EQUIPMENT PURCHASE AGREEMENT P.O #
SCREEN
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P.O
#
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DAINIPPON
SCREEN GRAPHICS (USA), LLC
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Customer
Name “”Purchaser”) Pool
Press
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0000
Xxxxxxxx Xxxxx
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Billing
Address: 0000 Xxxxxxxxxx
Xxx
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Xxxxxxx
Xxxxxxx, XX 00000
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Xxxxxxxxxx,
XX 00000
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(000)
000-0000
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Installation
Address;
same
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Xxxxx
Xxxxxxxx
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Sales
Representative ¨ PSD
¨
Sales
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State
of Organization/Incorporation
IL
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Organization
ID No.
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FEIN
or SSN
No.:
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Purchaser
agrees to purchase and SCREEN (USA) agrees to sell and deliver Screen products
described below in accordance with prices, terms and conditions set forth
herein. This agreement shall become effective and shall remain in full force
and
effect upon acceptance by Screen (USA).
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Quantity
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Code#
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Products
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Price
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1
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PTR
8300E Package with Installation and 90 day warranty
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$74,500
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1
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True
Flow Standard Workflow Package
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$26,550
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Includes:
TrueFlow Standard, Dual Coro Server, Installation, 3 Days Onsite
Training,
12 Months Phone and Webex Support.
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Freight
to be billed separately.
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THIS
AGREEMENT IS SUBJECT TO SCREEN;S STANDARD TERMS AND CONDISITIONS OF SALE AS
ATTACHED TO OR ACCOMPANYING THIS AGREEMENT, AND PURCHASER HEREBY CONFIRMS ITS
RECEIPT OF, AND AGREEMENT TO BE BOUND BY, SUCH TERMS AND
CONDITIONS.
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Estimated
delivery days after acceptance
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1.
Contract Price
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$101,050
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Purchaser
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2.
State Sales Tax (see reverse)
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$-
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By
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3.
Local Sales Tax (see reverse)
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$-
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Title
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4.
Total cash sales price (1+2+3)
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$101,050.00
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Date
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5.
Cash down payment
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$-
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Seller/Secured
Party: DS Graphics (USA), LLC.
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6.
Prior to shipping
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$-
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By
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7.
Balance (line 4 less 5+6) due upon
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Title
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Xxxx
Xxx-President
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completion
of installation
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$101,050.00
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Date
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TCF
Equipment
Finance
Master
Lease
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The
“Master Lease”: Master Lease Number 0505846L Dated July 10,
2007
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“Lessee”
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Pools
Press, Inc., 0000 Xxxxxxxxxx Xxx, Xxxxxxxxxx, XX 00000
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“Lessor”
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TCF
Equipment Finance, Inc. 00000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
XX
00000
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Master
Lease Terms and Conditions
1.
LEASE. Xxxxxx xxxxx leases to Lessee, and Lessee hereby leases from Lessor,
the
personal property and/or services described in an Equipment Schedule or
Equipment Schedules (each, a “Schedule”) to this Master Lease signed by Lessor
and Lessee from time to time upon the terms and conditions set forth herein
and
in the Schedule 9such property and services, together with all replacements,
repairs, and additions incorporated therein or affixed therein, being referred
to here as the ‘Equipment”). Lessee authorizes Lessor to add to any Schedule, or
make necessary corrections to any serial numbers or other identification of
the
Equipment when known. Each Schedule shall be considered a separate lease
pursuant to the terms of this Master Lease. The term ‘this lease” as used herein
shall mean a Schedule incorporating therein the terms of any Schedule and the
terms of this Master Lease, the terms of the Schedule shall control.
Notwithstanding any provision herein or in any Schedule to the contrary, Lessor
shall have no obligation to purchase, fund or lease to Lessee any Equipment
of
(i) all of Lessor’s requirements shall not have been satisfied on or before the
date that Lessor’s credit approval shall expire with respect to the lease of
such Equipment, and (ii) any material adverse change in Lessee’s condition or
business shall have occurred as of the date of such proposed purchase, funding
or lease fro that considered by Lessor in connection with the credit approval
for such leases. In the even that either of the foregoing shall occur, Lessor
may, in its sole discretion, cancel the lease of the Equipment covered by the
applicable Schedule, and Lessee shall purchase from Lessor any items of
Equipment them subject to the lease within five days after Lessor’s request to
do so for a price equal to Lessor’s cost of such items, plus any other amounts
advanced by Lessor under such Schedule, plus accrued but unpaid interim rent
thereon, as provided for in paragraph 3 below. Lessee shall also pay any
applicable sales and use tax on such sale.
2.
TERM. The term of this lease with respect to each item of Equipment shall begin
on the date it is accepted by Lessee and shall continue for the number of
consecutive months from the Commencement Date shown in the related Schedule
(
the “Initial Term”) unless earlier terminated as provided herein or unless
extended or renewed as provided for in the related Schedule. If the final item
of Equipment described in the applicable Schedule is delivered and accepted
on
the first day through the 15th
day of
the month, the Commencement Date is the 15th
day of
the month; and if the final item of
Equipment
is delivered and accepted on the 16th
day
through the end of the month, the Commencement Date is the first day of the
following month. In the event Lessee executes the Schedule prior to delivery
and
acceptance of all items of Equipment described therein, Lessee agrees that
the
Commencement Date may be left blank and hereby authorizes Lessor to insert
the
Commencement Date based upon the date appearing on the delivery and acceptance
certificated signed by Lessee with respect to the last item of Equipment to
be
delivered.
3.
RENT. Lessee shall pay basic rent for the Initial Term of this lease, and any
renewal term, in periodic installments each in the amount shown in the related
Schedule as the Rent Payment. Installments shall be payable as set forth in
the
related Schedule. Lessee shall pay advance installments and any security
deposit, each as shown in the related Schedule, on the date Lessee executes
such
Schedule. If the final cost of the Equipment (all amounts Lessor pays in
connection with the purchase, delivery and installation of the Equipment,
including any trade-up and buy out amounts, before application of any subsidies
or like amounts) plus other amounts financed under the Schedule is more or
less
than the Total Cost shown in the Schedule (which is based on an estimate),
the
amount of each Rent Payment and the mandatory or optional fixed purchase price,
if any, will be adjusted up or down to provide Lessor the same yield it would
have obtained if such final cost had been the same as such Total Cost. The
Schedule will be amended to reflect the final Total Cost and adjusted Rent
Payment and, if applicable, purchase price. Lessee agrees to execute an
amendment reflecting such adjustments; provided that Lessor’s written notice to
Lessee of adjustments of 10% or less shall be effective as an amendment, without
Lessee’s signature. The Rent Payment for this lease has been indexed to the
yield for U.S. Treasury securities with a similar term to the Initial Term
of
this lease. If the yield of such securities as of the date that the final item
of Equipment under this lease is accepted is more than the yield as of the
date
of the applicable Schedule. Lessor may increase the Rent Payment accordingly,
and the Lessee hereby agrees to sign an amendment reflecting such increase
by no
later than the Commencement Date of this lease. In addition to basic rent
payable from the Commencement Date, Lessee agrees to pay interim rent with
respect to each separate item of Equipment covered by a particular Schedule
from
the date it is delivered and accepted to the Commencement Date, it is a daily
rate equal to (i) Lessor’s cost of such item specified in such Schedule or in
applicable invoice, multiplied by (ii) the Interim Daily Factor specified in
such Schedule. Interim rent accruing each calendar month shall be payable by
the
10th
day of the following month and in any event on the Commencement
Date.
4.
PAYMENTS, LATE CHARGES AND SECURITY DEPOSIT. Time is of the essence. If any
installment of interim rent or basic or any other amount payable by Lessee
hereunder is not paid within ten (10) days of the date when due, Lessor may
impose a late charge of up to 5% of the amount of the installment, but in no
event more than permitted by applicable law, Lessee may from time to time make
telephone requests for, and Lessee hereby authorizes, Lessor or its agents
to
make and draw checks or drafts on a checking account to be designated by Lessee,
payable to Lessor or order, to pay rent and other amounts due hereunder, plus
Lessor’s standard per item fee for making and drawing such
check
or
draft not to exceed the maximum amount permitted by law. Lessor may rely on
any
such request made by a person it believes has authority to make such request
on
behalf of the Lessee. Payments received shall be applied by Lessor in such
order
of applications as Lessor shall determine in its sole discretion. Lessee has
deposited or will deposit with Lessor the sum shown as “Security Deposit”, if
any, on each Schedule as a security deposit and not as advance rent. Upon the
occurrence of any Event of Default, Lessor may, at its option, apply any
security deposit to any amounts owed under this lease, Lessor shall return
any
remaining balance of the security deposit(s), if any, without interest, to
Lessee if and only if Lessee has fulfilled all of its obligations under this
lease.
5.
TAXES, FEES AND LESSOR’S EXPENSES. In addition to the rent, Lessee agrees to
promptly pay when due, or reimburse Lessor upon receipt of Lessor’s invoice, all
fees, assessments, charges and sales, use, property, excise and other taxes
paid, payable or required to be collected by Lessor, however designated, which
are levied or assessed by any governmental authority on the rent, this lease
or
the Equipment or its purchase, ownership, use, lease, sale or value, together
with any penalties or interest in connection therewith. Lessor shall file all
personal property tax returns and pay all such taxes when due and Lessee shall
reimburse Lessor thereof and file all returns required to be filed by Lessee.
Upon request by Lessor, Lessee shall prepare and file all tax returns relating
to taxes for which Lessee is responsible hereunder which Lessee is permitted
to
file under the laws of the applicable taxing jurisdiction. Lessee shall promptly
pay all costs, charges, expenses and obligations of every kind and nature
incurred by or on behalf of Lessor regarding the importation, shipment,
delivery, possession, use, lease, tax treatment, return, repossession, storage
and transfer if any item of Equipment. In addition, Lessee agrees to pay Lessor
a fee, in an amount determined by Lessor, not to exceed the maximum amount
from
time to time permitted by applicable law, for any check or automatic payment
withdrawal request that is returned to Lessor because of insufficient funds
available in Lessee’s account or a stop payment. If Lessor, in its discretion,
pays any tax, fee, charge or other amount described in this paragraph, Lessee
shall reimburse Lessor therefore on demand, together with Lessor’s
administrative and other costs of paying and invoicing such amounts and if
Lessee fails to pay Lessor any such amount is within ten (1) days of such
demand, Lessee shall pay interest thereon until paid at the rate of 18% per
annum or the maximum rate allowable by law, whichever is less.
6.
LESSOR DISCLAIMER OF WARRANTIES, LESSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED,
AS TO THE CONDITION, MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF,
THE ABSENCE OF ANY CLAIM OF INFRINGEMENT OR THE LIKE WITH RESPECT TO, OR ANY
OTHER MATTER CONCERNING, TH EQUIPMENT AND EXPRESSLY DISCLAIMS ANY SUCH
WARRANTIES OR ANY OTHER WARRANTIES IMPLIED BY LAW. LESSOR MAKES NO WARRANTIES
WITH RESPECT TO ANY PATENT, COPYRIGHT, TRADEMARK, TRADE NAME OR TITLE RELATING
TO THE EUQIPMENT OR LESSEE;S RIGHTS TO ANY SUCH INTELLECTUAL, PROPERTY, LESSEE
HEREBY WAIVES ANY CLAIM IT MIGHT HAVE AGAINST LESSOR FOR ANY LOSS, DAMAGE OR
EXPENSE
CAUSED
BY
THE EQUIPMENT OR BY ANY DEFECT THEREIN, OR BY THE USE OR MAINTENANCE OF, OR
SERVICING OR ADJUSTMENT TO, THE EQUIPMENT AND, AS TO LESSOR, LEASES THE
EQUIPMENT AS-IS AND WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, LESSOR
WILL NOT BE LIABLE FOR ANY LOSS OR INTERRUPTION OF OR DAMAGE TO LESSEE’S
BUSINESS ON ACCOUNT OF ANY MECHANICAL FAILURE OR DELAY IN CONNECTION WITH THE
FURNISHING OR USE OF THE EQUIPMENT. Lessee acknowledges that Lessor is not
a
dealer or manufacturer of Equipment of any kind and is not the seller of the
Equipment, and that each unit of Equipment is of a type, size, design and
capacity selected solely by Lessee. Lessee also acknowledges that Lessor
supplies the Equipment without any obligation to install test, erect, service
or
maintain the Equipment. If the Equipment is not properly installed does not
operate as represented or warranted by the manufacturer or seller thereof,
or is
unsatisfactory for any reason. Lessee shall make any claim on account thereof
solely against the manufacturer or seller and no such occurrence shall relieve
Lessee of any if its obligations under this lease. The only warranty applicable
to any Equipment is the manufacturer’s warranty, if any (in the case of new
Equipment) and Lessor makes no warranty to Lessee. Lessee acknowledges receipt
of the manufacturer’s warranty with respect to any new Equipment. So long as
Lessee is not in default under this lease, Lessor assigns to Lease any
manufacturer’s, seller’s, or other warranty, whether express or implied, on the
Equipment and any claim that Lessor may have as owner of the Equipment against
the manufacturer or supplier or any other person. All claims or actions on
any
warranty shall be made or prosecuted by Lessee, at its sole expense, and Lessor
shall have no obligations whatsoever to make any claim on such warranty. Lessor
is not liable for any modification, breach or rescission of any warranty or
service agreement. Any agreement that Lessee may have with any third party,
including any manufacturer or vendor, relating to services shall be separate
and
distinct from this lease and Lessor shall not have any obligations thereunder.
Lessee acknowledges that this lease constitutes a “finance lease” under UCC
Article 2A in all respect, and that Lessor’s sole obligations to Lessee
hereunder is not to interfere with Lessee’s quiet enjoyment of the Equipment so
long as Lessee is not in default hereunder. Subject to the foregoing sentence
and to the extent permitted by law, lessee unconditionally and irrevocably
waives any and all rights and remedies against Lessor at law or in equity
(including without limitation, any rights and remedies granted Lessee under
Article 2A of the Uniform Commercial code and/or the right to reject any
Equipment or repudiate this lease). Lessee agrees that Lessor assumes no
liability for and makes no representation as to the treatment by Lessee of
this
lease, the equipment or the rent payments for financial statement or tax
purposes. In the event that there is a material adverse change in Lessee’s
financial condition, as determined by Lessor, prior to Lessor’s payment for any
Equipment to be leased hereunder, Lessee agrees that Lessor shall have no
obligations to purchase such Equipment and lease it to Lessee.
7.
DELIVERY, OWNERSHIP, LOCATION AND INSPECTION. Lessee shall pay for all
transportation, insurance and any other charges with respect to delivery and
installation of the Equipment. The Equipment shall at all times remain the
property of Lessor. Lessee shall have no right, title or interest in the
Equipment, except as set forth herein. Lessee at its expense shall protect
and
defend the title and interest of Lessor and keep the Equipment free of all
claims and liens other than claims and liens created by or arising through
the
Lessor. The Equipment shall remain personal property regardless of it attachment
to realty and Lessee agrees to take such action at its expense as may be
necessary to prevent any third party from acquiring any interest in the
Equipment. Lessee will provide a suitable place, within the continental United
States, for the Equipment and shall not remove the Equipment from the Equipment
Location without the prior written consent of Lessor, which consent shall no
be
in reasonably withheld. Lessor may inspect the Equipment and Lessee’s records
relating to the Equipment at any time during regular business
hours.
8.
ADDITIONAL DOCUMENTS AND INFORMATION; COSTS AND EXPENSES. Lessee shall execute
and deliver to Lessor such documents as Lessor may reasonable deem necessary
to
evidence or protect Lessor’s interests in the Equipment and Lessor’s rights
under this lease. Lessee authorizes Lessor to file such instruments as may
be
necessary to protect Lessor’s interests in the Equipment (including financing
statements and certificates of title) without Lessee’s signature and if such
signature is required by law, Lessee appoints Lessor as Lessee’s
attorney-in-fact to execute such items, in Lessee’s name. To the extent
permitted by applicable law, upon demand, Lessee will reimburse and pay Lessor’s
costs and expenses, including attorney’s fees and costs, with respect to the
underwriting, documentation, making and any amendment and other modification
of
this lease and all related documents, including without limitation the costs
of
filing all financing statements and other perfection documents and
all amendments thereto, and confirmations, releases and terminations thereof,
in
all public offices in which Lessor may deem filing to be appropriate, obtaining
and reviewing searches of filing offices and organizational records; obtaining,
reviewing, negotiating and executing other documentation required by Lessor
hereunder, requested by Lessee or otherwise deemed necessary or appropriate
in
connection with this lease and the related documents. Any document fee collected
by Lessor in advance is intended to cover only Lessor’s costs of filing an
initial financing statements against Lessee and of preparing this lease and
the
standard documents related to this lease; and additional costs,
reimbursable by Lessee, may be incurred in connection with the
closing of this lease transaction or thereafter. Upon request by Lessor, Lessee
shall verify in writing the location of the Equipment and provide Lessor with
maintenance information regarding the Equipment. Lessee shall furnish Lessor
with such financial information as Lessor may from time to time request. Lessee
hereby warrants and represents that all financial statements heretofore and
hereafter delivered to Lessor by or on behalf of Lessee have been and will
be
prepared in accordance with generally accepted accounting principles
consistently applied, and all statements and data submitted to Lessor in
connection with this lease shall be complete and accurate in all
aspects.
9.
INDEMNITY. Lessee shall hold Lessor harmless from, and pay to Lessor the amount
of any fine, penalties or other amounts for which Lessor is held liable as
a
result of and any legal expenses Lessor has arising out of the use, condition,
ownership or operation of any item of Equipment, including any claims made
under
the strict liability doctrine, and as a result of any lien, encumbrance or
claim
made on the Equipment by anyone, including the Lessee’s employees and agents.
Lessee shall indemnify Lessor against, and hold Lessor harmless from, any and
all claims, actions, damages (including reasonable attorney’s fees),
obligations, liabilities and liens (including any of the foregoing arising
or
imposed without Lessee’s fault or negligence, or in connection with latent or
other defects, or any claim for patent, trademark, or copyright infringement
or
under the doctrine of “strict liability”), imposed or incurred by or asserted
against Lessor or its successors or assigns, arising out of the manufacture,
purchase, lease, possession, operation, condition, return or use of the
Equipment, by operation of law or by Lessee’s failure to comply with the terms
of this lease. Upon written notice by Lessor of the assertion of any claim
hereby indemnified against, Lessee shall assume full responsibility for the
defense thereof.
10.
USE AND REPAIRS. Lessee shall use the Equipment within its recommended
capacities and only for the purpose(s) for which it was designed. Lessee shall
comply with all laws, regulations and ordinances relating to the possession
and
use of the Equipment including, without limitation, job safety, health, fire
and
environmental laws applicable to the Equipment, Lessee will maintain the
Equipment in good repair, condition and working order and will furnish all
parts
and services required thereof, all at its expense, ordinary wear and tear
expected. Lessee shall at its expense, make all modifications and improvements
to the Equipment required by law, and shall not make other modifications or
improvements without the prior written consent of Lessor. All parts,
modifications and improvements to the Equipment shall, when installed or made,
immediately become the property of Lessor and part of the Equipment doe all
purposes.
11.
LOSS OR DAMAGE. Lessee hereby assumes and shall bear the entire risk of loss,
theft, damage or destruction of all or any items of the Equipment from any
cause
whatsoever; and no loss, theft, damage or destruction of all or any item of
the
Equipment shall relieve Lessee of its obligation to pay rent or of any other
obligation under this lease, which shall continue in full force and effect,
notwithstanding such loss, theft, damage or destruction. The risk of loss shall
pass to Lessee on the earlier of (i) delivery of the Equipment to a carrier
for
shipment to Lessee or (ii) tender of the Equipment to Lessee, in the event
of
damage to any item of Equipment, Lessee shall immediately place the same in
good
repair (ordinary wear and tear expected), Lessee shall promptly notify Lessor
of
any loss, theft, material damage or destruction of the Equipment and , if Lessor
determines that any item of Equipment is lost, stolen, destroyed, worn out
or
damaged beyond repair as a result of ordinary use, neglect, abuse or any other
cause whatsoever, Lessee at the option of Lessor, will: (a) replace the same
with similar Equipment in good repair, or (b) pay to Lessor; (i) all rent and
other amounts due from Lessee hereunder with respect to such item but unpaid
at
the date of such payment plus 9ii) all rent with respect to such item of the
balance of the term of this lease not yet due at the time of such payment,
discounted from the respective dates installment payments would be
due,
at
the
rate of 3% per annum, plus (iii) the greater of (x) ten percent of the Total
Cost related to such item as set forth in the Schedule, or (y) Lessor’s
“Anticipated Residual Value” of such item of Equipment, as determined by the
books of Lessor as of the Commencement Date of the applicable Schedule, or
(z)
the Mandatory Purchase Price of such item, if applicable. Upon payment of such
amount in immediately available funds to Lessor, such item shall become the
property of Lessee. Lessor will transfer to Lessee, without recourse or
warranty, all of Lessor’s right, title and interest therein, the rent with
respect to such item shall terminate, and the basic rental payments on the
remaining items shall be reduced accordingly. Lessee shall pay any sales and
use
taxes due on such transfer. Any insurance or condemnation proceeds received
shall be credited to Lessee’s obligation under this paragraph, in such order of
application as Lessor, in its sole discretion, they determine, and Lessor shall
be entitled to any surplus.
12.
INSURANCE. Lessee shall obtain and maintain on or with respect to the Equipment
at its own expense (s) liability insurance insuring against liability for bodily
injury and property damage with a minimum limit of $1,000,000.00 combined single
limit or such greater amount as may be set forth in my Schedule or as may be
prescribed by any applicable state law specifying minimum insurance
requirements, and (b) physical damage insurance insuring against loss or damage
to the Equipment in an amount not less than the full replacement value of the
Equipment. Lessee shall furnish Lessor with a certificate of insurance
evidencing the insurance of a policy or policies to Lessee in at least the
minimum amounts required herein naming Lessor as an additional insured
thereunder for the liability coverage and as loss payee for the property damage
coverage. Each such policy shall be in such form, including a maximum
deductible, and with such insurers may be satisfactory to Lessor, and shall
contain a clause requiring the insurer to give to Lessor at least 30 days’ prior
written notice of any alteration in the terms of such policy or the cancellation
thereof, and a clause specifying that no action or misrepresentation by Lessee
shall invalidate such policy. Lessor shall be under no duty to ascertain the
existence of or to examine any such policy or to advise Lessee in the event
any
such policy shall not comply with the requirements hereof, Lessee hereby
appoints Lessor as Lessee’s attorney-in-fact to make claim for, receive payment
of, and execute and endorse all documents, checks or drafts for loss or damage
under any such insurance policy. In the event Lessee fails to procure, maintain,
pay for or provide Lessor with evidence of the insurance required by this lease,
or to pay any fees, assessments, charges or taxes as required in this lease.
Lessor shall have the right, but not be obligated, to obtain insurance covering
Lessor’s interest in the Equipment from an insurer of Lessor’s choice, or pay
said fees, assessments, charges and taxes, as the case may be. In that event,
Lessee shall reimburse Lessor upon demand for the cost thereof together with
interest until paid at the rate of 18% per annum or the maximum rate allowable
by law, which ever is less, and failure to pay the same shall constitute an
Event of Default under this lease. At Lessor’s discretion, Lessor may add all
costs of acquiring and maintaining any insurance provided for herein, including
without limitation all premiums therefore and all premium finance charges,
documentation fees, tracking fees and all other fees and charges incurred by
Lessor in connection therewith, plus fees for Lessor’s services in
placing and maintaining such insurance 9all such premiums, costs, fees and
charges are referred to herein, collectively, as the “Insurance Charge”), to the
amounts due from
Lessee
under this lease. Lessee will pay the Insurance Charge in equal installments
allocated to the remaining Rental Payments due under this lease (plus interest
on such allocation at 17% per annum or the maximum rate allowable by law,
whichever is less). NOTHING IN THIS XXXXXX WILL CREATE AN INSURANCE RELATIONSHIP
OF ANY TYPE BETWEEN LESSOR AND ANY OTHER PERSON.
13.
RETURN OF THE EQUIPMENT. Unless Lease purchases the Equipment or the term of
this lease has been extended or renewed, each strictly in accordance with the
terms and conditions set forth in this lease, upon the expiration or earlier
or
earlier termini nation of this lease. Lessee shall, at its sole expense and
risk, de-install disassemble, pack, crate, insure and return the Equipment
to
Lessor (all in accordance with applicable industry standards) or any location
in
the continental United States selected by Lessor. The Equipment shall be in
the
same condition as when received by Lessee, reasonable wear and tear resulting
from normal and proper use excepted (and, if applicable, in the condition set
forth in the Schedule or any rider or addendum thereto), shall be in good
condition and working order as required by this lease, shall be free and clear
of any liens, shall comply with all applicable laws and regulations and shall
include all manuals, specifications, repair and maintenance records and similar
documents. Until any Equipment is returned as required above, all terms of
this
lease shall remain in full force and effect with respect thereto including,
without limitation, obligations to pay rent and to insure and repair such
Equipment.
14.
DEFAULT. Each of the following events shall constitute an “Event of Default”
hereunder; (a) Lessee shall fail to pay any installment of rent or other payment
required hereunder when due; (b) Lessee shall fail to observe or perform any
other covenant or agreement to be observed or performed by Lessee hereunder
and
such failure continues for ten (10) days following written notice thereof by
Lessor or Lessee; (c) Lessee or any guarantor of this lease or any partner
of
Lessee if Lessee is a partnership shall cease doing business as a going concern
or make an assignment for the benefit of creditors; (d) Lessee or any
guarantor of this lease or any partner of the Lessee if Lessee is a partnership
shall admit in writing an inability to pay debts as they come due, authorize
or
voluntarily file, or have filed against it involuntarily, a petition for
liquidation, reorganization, adjustment of debt , or similar relief under the
federal bankruptcy code or any other present or future federal or
state bankruptcy or insolvency law, or a trustee, receiver, or
liquidator shall be appointed of it or of all or a substantial part
of its assets, (d) any individual Lessee, guarantor of this lease, or partner
of
Lessee of Lessee is a partnership shall die; (f) any representation or warranty
made by Lessee or any guarantor of this lease shall prove to have been false
or
materially misleading when made: (g) an event of default shall occur under
any
other obligation Lessee or any guarantor of this leases owes to Lessor; (h)
any
material indebtedness of Lessee or any guarantor of this lease shall be
accelerated following a default thereunder or, if any such indebtedness is
payable on demand, payment thereof shall be depended; (i) if Lessee or any
guarantor of this lease is a corporation, partnership or limited liability
company, more than 50% of the guarantor of this lease shall consolidate with
or
merge into, or sell or lease all or substantially all of its assets to, any
individual, corporation, or other entity; (k) Any guarantor shall repudiate,
revoke or purport to revoke such guarantor’s guaranty of this lease or shall
fail to observe or perform any of the obligations of guarantor under such
guaranty; or (l) Lessee no longer occupies the premises where any Equipment
subject to this leas is located, or the mortgage or owner of such premises
asserts the right to take possession thereof or to exercise eviction or other
remedies under the mortgage or lease of the premises.
15.
REMEDIES. Upon the occurrence of an Event of Default and at any time thereafter,
Lessor may , with or without terminating this lease, exercise any one or more
of
the following remedies as Lessor in its sole discretion may lawfully elect;
(a)
Upon written notice to Lessee terminate this lease and any or all schedules
to
this Master Lease; (b) Declare immediately due and payable ad recover from
Lessee, as liquidated damages and not as a penalty, an amount equal to the
sum
of (i) all rent and other amounts then due and unpaid plus (ii) all rent and
any
other payments to become due hereunder for the full term of this lease
discounted from their respective due dates at the rate of 3% per annum, plus
(iii) the greater of (A) ten percent (10%) of the Total Cost related to the
Equipment as set forth in the applicable schedule, or (B) Lessor’s “Anticipated
Residual Value” of the Equipment, as determined by the books of Lessor as of the
Commencement Date of the applicable Schedule, or (C) the
Mandatory Purchase Price of the Equipment, if applicable and such sum
of items (i) through (iii) (“Lessor’s Damages”) shall thereupon become
immediately due and payable without further notice or demand; provided, however,
that upon the occurrence of an Event of Default specified
in paragraph 14 (d), such amount shall automatically become and be
immediately due and payable without notice or demand of any kind and all rights
of Lessee to use the Equipment shall terminate but Lessee
shall be and remain liable as provided in this paragraph 15; (c) Proceed by
appropriate court action to enforce performance by Lessee of the applicable
covenants of this lease and/or recover damages for the breach thereof;
(d)Whether or not this lease is terminated, repossess the Equipment wherever
located, with or without notice to Lessee or legal process, and. for this
purpose Lessor and/or its agents may enter upon any premises of or under the
control or jurisdiction of Lessee or any agent of Lessee, without liability
therefore to Lessee, and remove the Equipment; or upon demand by Lessor, Lessee
agrees to deliver the Equipment to Lessor in accordance with paragraph 13;
(c)
Lessor may recover interest on the unpaid balance of Lessor's Damages from
the
date it becomes payable until fully paid at the rate of the lesser of 18% per
annum or the highest rate permitted by law, and. may in any event recover legal
fees and other expenses incurred by reason of an Event of Default or
the exercise of any remedy hereunder, including expenses of repossession,
repair, storage, transportation, and disposition of the Equipment; (f) Lessor
may extreme any other right or remedy available Io it by law or by agreement.
In
the event Lessor repossesses the Equipment, Lessor shall cither retain the
Equipment in full satisfaction of Lessee'; obligation hereunder or use
reasonable efforts to sell or lease each item of Equipment in such manner and
upon such terms as Lessor may determine in its sole discretion. The proceeds
of
such sale or lease shall be applied to reimburse Lessor for Lessor's Damages
and
any additional amount due under clause (e) above. Lessor shall be entitled,
to
any surplus and Lessee shall remain liable for any deficiency. No remedy given
in this paragraph is intended to be exclusive, and each shall be cumulative
but
only to the extent necessary to permit Lessor I o recover amounts for which
Lessee is liable hereunder. No express or implied waiver by Lessor of any breach
of Lessee's obligations hereunder shall constitute a waiver of any other breach
of Lessee's obligations hereunder.
16.
ASSIGNMENT, WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, LESSEE WILL NOT SELL,
ASSIGN. SUBLET, PLEDGE, OR OTHERWISE ENCUMBER OR PERMIT A LIEN ARISING THROUGH
LESSEE TO EXIST ON OR
AGAINST
ANY INTEREST IN THIS LEASE OR THE EQUIPMENT. Lessor may assign its interest
in
this lease and sell or grant a security interest in all or any part of the
Equipment without notice to or the consent of Lessee. If Lessee is given notice
of such assignment, it shall acknowledge receipt of that notice in writing,
Each
assignee or mortgagee from Lessor shall have all of the rights, but none of
the
obligations, of Lessor under this lease, Lessee shall not assert against any
assignee and/or mortgagee any defense, counterclaim or offset that Lessee may
have against Lessor. Lessee's obligation to pay rent to the assignee shall
be
absolute and unconditional and shall not be subject to any defense or
offset.
17.
NON-CANCELABLE AND UNCONDITIONAL OBLIGATION. This lease cannot be canceled
or
terminated except as expressly provided herein. This lease is a net lease and
Lessee agrees that its' obligation to pay rent and. any other amounts payable
hereunder is absolute and unconditional and shall not be subject to any
abatement, reduction, setoff or defense of any kind, if any Schedule is deemed
at any time to be a lease intended as security: (i) Lessee grants Lesser a
senility interest in the Equipment to secure its obligations under this lease
and all other indebtedness at any time owing by Lessee Io Lesser; (ii) Lessee
agrees that upon the occurrence of an Event of Default, in addition to all
of
the other rights and remedies available to Lesser hereunder. Lesser shall have
all of the right and remedies of a secured party under the Uniform Commercial
Code; (iii) such Schedule shall be construed in a manner so that interest,
the
applicable interest rate or other charge shall not exceed, in any event, the
maximum amount of time price differential, rate, interest or amount allowed
by
applicable law, and any excess payment will be applied to the payments due
under
such Schedule as a prepayment of principal, and any remaining excess will be
refunded to Lessee; and (iv) if Lessee is an individual and the principal amount
of such Schedule is $100,000 or more, such Schedule is made pursuant to Minn.
Stat. Sec. 334.01.
18.
INDEMNIFICATION FOR LOSS OF TAX BENEFITS, Lessor's loss of or loss of the right
to claim, or recapture of, all or any part of the federal or state income tax
benefits Lessor anticipated as a result of entering into this lease and owning
the Equipment is referred to herein as a "Loss." If for any reason this lease
is
not a true lease for federal or state income tax purposes, or if for any reason
(even though this lease may be a true lease) Lessor is not entitled to
depreciate the Equipment for federal or state income tax purposes in the manner
that Lessor anticipated when entering into this lease, and as a result Lessor
suffers a Loss, then Lessee agrees to pay Lessor, as additional Basic Rent
under
this lease, a lump-sum amount which, after the payment of all federal, state,
and local income taxes on the receipt of such amount, and using the same
assumptions as to tax benefits and other matters Lessor used in originally
evaluating and pricing this lease, will in the reasonable opinion of Lessor
maintain Lessor's net after-tax rate of return with respect to this lease at
the
same level it would have been if such Loss had not occurred. Lessor will notify
Lessee of any claim that may give rise to indemnity hereunder. Lessor shall
make
a reasonable effort to contest any such claim but shall have no obligation
to
contest such claim beyond the administrative level of the Internal Revenue
Service or other taxing authority. In any event, Lessor shall control all
aspects of any settlement and contest. Lessee agrees to the legal fees and
other
out-out-pocket
expenses
incurred by Lessor in defending any such claim even if Lessor’s is successful.
Notwithstanding the foregoing, Lessee shall have no obligation to inderonify
Lessor for any Loss caused solely by (a) a casualty to the Equipment IF Lessee
pays the amount Lessee is required to pay as a result of such casualty. (b)
Lessor’s sale of the Equipment other than on account of an Event of Default
hereunder. (c) failure of Lessor to have sufficient income to utilize its
anticipated tax benefit, and (d) a change in tax law (including tax rates)
effective after the Lease begins. For purpose of this paragraph, the term
“Lessor” shall include any member of an affiliated group of which Lessor is (or
may become) a member if consolidated tax return are filed for such affiliated
group for federal income tax purposes. Lessee’s indemnity obligations under this
paragraph shall survive termination of the Lease
19.
SURVIVAL OF INDEMNITIES, REPRESENTATION AND WARRANTIES; CROSS DEFAULT. All
representatives, warranties and indemnities of Lessee made or agreed to in
this
lease and any certificates delivered in connection herewith shall survive
expiration or termination of this lease. Lessee hereby agrees that any default
by Lessee in the payment of rent or performance of any term or condition of
any
lease or loan between Lessee and Lessor, or under and Schedule, whether
previously or hereafter entered into, shall at the option of Lessor constitute
an Event of Default in all leases, loans or Schedules, including this
lease.
20.
GOVERNING LAW AND CONSTITUTION. This lease shall in all respects by governed
by,
and construed in accordance with, the laws of the State of Minnesota without
giving effect to conflict of laws provisions; provided that any interest and
finance charges hereunder shall be governed by federal law and, to the extent
applicable, the substance laws of the State of Minnesota. Lessee herby consents
to jurisdiction and venue of the federal or state courts sitting in the State
of
Minnesota for purposes of resolving all dispute of any nature whatsoever
regarding the lease, or any transaction contemplated hereby, and Leases hereby
waives objection which it may now or hereafter have to the laying of
jurisdiction, or venue in the federal courts of Minnesota Lessor and Lessee
agree that a summons and complaint commencing an action or proceeding in an
such
court be properly served and shall confirm personal jurisdiction if served
personally, by certified mail to it at its address designated pursuant to the
lease, or as otherwise provided under the respective rules of the state or
federal courts of Minnesota. Any provision of this lease which may be prohibited
or unenforceable in any in any jurisdiction shall not, as to such jurisdiction,
invalidate the remaining provisions hereof and shall not invalidate or render
unenforceable such provision in any other jurisdiction. Lessee agrees that,
at
Lessor’s sole elections and determination, Lessor may select an alternative
forum, including arbitration or mediation, to adjudicate any dispute arising
out
of this lease. THE PATIES HERETO, AFTER CONSULTING (OR HAVING HAD AN OPPURTUNITY
TO CONSULT) WITH COUNSEL OF THEIR CHIOCE, KNOWINGLY AND VOLUNTARYILY WAIVE
ANY
RIGHT TO TRAIL BY JURY IN ANY ACTION OR PROCEEDINGS RELATING TO THTIS LEASE,
INCLUDING ANY LITIGATION REGARDING THE ENFORCEMENT OF THIS LEASE OR ANY RELATED
AGREEMENT.
21
LESSEE REPRESENTATIONS AND WARRANTIES, Lessee represents and warrants to Lessor
with regard to this lease that: (a) The execution, delivery, and performance
of
this lease has been duty authorized by all necessary action on the part of
Lessee and this lease constitutes a valid and binding obligation of Lessee
enforceable against Lessee in accordance with its terms; (b) The individual
executing this lease on behalf of Lessee is duly authorized; (c) Neither the
execution or delivery by Lessee of this lease, nor the performance thereof
by
Lessee, conflicts with results in a breach of or constitutes a default or
violation of Lessee’s applicable organizational documents including as
applicable, its Certificate of Incorporation, By-Laws, articles of organization,
operating agreement or partnership agreement applicable law court order or
any
agreement other instilment to which Lessee is a party or by which it is bound;
(d) Lessee is duly organized and in good standing in its state of organization
does not do business under a trade or assumed name is duly qualified to do
business in each jurisdiction where the Equipment is located and where such
qualification is required; (e) No approval consent or authorization is required
from any governmental authority with respect to the execution, delivery or
performance of this lease, or if any such approval, consent or authorization
is
required, it has been obtained; and (f) Each item of Equipment is leased and
will used solely for business purposes, and the Equipment will not be used
for
personal, family, or household purposes.
22.
MISCELLANEOUS. This lease constitutes the entire agreement between Lessee and
Lessor with respect to the Equipment and there is no understanding or agreement,
oral or written, which is not set forth herein. This lease may not be amended
or
modified except by a writing signed by Lessor and Lessee and shall be binding
upon and inure to the benefit of the parties hereto, their permitted successors
and assigns. Any written notice hereunder to Lessee or Lessor shall be deemed
to
have been given personally or deposited in the United States mails, certified
or
registered mail, addressed set forth above or at such other address as may
be
substitute therefore by notice given pursuant to the terms hereof. In the event
there is more than one Lessee named herein or in any Schedule, the obligations
of each shall be joint and several. There shall be only one counterpart of
the
Master Lease and each Schedule and each shall bear the original signature of
Lessee and be marked “Original.” To the extent that any Schedule constitutes
chatiel paper (as that term is defined by the Uniform Commercial Code) a
security or ownership interest intended to be created through the transfer
and
possession of the Schedule can be done only by the transfer of the “Original”
bearing the original signature of Lessor, Lessor in its sole discretion, may
permit Lessee to deliver an executed copy of this lease and any document by
telecopier transmission. Lessee hereby represents and agrees (a) that such
transmission constitutes due delivery of such executed document, (b) that the
counterpart of such executed document as printed by the recipient’s telcopier
machine, including Lessee’s signature thereon, shall be deemed to constitute an
original and shall be admissible in any court or other legal proceeding as
original, and (c) to deliver to Lessor, promptly on request such document
bearing Lessee’s original signature; provided that neither delivery nor failure
to deliver the document bearing Lessee’s original signature shall
limit or modify the representations and agreements set forth in clauses (a)
and
(b) above. This lease shall not become effective or binding until executed
by
Lessor at its place of business in Minneapolis, Minnesota.
Our
institution complies with Section 326 of the USA PATRIOT Act. This law mandates
that we verify certain information about you while processing your account
application.
|
Lessor:
|
TCF
Equipment Finance, Inc
|
By:
|
Title:
|
|||
|
Lessee:
|
Pool
Press, Inc
|
By:
|
Xxxxxxx
Xxxxxxx, President
|
|||
Equipment
Schedule
(Fair
Market Purchase)
|
The
“Lease”: Equipment Schedule Number 000-0000000-000 Dated July 10,2007 to
Master lease Number 0505846L Dated July 10,2007
|
|
“Lessee”
|
|
Pools
Press, Inc. 0000 Xxxxxxxxxx Xxx, Xxxxxxxxxx, XX 00000
|
|
“lessor”
|
|
TCF
Equipment Finance, Inc. 00000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx
, XX
00000
|
This
Equipment Schedule (this “Schedule”) is entered into pursuant to and incorporate
the terms of the Master Lease identified above (except as expressly modified
by
this Schedule) between Lessor and Lessee (the “Master Lease” and together with
this Schedule, this “Lease”). Upon the execution and delivery by Lessor and
Lessee of this Schedule, Lessee’s execution and delivery to Lessor of a Delivery
and Acceptance Certificate for the Equipment describe d below, and satisfaction
of all Lessor’s requirements on or before the date that Lessor’s credit approval
shall expire with respect to this lease, Lessor hereby leases to Lessee, and
Lessee hereby leases from Lessor, the equipment upon the terms conditions of
this Lease. All capitalized terms not otherwise defined in this Schedule shall
have the meanings assigned in the Master Lease.
SUMMARY
OF TERM AND RENTAL PAYMENTS:
|
Commencement
Date
|
Rent
Payment Period Monthly
|
Initial
Term
60
Months
|
Each
Rent Payment $1,945.00 plus applicable taxes except financed sales
tax
included in Total Cost
|
Interim
Rent Daily Factor 0.0299%
|
Advance
Rent Payment N/A
for Installments N/A
|
Security
Deposits N/A
|
Total
Cost $101,050.00
|
EQUIPMENT,
PERSONAL PROPERTY, SERVICES AND/OR SOFTWARE:
|
Description
(including features)
|
Location
|
|
PTR
8300E Package with Truflow Standard and Dual Core Server together
with all
attachments accessories thereto
|
0000
Xxxxxxxxxx Xxx. Xxxxxxxxxx XX,
00000
|
Each
rent
Payment shall be payable to arrears commencing on the date that is one Rent
Payment Period after the Commencement Date and on the same day of each
subsequent Month for the initial Term and any renewal term.
Upon
any
return of Equipment to Lessor pursuant to the terms of this Lease, Lessee shall
pay to Lessor a restocking fee shall be payable on demand and may, at Lessor’s
option,
be
included in Lessor’s final invoice to Lessee, collected by Lessor at the time
the Equipment is returned or otherwise demanded by Lessor.
The
following additional provisions are applicable to the Equipment covered by
this
Lease only:
|
|
1.
|
So
long as this Lease has not been terminated early and no Event of
Default
exists, upon expiration of the initial Term (“Lease End”), Lessee may
purchase all, but not less than all, of the Equipment for the fair
market
value of the Equipment, as mutually determined by Lessor and Lessee,
plus
all sales and use taxes arising on the sale of the Equipment. To
exercise
the foregoing purchase option, Lessee must give written notice thereof
to
Lessor at least 90 days and no more than 120 days prior to Lease
End. If
Lessee fails to give such notice, or if the parties cannot agree
on the
Fair Market Value of the Equipment 60 days before Lease End, then
the
purchase option shall lapse. If the purchase option lapses, then
at least
30 days before Lease End or the end of any renewal term, Lessee must
give
Lessor of its intent to return the Equipment and request return location
instructions. If lessee fails to give such notice , or gives notice
but
fails to rerun the Equipment in accordance with Section 13 of the
Master
Lease, this Lease will automatically renew, at the same rental and
other
terms set forth in this Lease, for additional successive noncancelable
12
month terms after the Initial Tern Until timely written notice of
return
and a proper return of the Equipment is made
|
|
|
2.
|
If
Lessee gives timely notice of election to purchase the Equipment
as
provided in paragraph 1 and fails to timely pay the purchase price,
then
Lessor may, in its sole discretion, by written notice to Lessee (a)
treat
the Equipment as purchased and enforce payment of the purchase price,
or
(b) declare a failure to meet the purchase conditions whereupon Lessee’s
intrest in the Lease and Equipment shall terminate automatically
and
lessee shall return the Equipment in accordance with Section 13 of
Master
Lease.
|
|
|
3.
|
Upon
Lessee’s exercise of the purchase price plus applicable sales and use tax
and any rent or other amount owing under this Lease, the Equipment
will be
deemed transferred to Lessee at its then location and, on Lessee’s request
at such time, Lessor will deliver to Lessee a xxxx of sale for the
Equipment, “WHERE IS, AS IS” WITHOUT ANY WARRANT AS TO TITLE OR WITH
RESPECT TO THE EQUIPMENT, EXPRESS OR IMPLIED.
|
|
Lessor
|
TCF
Equipment
|
By
|
_______________
|
Title:
|
______
|
|
Lessee:
|
Pools
Press, Inc
|
By:
|
_______________
|
Xxxxxx
Xxxxxxx, President
|
|
|
Delivery
and acceptance Certificate
|
|
The
“Lease”: Equipment Schedule Number 000-0000000-000 Dated July 10,2007 to
Master lease Number 0505846L Dated July 10,2007
|
|
“Lessee”
|
|
Pools
Press, Inc. 0000 Xxxxxxxxxx Xxx, Xxxxxxxxxx, XX 00000
|
|
“lessor”
|
|
TCF
Equipment Finance, Inc. 00000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx
, XX
00000
|
This
Certificate relates to the equipment (the “Equipment”) that is described in the
Lease.
Pursuant
to the Lease, Lessee acknowledges that the Lessor has acquired the Equipment
in
connection with the Lease and Lessee has either received a copy of the purchases
agreement with vendor of the Equipment on or before signing the Lease or has
approved such purchases. Lessee herby represents warrants and
certificates that (i) all of the Equipment has been delivered to Lessee at
the
equipment Location set forth in the Lease and has been installed, tested and
inspected by Lessee or duly authorized representatives of Lessee, (ii) the
Equipment Description set forth in the Lease is complete and correct, (iii)
the
Equipment is exactly what Lessee ordered, is in good working order, is
satisfactory in all respects and has been accepted by Lessee has made a deposit
to the Equipment vendor(s), by signing this Certificate, Lessee hereby transfers
all of Lessee’s right , title and interest in and to the Equipment to Lessor,
whether or not Lessee has been reimbursed for the deposit(s), Lessee
acknowledges that Lessor shall have sole and exclusive title to all of the
Equipment.
IMPORTANT:
LESSEE SHOULD SIGN RHIS CERTIFICATE ONLY AFTER LESSEE HAS RECEIVED AND IS
COMPLETELY SATISFIED WITH THE EQUIPMENT BY SIGNING THIS CERTIFICATE, LESSEE
(1)
IS IRREVOCABLY ACCEPTING THE EQUIPMENT, (2) BECOMES ABSOLUTELY AND IRREVOCABLY
OBLIGATED TO LESSOR UNDER THE LEASE, AND (3) MAY NOT THEREAFTER REJECT THE
EQUIPMENT, CANCEL OR TERMINATE THE LEASE OR DENY ANY STATEMENT MADE IN THIS
CERTIFICATE FOR ANY REASON WHATSOEVER.
|
Acceptance
Date:
|
|
Lessee:
|
Pools
Press, Inc.
|
By:
|
Xxxxxxx
Xxxxxxx, President
|
