Insurance; Risk of Loss; Damage or
Destruction. Lessee shall keep all Equipment insured against loss
by fire, theft and all other hazards (comprehensive coverage) in
such amounts as Lessor requires but not less than the casualty
value ("Casualty Value") for such item indicated in the Casualty
Value Table attached to the applicable Schedule. Lessee appoints
Lessor Lessee's attorney in fact to endorse any loss payment or
returned premium check and to make any claim under such insurance.
Lessee shall also insure the Lessor and Lessee with respect to
liability for personal injuries in amounts of at least $1,000,000
per individual, $3,000,000 per occurrence; and $1,000,000 per
occurrence for damage to or loss of use of property resulting from
the ownership, use and operation of the Equipment and against
risks customarily insured against by the Lessee for equipment
owned by it. All policies shall be endorsed with Lessor as a loss
payee and additional insured and shall provide that the interest
of Lessor shall not be invalidated by any act of Lessee. Evidence
of insurance must be delivered to Lessor within 30 days after any
Acceptance Date. In the event of loss, destruction or theft of,
or damage to, any of the Equipment, Lessee will immediately notify
Lessor.
If Lessee defaults in obtaining any insurance, Lessor may but is
not required to, place such insurance. Any premiums paid by
Lessor shall be additional rent payable on demand with interest at
the highest legal rate from the date of payment. At Lessor's sole
option, such amounts together with interest may be added to the
lease balance to be paid by Lessee as additional monthly rent.
Lessee assumes and shall bear all risks of loss of, damage to or
destruction of each item of Equipment, whether partial or
complete. Except as provided in this Section 9, no such event
shall relieve the Lessee of its obligation to pay the full rental
payable for such item.
If any item of Equipment is destroyed, damaged beyond economical
repair, lost or stolen, or taken by governmental action for a
stated period extending beyond the Initial Lease Term for such
item (an "Event of Loss"), Lessee must promptly notify Lessor and
any assignee and pay to Lessor or the assignee, as the case may
be, on the next rent payment date following the Event of Loss the
Casualty Value of the item of Equipment. Upon such payment and
provided no Event of Default as defined in Section 12 has
occurred, Lessee's obligation to pay rent for such item of
Equipment will cease and Lessee will be entitled to receive any
insurance proceeds or other recovery received by the Lessor or
assignee in connection with the Event of Loss.
10. Repairs; Use; Alterations; Attachments. Lessee, at its own
expense, shall keep the Equipment maintained in good repair,
condition, working order, and in accordance with the
manufacturer's recommended maintenance procedures and
specifications; shall use the Equipment lawfully; and shall not
alter the Equipment without the Lessor's prior written consent.
Lessee shall take no action which would void the manufacturer's
warranty on the Equipment. All items which become attached to or
a part of the Equipment become the property of Lessor.
11. Liens and Taxes. Lessee at its expense shall keep the
Equipment free and clear of all levies and liens. Lessee shall
reimburse the Lessor (or pay directly if, but only if instructed
by Lessor) for all charges and taxes (local, state and federal)
imposed or levied upon this Master Lease, any Schedules, rentals,
operation, leasing, sale, ownership, possession or use of the
Equipment excluding all taxes based upon income or gross receipts
of Lessor.
12. Default. Any of the following shall constitute an event of
default ("Event of Default") by Lessee: (a) Lessee fails to pay
when due any scheduled rent or other amount required by this
Master Lease; (b) Lessee breaches any covenant of this Master
Lease or fails to promptly perform any of its terms or
conditions, including but not limited to return of the leased
Equipment at the expiration of any scheduled lease term; (c)
Lessee makes an assignment for the benefit of creditors; (d) a
petition is filed by or against Lessee in bankruptcy or for the
appointment of a receiver; (e) dissolution or suspension of
Lessee's usual business; (f) Lessee makes a bulk transfer or bulk
sale of any assets, (g) any representation, warranty, or signature
made by Lessee in this Master Lease or related document is
incorrect, fraudulent or breached; or (h) Lessee defaults under
the terms of any agreement or instrument relating to any lease or
debt for borrowed money such that the lessor accelerates the rent
or the creditor declares the debt due before its maturity. Lessee
agrees to give Lessor prompt notice upon the occurrence of an
Event of Default.
13. Lessor's Remedies upon Default by Lessee. Upon the occurrence
of an Event of Default, Lessor, without further notice, and in
addition to any remedy provided by law, may (i) recover from
Lessee the Casualty Value of the Equipment together with any
unpaid rent and (ii) regardless of whether such amounts are paid,
take possession of any items of Equipment and at Lessor's option
sell or lease at public auction or by private sale or otherwise
dispose of such items of Equipment.
If Lessee has paid the Casualty Value, all unpaid rent and all
other amounts owing under this Master Lease and any items of
Equipment have been taken from Lessee, the proceeds of any
reletting or sale (less all costs and expenses including
reasonable attorneys' fees) shall be paid to reimburse the Lessee
for the Casualty Value up to the amount previously paid. Any
surplus remaining after such payment will be retained by the
Lessor.
Regardless of any sale or lease of the Equipment or any payment of
the Casualty Value, Lessee will remain liable to Lessor for all
damages as provided by law and for all costs and expenses caused
by Lessee's breach, including court costs and reasonable
attorneys' fees (whether attributable to Lessor's in-house counsel
or outside counsel). These costs and expenses shall include,
without limitation, any costs or expenses incurred by Lessor in
any bankruptcy, reorganization, insolvency or other similar
proceeding.
14. Renewal. If the Equipment is not delivered to Lessor at any
scheduled termination date in accordance with paragraph 7, then
the Initial Lease Term shall renew on a month to month basis upon
the same terms and conditions, subject to the right of Lessor or
Lessee to terminate the renewed term on 30 days written notice, in
which event, the Equipment shall immediately be returned to
Lessor.
15. Late Charges. Without limiting Lessor's remedies above, if
Lessee fails to pay any amount of rental or other payment for a
period of ten days after its due date, Lessee agrees to pay Lessor
a late charge of 5% of each such payment or installment with a
minimum late charge of $25.00. This late charge shall be
reassessed in each subsequent month that the rental or other
payment remains unpaid.
16. Financing Statements. The Lessor is authorized to file a
financing statement in accordance with the Uniform Commercial
Code signed by Lessee or by Lessor, as Lessee's attorney in fact.
17. Jurisdiction; Venue; Severability. THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS. LESSEE CONSENTS TO
THE JURISDICTION OF THE COURTS OF ILLINOIS AND TO VENUE IN THE
COURTS OF THE COUNTY OF XXXX. No provision which may be construed
as unenforceable shall in any way invalidate any other provision,
all of which shall remain in full force and effect.
18. Warranties by Lessee. Lessee warrants and represents that: (a)
the Equipment is being leased for business purposes; (b) all
signatures are genuine; and (c) the person signing the Master
Lease is authorized to do so. If Lessee is other than a natural
person, it further represents that (a) it is duly organized,
existing and in good standing pursuant to the laws under which it
is organized; and (b) the execution and delivery of this Master
Lease and the performance of the obligations it imposes are within
its powers and have been duly authorized by all necessary action
of its governing body and do not contravene the terms of its
articles of incorporation or organization, its bylaws, or any
partnership, operating or other agreement governing its affairs:
19. Indemnity by Lessee. Lessee agrees to indemnify and hold
Lessor or any assignee harmless from any and all claims, actions,
proceedings, expenses, damages and liabilities, including
attorneys' fees, arising out of or in any manner pertaining to the
Equipment or this Master Lease including, without limitation, the
ownership, selection, possession, purchase, delivery,
installation, leasing, operation, use, control, maintenance and
return of the Equipment and the recovery of claims under insurance
policies.
Lessee acknowledges that the Equipment is owned by Lessor
("Owner"). It is the intent of Owner/Lessor and Lessee that this
Lease constitute a true lease for Federal income tax purposes so
that, for the purpose of determining its liability for Federal
income taxes, Owner shall be entitled to the tax benefits as are
provided by the Internal Revenue Code of 1986, as amended, (the
"Code") to an owner of personal property.
In addition notwithstanding any other provision of this Master
Lease, if as to any Equipment, the modified accelerated cost
recovery system or depreciation deductions allowed under the Code
shall be lost, disallowed, eliminated, reduced, recaptured or
otherwise unavailable to Lessor for any reason, then Lessee shall
pay to Lessor as additional rent within 30 days after such a loss
an amount equal to the sum of (i) the additional federal, state,
local and foreign income or any other taxes payable as a result
of such loss, disallowance, elimination, reduction, recapture or
unavailability of accelerated cost recovery or depreciation
deductions plus (ii) the amount of any interest, penalties or
additions to tax payable by the Lessor as a result of such
additional tax.
The indemnities given and liabilities assumed by the Lessee
pursuant to this Section 19 shall continue in full force and
effect notwithstanding the expiration or other termination of this
Master Lease.
20. Notices. Notice from one party to another relating to this
Master Lease shall be deemed effective if made in writing
(including telecommunications) and delivered to the recipient's
address, telex number or telecopier number set forth under its
name below.
21. Labels Affixed to Equipment. Lessor shall have the right, but
not the obligation, to attach or require Lessee to attach
ownership identification labels to the Equipment. Lessee agrees
to not remove any such labels.
22. Lessor's Expense. Lessee shall pay Lessor all costs and
expenses, including reasonable attorneys' fees, incurred by
Lessor in enforcing any terms of, or in protecting Lessor's
interests under, this Master Lease.
23. Performance by Lessor. If the Lessee fails to promptly perform
any of its obligations under this Master Lease, Lessor may, at
its option, perform such act or make such payment which the Lessor
deems necessary. All sums paid or incurred by Lessor including
reasonable attorneys' fees shall be immediately due and payable by
Lessee, without demand, and shall bear interest at the lesser of
one and one-half percent (1 -1/2%) per month or the highest rate
permissible by law.
24. Entire Agreement. This Master Lease and subsequent Schedules
constitute the entire agreement of the parties. Neither party
relies on any other statements, understandings, representations or
assurances, the same, if any having been merged into this
agreement. This agreement cannot be modified except by a writing
signed by each party. This agreement inures to the benefit of the
heirs, executors, administrators, successors and assigns of the
parties.
25. Waiver. No delay on the part of Lessor in the exercise of any
right or remedy shall operate as a waiver. No single or partial
exercise by Lessor of any right or remedy shall preclude any other
future exercise of it or the exercise of any other right or
remedy. No waiver by Lessor of any default shall be effective
unless in writing and signed by Lessor, nor shall a waiver on one
occasion be construed as a bar to or waiver of that right on any
future occasion.
26. Financial Reports. Upon request by Lessor, Lessee will
promptly furnish to Lessor all financial reports deemed necessary
by Lessor.
27. Waiver of Jury Trial. Lessor and Lessee, after consulting or
having had the opportunity to consult with counsel, knowingly,
voluntarily and intentionally waive any right either of them may
have to a trial by jury in any litigation based upon or arising
out of this Master Lease, or any related agreement, or any course
of conduct, dealing or statements (whether oral or written).
These provisions shall not be deemed to have been modified in any
respect or relinquished by either Lessor or Lessee except by a
written instrument executed by both of them.
THIS MASTER LEASE AGREEMENT THE UNDERSIGNED (AND IF MORE THAN
SHALL NOT BE BINDING ON ONE, JOINTLY AND SEVERALLY) AGREE
LESSOR UNTIL IT HAS BEEN TO ALL TERMS AND CONDITIONS ABOVE
ACEPTED AND EXECUTED BY AN WHICH ARE PART OF THIS MASTER LEASE
OFFICER OF LESSOR. AGREEMENT.
Accepted by Lessor:AMERICAN NATIONAL Lessee:CIRCUIT SYSTEMS OF TENNESSEE,L.P.
BANK AND TRUST COMPANY OF CHICAGO CIRCUIT SYSTEMS OF
TENNESSEE,INC., G.P.
By: /s/ Xxxxx X. Xxxxx By:/s/ Xxxxx X. Xxxx
Title: Vice-President Title: Vice-President
Date: July 24, 1997 Date: July 24, 1997
Address For Notices: Address For Notices:
1) 00 Xxxxx XxXxxxx Xxxxxx 0000 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000 Elk Xxxxx Xxxxxxx, XX 00000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
2) 000 Xxxxxxxx Xxxxxx
Xxxxx #000
Xxxxxxx, XX 00000
Fax No.: (000) 000-0000
