MASTER LEASE OF PERSONAL PROPERTY
EXHIBIT 10.1
MASTER LEASE OF PERSONAL PROPERTY
M&I Equipment Finance Company (“Lessor”) And
Xxxxxxx Electronics, Inc. (“Lessee”)
0000 Xxxxx Xxxxx
Xxxxxxx, XX 000000000
June 28, 2006
Master Lease #26308
Dated June 28, 2006
Terms and Conditions of Master Lease of Personal Property
This Master Lease of Personal Property (the “Master Lease”) is effective as of the date listed
above, and is made and entered into by and between the Lessor and Lessee, both identified above. If
more than one party executes the Master Lease and any Lease as Lessee, each shall be jointly and
severally liable hereunder.
1. LEASE. Lessor hereby leases to Lessee and Lessee hereby leases and rents from Lessor the
personal property (together with all attachments, replacement parts, substitutions, additions,
repairs and accessories incorporated therein, and/or affixed thereto, and proceeds thereof,
referred to as “Equipment”) as set forth in each Equipment Lease executed pursuant to this Master
Lease (each a “Lease”) incorporating by reference all of the terms and conditions of this Master
Lease (the term “Master Lease” shall also include any riders or attachments to this Master Lease
entered into with respect to a Lease and all of the other documents and agreements executed in
connection herewith and therewith).
2. TERM OF LEASE. This Master Lease is effective as of the date specified above and shall be
non-cancelable so long as any Lease entered into pursuant to this Master Lease is continuing.
Thereafter, this Master Lease may only be canceled by Lessor in its sole discretion. By entering
into a Lease, Lessor leases the Equipment described therein to Lessee, and Lessee leases such
Equipment from Lessor, in each case, subject to the terms and conditions in this Master Lease and
such Lease and all of the other documents and agreements executed in connection herewith and
therewith. Each Lease, incorporating the terms and conditions of this Master Lease, will constitute
a separate lease. The “Commencement Date of Lease” with respect to each item of Equipment leased
under a Lease shall commence on the date of execution of such Lease and continue until the total
number of “consecutive rental payments” as specified in the Lease, shall have been made.
3. RENTAL. Lessee agrees to make all rental payments to the Lessor as specified in the applicable
Lease. Payment of said rental shall be made on the dates specified in the Lease at the office of
Lessor, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or to such other person, firm or
corporation at such other place as Lessor may from time to time designate in writing. Lessor and
Lessee acknowledge that the Payment Schedule specified on the Lease was based on the Equipment
being delivered and placed in service during the current calendar year specified in the Lease, and
agree that the Payment Schedule specified in the Lease will be modified if all or a portion of the
Equipment is not delivered or placed in service during the calendar year specified in the Lease. In
such event, Lessor will prepare an amendment to the Lease modifying the original Payment Schedule
specified therein to maintain the economic yield that Lessor had anticipated at the signing of the
Lease. Lessee agrees to promptly execute and deliver such amendment to the Lease. In the event a
portion, but not all, of the Equipment is delivered and placed in service during the calendar year
specified in the Lease, Lessee agrees to execute and deliver a Modified Delivery and Acceptance
Agreement as to the portion of the Equipment delivered and placed in service.
The Payment Amount on each Lease equals the Total Cost times the applicable Rental Factor (or
Factors where there is more than one Payment Amount in a Payment Schedule). The number of Payment
Amounts and their timing is the Payment Schedule. The Payment Schedule will remain the same
provided the Commencement Date of Lease (as defined in the Lease) is within 2 business days of the
Swap Rate Date. If the Commencement Date of Lease occurs after this time, the Rental Factor will be
adjusted for every basis point change in the Swap Rate from the date on the Lease to the
Commencement Date of Lease. Lessor may adjust a Lease’s Payment Amount if there is a difference
between the Swap Rate listed on the Lease and the half-term LIBOR Swap Rate as published by the
United States Federal Reserve Board on that Lease’s Commencement Date of Lease. For a 10 basis
point movement in the LIBOR swap rate, Lessor may adjust the Rental Factor(s) by the Rental Factor
Change Rate set forth on the Lease. Lessor may then multiply the adjusted Rental Factor(s) by the
Total Cost to arrive at the adjusted Payment Schedule.
4. FINANCE LEASE. Lessor will, subject to the terms of the applicable Lease and this Master Lease,
purchase the Equipment as set forth in the “Equipment Location and Description” section of the
Lease, and simultaneously lease such Equipment to Lessee. Lessor and Lessee agree that each Lease
incorporating by reference the terms of this Master Lease is a “finance lease” within the meaning
of Article 2A of the Uniform version of the Uniform Commercial Code (U.C.C.). Lessee acknowledges
receipt of a copy of the contract evidencing Lessor’s purchase of the Equipment.
5. SELECTION OF EQUIPMENT — NO WARRANTIES BY LESSOR AS TO MERCHANTABILITY OR FITNESS. LESSEE
ACKNOWLEDGES THAT IT HAS SELECTED THE TYPE, QUANTITY AND SUPPLIER OF THE EQUIPMENT THAT IT HAS
REQUESTED LESSOR TO PURCHASE FOR LEASING TO LESSEE. LESSEE AGREES THAT THE EQUIPMENT AND EACH PART
OR UNIT THEREOF IS OF A DESIGN, SIZE, QUALITY AND CAPACITY REQUIRED BY LESSEE AND IS SUITABLE FOR
ITS PURPOSES. LESSEE FURTHER AGREES THAT LESSOR HAS NOT MADE AND DOES NOT HEREBY MAKE ANY
REPRESENTATION, WARRANTY
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OR COVENANT, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE; AND
LESSOR DOES HEREBY SPECIFICALLY DISCLAIM ANY WARRANTY EXPRESS OR IMPLIED OF MERCHANTABILITY OR
FITNESS, OR WITH RESPECT TO THE CONDITION, QUALITY, DURABILITY, CAPABILITY OR SUITABILITY OF
EQUIPMENT OR AGAINST ANY PATENT OR LATENT DEFECTS THEREIN OR THE ABSENCE OF INFRINGEMENT UPON ANY
PATENTS, COPYRIGHTS, TRADEMARKS, LICENSES, OR OTHER INTELLECTUAL PROPERTY RIGHTS. LESSEE
SPECIFICALLY WAIVES ANY CLAIM AGAINST LESSOR FOR ANY LIABILITY, CLAIM, LOSS, DAMAGE, OR EXPENSE OF
ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY THE EQUIPMENT OR THE INADEQUACY THEREOF FOR ANY
PURPOSE OR FOR ANY DEFICIENCY OR DEFECT THEREIN, OR FOR ANY REPAIRS, SERVICING OR ADJUSTMENTS
THERETO, OR ANY LOSS OF BUSINESS, CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGE WHATSOEVER OR HOWSOEVER
CAUSED. LESSEE FURTHER AGREES TO ACCEPT DELIVERY OF THE EQUIPMENT AND THAT THE VALIDITY OF THIS
MASTER LEASE AND ANY RELATED LEASE SHALL NOT BE AFFECTED BY ANY DELAY IN SHIPMENT BY THE SUPPLIER.
NO DEFECT OF THE EQUIPMENT SHALL RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT OR THE PERFORMANCE OF
OTHER TERMS OF THIS MASTER LEASE AND ANY RELATED LEASE. LESSEE HEREBY AUTHORIZES LESSOR TO ADD TO
THE LEASE THE SERIAL NUMBER OF EACH ITEM OF EQUIPMENT DELIVERED, THE DATE OF SHIPMENT AND OTHER
MATERIAL INFORMATION. LESSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON IT AGAINST
LESSOR BY SECTIONS 508 THROUGH AND INCLUDING 522 OF ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE OR
COMPARABLE PROVISIONS OF APPLICABLE LAW.
6. LEASE DEPOSIT. Lessor acknowledges that Lessee has paid with the execution of the Lease the sum
specified under “Lease Deposit” in the Lease, to be held by Lessor as a lease deposit and not as an
advance rental payment. If Lessee, at the expiration of a Lease or any renewal or extension
thereof, shall not be in default under that Lease or this Master Lease or under any other lease or
contract in effect between the parties, and shall have paid to Lessor all amounts due to Lessor
specified in the Lease, and shall have returned to Lessor the Equipment in the condition provided
in Paragraph 10 hereof, or made such other disposition thereof as may be directed by Lessor, Lessor
shall thereupon refund to Lessee the lease deposit without interest. In the event, however, of any
default at any time in any of the terms, provisions and conditions hereof or any other lease or
contract between the parties, or should Lessee fail to return the Equipment in the condition and at
the time required under Paragraph 10, Lessor may, but shall not be obligated to, apply the lease
deposit to cure such default, in which event Lessee shall promptly restore the lease deposit to the
full amount specified in the Lease. Lessor shall also have the right and privilege at its
discretion to apply the lease deposit or any portion thereof to any other lease(s) and/or
contract(s) outstanding between Lessor and Lessee to cure a default in such lease(s) and/or
contract(s) or to apply to any deficiency arising out of such other Lease(s) and/or contract(s).
7. LOCATION AND RIGHT OF INSPECTION. The Equipment at all times shall be located at the address of
Lessee specified in the Lease or such other place as shall be mutually agreed upon between Lessor
and Lessee. Lessor shall at any and all times during business hours have the right to enter into
and upon the premises where the Equipment may be located for the purpose of inspecting the same or
observing its use. Lessee shall not move the Equipment from the location specified in the Lease,
except with the prior written consent of Lessor. Lessee shall promptly advise Lessor of any
circumstances which may in any manner affect any item of Equipment or in any manner affect Lessor’s
title thereto.
8. TITLE AND USE. Title to all of the Equipment shall at all times be solely in Lessor or its
assignee, and Lessee shall have no interest or claims thereto or therein except as provided in the
Lease and herein. Lessee shall, however, unless default shall occur as hereinafter provided, have
the right to possession of said Equipment and the quiet enjoyment thereof. Lessee shall at all
times use the Equipment in a careful and proper manner and shall comply with all laws, ordinances
and regulations in any manner relating to the possession, use or maintenance of the Equipment, and
shall if directed by Lessor affix to the Equipment in a prominent place and maintain thereon any
labels, plates or other identifying markings indicating that the Equipment is the property of
Lessor. Lessee will not sublet, mortgage, pledge, sell or otherwise encumber or dispose of the
Equipment or its interest therein. Lessee shall keep the Equipment free from any and all liens and
claims, and shall not do or permit anything whereby Lessor’s title or rights may be encumbered or
impaired. If Lessee has made a deposit to the Equipment supplier, Lessee agrees that upon refund of
those funds from Lessor that Lessee shall have no interest in the Equipment other than those
interests provided elsewhere herein and that title to the Equipment will pass directly from the
vendor to Lessor.
9. OPERATION OF EQUIPMENT. Lessee will use the Equipment only in the normal course of its business
and only for the purposes for which the Equipment was designed. Lessee assumes all risks and
liability for the Equipment and for the use, possession, operation, maintenance, storage and
condition thereof, and for injuries or death resulting to persons and damage resulting to property
arising from or incident to such use, operation, possession, maintenance, storage and condition,
whether such injuries, death or damage be to agents or employees of lessee or their property, or to
third parties or their property. Lessee will save and hold Lessor harmless from all losses,
damages, claims, penalties, liabilities and expenses, including attorney’s fees, of whatsoever
nature arising or incurred because of or incident to the use, possession, operation, maintenance,
storage and condition of the Equipment.
10. RETURN OF EQUIPMENT. Upon expiration and/or termination of each Lease, Lessee shall at its
expense, immediately return the Equipment to Lessor at such place as Lessor may designate in the
same condition and appearance as when received by Lessee (reasonable wear and tear from proper use
excepted) and in good working order for the original intended purpose of the Equipment. The
Equipment shall be de-installed, disassembled and crated by an authorized manufacturer’s
representative or such other service person as is satisfactory to Lessor. Until Lessee has fully
complied with the requirements in this section, Lessee’s rent payment obligation and all other
obligations under the Lease and this Master Lease shall continue from month to month
notwithstanding any expiration or termination of the lease term specified in the Lease.
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11. REPAIRS AND ALTERATIONS. Lessor shall not be obligated to service the Equipment or make any
repairs or replacements. Lessee shall not incur for Lessor’s account or liability any expense for
service, repairs, or replacements without Lessor’s prior written consent. Lesee shall maintain the
Equipment so as to meet or exceed the Equipment manufacturer’s recommended maintenance schedule.
Lessee shall also effect and bear the expense of all necessary repairs, maintenance, operation and
replacements required to be made to maintain the Equipment in good condition, normal wear and tear
excepted. Any addition, improvements and replacements shall become the property of Lessor and shall
be deemed to be a part of the leased Equipment.
12. INSURANCE. For each Lease, Lessee shall (a) keep the Equipment insured against all risks of
loss or damage from every cause whatsoever for not less than the full replacement value thereof, as
determined by Lessor; (b) maintain public liability and property insurance, in an amount determined
by Lessor, but in which the limits of public liability shall not be less than Two Million Dollars
($2,000,000) per person and Two Million Dollars ($2,000,000) per accident and in which the property
damage liability shall not be less than Two Million Dollars ($2,000,000), unless other limits are
agreed to in the Lease, protecting and indemnifying Lessor against any injury to person or any
damage to property arising by reason of the use, operation or maintenance of the Equipment; and (c)
if requested by Lessor, maintain such other insurance, including products liability insurance in
such an amount as shall be required by Lessor, and maintain in full force and effect at all times
worker’s compensation insurance which shall cover any and all claims for injury to any worker,
employee, or agent of Lessee arising out of use, operation or maintenance of the Equipment. All
such insurance shall be in form and amount and with companies approved by Lessor, and shall name
Lessor and any assignee as lender’s loss payee and additional insured. Lessee shall pay the
premiums therefore and deliver the policies, or evidence thereof, to Lessor. Each insurer shall
agree, by endorsement upon the policy or policies issued by it or by independent instrument
furnished to Lessor, that it will give Lessor thirty (30) days’ written notice before the policy in
question shall be altered or cancelled. As to Lessor’s interest in such insurance, no act or
omission of Lessee or any of its officers, agents, employees or representatives shall affect the
obligations of the insurer to pay the full amount of any loss. The proceeds of insurance shall, at
the option of Lessor, be applied (a) toward the replacement, restoration or repair of the Lease’s
Equipment, or (b) toward payment of the obligations of Lessee under such Lease. 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 or returned or unearned premiums under
any insurance policy. In case of failure of Lessee to procure or maintain insurance as herein
specified, Lessor shall have the right, but shall not be obligated, to effect such insurance, and
in such event, the cost thereof shall be repayable to Lessor with the next installment of rent due
under the Lease, and failure to repay the same shall carry with it the same consequence, including
the late charge and interest provided in Paragraph 20 hereof.
13. TAXES. Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances and
shall promptly pay or reimburse Lessor for all license fees, registration fees, assessments,
charges and taxes (municipal, state and federal), including personal property taxes and any sales,
use, or other transactional tax which may now or hereafter be imposed in connection with the Master
Lease, any related Lease, possession or use of the Equipment, and including any penalties,
interest, or delinquency charges accruing by reason of Lessee’s nonpayment. In addition, Lessee
shall pay all expenses including legal fees where, with Lessee’s consent, the validity or amount of
any tax or assessment shall be challenged.
14. PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR. In the event Lessee shall fail to promptly
perform any of its obligations under any provision of the Lease and this Master Lease, Lessor may,
at its option, perform the same for the account of Lessee without thereby waiving such default, and
any amount paid or expense (including reasonable attorneys’ fees), penalty or other liability
incurred by Lessor in such performance, together with interest at the rate of eighteen percent
(18%) per annum thereon until paid by Lessee to Lessor, shall be payable by Lessee upon demand as
additional rent for the Equipment.
15. LOSS AND DAMAGE. Lessee shall bear the entire risk of loss, theft, damage or destruction of the
Equipment from any cause whatsoever; and no loss, theft, damage or destruction of the Equipment
shall relieve Lessee of the obligation to pay rent or of any other obligation under this Master
Lease. In the event of damage to any item of Equipment, Lessee shall immediately place the same in
good repair. If Lessor determines that any item of Equipment is lost, stolen, destroyed or damaged
beyond repair, Lessee, at the option of Lessor, will: (a) replace the same with like equipment in
good repair, or (b) pay Lessor in cash all of the following: (i) all amounts then owed by Lessee to
Lessor under the Lease, (ii) an amount equal to thirty percent (30%) of the actual cost of said
item, (iii) the unpaid balance of the total rent for the initial term of the Lease attributable to
said item, less any proceeds of insurance thereon received by Lessor, and (iv) any license fees,
registration fees, assessments, charges and taxes (municipal, state and federal), including
personal property taxes and any sales, use, or other transactional tax, and including any
penalties, interest, or delinquency charges, that have accrued, will be assessed, or are otherwise
due and owing in connection with the Lease, possession or use of the Equipment. Upon Lessor’s
receipt of such payment, Lessee shall be entitled to whatever interest Lessor may have in said
item, in its then condition and location, without warranties, express or implied. The parties
hereto agree that the sum of the amount numbered (ii) and (iii) will equal the fair value of said
item on the date of such loss, theft, damage or destruction.
16. DEFAULT. An event of default shall occur if: (i) Lessee fails to pay any rent or other amount
provided in the Lease within ten (10) days after the same is due and payable, or (ii) Lessee fails
to perform any other provision hereof within ten (10) days after notice thereof from Lessor, or
(iii) Lessee dies or ceases to exist, or (iv) Lessee is adjudicated a bankrupt, suspends business,
becomes insolvent, makes an assignment for the benefit of creditors or enters into or petitions for
a creditor’s arrangement, or (v) an attachment be levied or a lien be filed against any of Lessee’s
property or against equipment or a receiver be appointed for any of Lessee’s property, or (vi)
Lessee fails to use the Equipment strictly in compliance with all municipal, state and federal
regulatory agency requirements, or (vii) any guarantor of the Lease and/or this Master Lease
defaults on any obligation to Lessor or any of the above-listed events of default occur with
respect to any guarantor or any such guarantor dies or ceases to exist or files or has filed
against it a petition under bankruptcy law, or (viii) Lessee attempts to remove, sell, transfer,
encumber or sublet the Equipment or any item thereof, (ix) any default or event of default under
any note, borrowing or agreement to which Lessee is a party, now existing or hereafter entered
into, including those between Lessee and M&I Xxxxxxxx and Ilsley Bank or its subsidiaries; (x) any
representation or statement made by
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Lessee in connection with this Master Lease and any Lease is false or misleading in any material
respect; or (xi) Lessee breaches any warranty contained herein, including, but not limited to, the
warranty ser forth in Section 27. Upon the occurrence of an event of default, Lessor, at its
option, may: (a) declare all sums due and to become due under the Lease immediately due and
payable; (b) xxx for and recover all rents and other amounts then accrued, due and owing, or
thereafter accruing under the Lease, including Lessor’s estimated residual value of the Equipment
if such Equipment has not been returned to Lessor, and including all taxes and other charges
described in Paragraph 13 of this Master Lease; (c) take possession of the Equipment and for the
purpose thereof, enter the premises on which the Equipment is located without notice, court order
or other process of law (damages occasioned by such taking are expressly waived by Lessee), and
thereupon Lessee’s right to possession and use of the Equipment shall terminate, but Lessee shall
be and remain liable for the total rent for the term as set forth in the Lease; (d) sell or lease
any or all items of Equipment at public or private sale for cash or on credit or, if leased, to
such persons and upon such terms as Lessor shall elect, and recover from Lessee all costs of taking
possession, storing, repairing and selling or leasing the Equipment, together with an amount equal
to ten percent (10%) of the actual cost to Lessor of the items of Equipment sold or leased and the
unpaid balance of the total rent for the initial term of this Master Lease specified in the Lease
and attributable to the items of Equipment sold or leased less the net proceeds of such sale or the
total rent under the Lease; (e) terminate the Lease as to any or all items of Equipment specified
therein; (f) terminate any other Lease as to any or all items of Equipment specified therein and
recover from Lessee as to each item subject to such termination the value at the time of such
termination of the excess, if any, of the amount of rent reserved in the Lease and/or any other
Lease for said item(s) for the balance of the term specified in the Lease or such other Lease(s)
hereof over the then reasonable rental value of said item(s) for the same period(s) of time. No
right or remedy conferred upon or reserved to Lessor by this Master Lease shall be exclusive of any
other right or remedy herein or by law provided; all rights and remedies conferred upon Lessor by
this Master Lease or by law shall be cumulative and in addition to every other right or remedy
available to Lessor. In the event of any default on the part of Lessee, Lessee shall pay in
addition to any late payment charges that maybe due under Paragraph 20 hereof all costs, expenses
and disbursements incurred by Lessor in exercising its rights or remedies hereunder or enforcing
any of the provisions or terms hereof, including attorneys’ fees and court costs. In the event
Lessor shall elect to xxx for and recover all rents and other amounts then due or thereafter
accruing under the Lease or any extension hereof, such accelerated rental shall be discounted at an
annual rate of two percent (2%) or such other discount rate as specified in the Lease.
17. NO ASSIGNMENT BY LESSEE. Without the prior written consent of Lessor, Lessee shall not (a)
assign, transfer, pledge or hypothecate the Lease, this Master Lease, the Equipment or any part
thereof, or any interest therein, or (b) sublet or rent the Equipment or any part thereof or permit
the Equipment or any part thereof to be used by anyone other than Lessee or Lessee’s employees.
Consent to any of the foregoing prohibited acts applies only in the given instance and is not a
consent to any subsequent like act by Lessee or any other person. The conditions hereof shall bind
any permitted successors and assigns of Lessee.
18. LESSOR’S ASSIGNMENT. Lessee acknowledges and agrees that Lessor may assign or sell all or part
of the Lease and this Master Lease to a bank, other financial institution, or any other person, and
that such assignee or buyer shall be entitled to all of the benefits of the Lease and this Master
Lease including all credit and financial information that Lessee shall have theretofore or
thereafter submitted to Lessor. In connection therewith, Lessee agrees: (a) to recognize any such
assignment upon receipt of written notice thereof; (b) to accept the directions, demands or
consents of such assignee in place of those of Lessor; (c) to pay all rent under the Lease as
directed by such assignee; (d) not to terminate the Lease or the Master Lease; and (e) not to set
up against such assignee any defenses, setoffs, or counterclaims which it may have against Lessor
in regard to the payment of rent hereunder.
19. PERSONAL PROPERTY. The Equipment is, and shall at all times be and remain, personal property
notwithstanding that the Equipment or any part thereof may now be, or hereafter become, in any
manner affixed or attached to, or imbedded in, or permanently resting upon, real property or any
building thereon, or attached in any manner to what is permanent by means of cement, plaster,
nails, bolts, screws or otherwise.
20. LATE PAYMENT. Should Lessee fail to pay any part of the rent or any other sum required to be
paid by Lessee to Lessor under the Lease and this Master Lease within 10 days after the due date
thereof, Lessee shall pay to Lessor interest on such delinquent payment from the due date thereof
until paid at the rate of 18% per annum, which Lessee acknowledges is a reasonable charge to cover
Lessor’s expenses therewith.
21. OFFSET. Lessee hereby waives any and all existing and future claims and offsets against any
rent or other payments due under the Lease and this Master Lease, and agrees to promptly pay the
rent and other amounts due under the Lease and this Master Lease regardless of any offset or claim
which maybe asserted by Lessee or on its behalf. Lessee further acknowledges that neither the
manufacturer nor vendor of the leased Equipment, including their agents and employees, were or are
the agent or under the supervision of the Lessor, nor was or is the Lessor in any manner the agent
of the manufacturer or vendor.
22. NON-WAIVER. Time is of the essence. Lessor’s failure at any time to require strict performance
by Lessee of any of the provisions of the Lease and this Master Lease shall not waive or diminish
Lessor’s right thereafter to demand strict compliance therewith or with any other provision of the
Lease and this Master Lease. Waiver of any default shall not waive any other default. No remedy of
Lessor hereunder shall be exclusive of any other remedy herein or by law provided, but each shall
be cumulative and in addition to every other remedy. No covenant or condition of this Master Lease
may be waived except by the written consent of Lessor.
23. NO ABATEMENT IN RENT. Each Lease is irrevocable for the full term hereof and until the
aggregate rentals provided for in the Lease have been paid by Lessee. Rent shall not xxxxx during
the term specified in the Lease because Lessee’s right to possession of the Equipment has
terminated, because the Equipment has been repossessed, or for any other reason.
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24. NOTICES. Service of all notices under this Master Lease shall be sufficient if given personally
or mailed to the party involved at its respective address herein set forth or at such address
specified in the Lease, or at such address as may be provided in writing from time to time. Any
notice mailed to such address shall be effective when deposited in the United States mail, duly
addressed and with postage prepaid.
25. OTHER DOCUMENTS. Should Lessee be domiciled or reside in a state which has adopted the Uniform
Commercial Code (“Code”) or if the Equipment shall be located in such state, and if at any time
this transaction shall be construed to be a security transaction, the Lease and this Master Lease
shall be deemed to be the security agreement, Lessor shall be the secured party herein and Lessee
the debtor. Lessee hereby authorizes Lessor to file financing Statements describing the Equipment,
and amendments to such financing statements, under the Code in all places where necessary to
perfect Lessor’s interest in the Equipment; provided, however, that nothing herein, nor the
execution of any financing statement, shall constitute an acknowledgment that this transaction is
subject to the Code.
26. SUCCESSORS. The Lease and this Master Lease shall be binding upon and inure to the benefit of
the heirs, administrators, successors and assigns of the parties hereto.
27. STATEMENTS. Lessor may require at any reasonable time, and Lessee agrees to promptly furnish,
statements setting forth the financial condition and operations of Lessee. Lessee warrants that all
financial statements, including but not limited to interim statements, delivered to Lessor have
been prepared in accordance with generally accepted accounting principles, are accurate
representations of the matters contained therein and that there have been no material adverse
changes in Lessee’s financial condition since the date of the applicable financial statement.
28. VEHICLES. If any item of Equipment is a motor vehicle, Lessee shall (a) permit only licensed
drivers to operate same who shall be employees of Lessee or any permitted sublessee; (b) use the
vehicle for its own needs and not for hire; (c) do nothing which shall increase or suspend
insurance coverage thereon; and (d) assume sole responsibility for the payment of wages,
unemployment and worker’s compensation insurance and social security requirements of such
employees.
29. DEFAULT — WHERE ADDITIONAL MASTER LEASES OR LEASES. If Lessee fails to pay any rent or other
amount due under any other lease, contract or Lease, whether heretofore or hereafter entered into,
within ten (10) days after the same is due and payable, or if any other event of default occurs
under any other lease, contract or Lease, it shall constitute a default under all leases, contracts
or Leases including the Lease and this Lease. If the Lease, this Master Lease or any other lease,
contract or Lease heretofore or hereafter entered into between Lessor and Lessee shall be
determined to be a security transaction, or if Lessee shall default resulting in liquidation,
resale or re-leasing of the leased equipment, then and in such event Lessor shall be deemed to have
as of the date hereof and is granted a security interest in all of the leased equipment described
in all Leases, contracts and/or leases then outstanding between Lessor and Lessee, and the proceeds
from any such liquidation, resale or releasing shall be applied by Lessor to the aggregate total of
obligations due and to become due to it plus its charges, expenses and reasonable attorneys’ fees.
30. CHANGE IN OWNERSHIP. The entire indebtedness under the Lease and this Master Lease shall become
immediately due and payable in full at the option of Lessor, without notice, upon a transfer, sale
or conveyance of more than 49% of the common or other voting stock of or other ownership interest
in Lessee or any Guarantor.
31. COUNTERPARTS AND ELECTRONIC SIGNATURE AND STORAGE. The Lease and this Master Lease and all
documents related thereto each may be executed in any number of counterparts and by facsimile,
electronic or digital signature, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument. Lessor and Lessee acknowledge and agree that:
(a) the Lease and this Master Lease and all documents and information related thereto may be
reproduced and stored in any electronic format, and the originals so reproduced destroyed; and (b)
any such electronic copy shall be deemed an original, shall be admissible in any court or other
proceeding, and shall be enforceable against the parties thereto, whether or not the original is in
existence and whether or not such reproduction was made or preserved by Lessor in the regular
course of business.
32. MISCELLANEOUS.
a. A provision of the Lease and/or this Master Lease which is prohibited or unenforceable in any
jurisdiction shall as to such jurisdiction be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
b. The Lease and this Master Lease shall be governed by and construed in accordance with the laws
of the State of Wisconsin. In the event of any ambiguity or conflict as between the terms of this
Master Lease or the Lease, the terms of the Lease shall control.
c. The Lessor may enforce any claim arising out of any Lease and this Master Lease in any state or
federal court having subject matter jurisdiction for or located in Milwaukee County, Wisconsin. For
the purpose of any action or proceeding instituted with respect to any such claim, the Lessee
hereby irrevocably submits to the jurisdiction of such courts. The Lessee irrevocably consents to
the service of process out of said courts by mailing a copy thereof, by registered mail, postage
prepaid, to the Lessee and agrees that such service, to the fullest extent permitted by law (a)
shall be deemed in every respect effective service of process upon it in any such suit, action or
proceeding, and (b) shall be taken and held to be valid personal service upon personal delivery to
it. Nothing herein contained shall affect the right of the Lessor to serve process in any other
manner permitted by law or preclude the Lessor from bringing an action or proceeding in respect
hereof in any other country, state or place having jurisdiction over such action. The Lessee hereby
irrevocably waives, to the fullest extent permitted by law, any objection which it may now or
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hereafter have to the laying of the venue of any such suit, action or proceeding brought in any
state or federal court located in or for Milwaukee County, Wisconsin and any claim that any such
suit, action or proceeding brought in such a court has been brought in an inconvenient forum.
d. LESSEE AND LESSOR UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTIONS BASED UPON OR ARISING OUT OF ANY LEASE AND THIS MASTER LEASE, ANY OF THE RELATED DOCUMENTS,
ANY DEALINGS BETWEEN LESSEE AND LESSOR RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY
RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN LESSEE AND LESSOR.
THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL EMCOMPANSSING OF ANY AND ALL DISPUTES THAT MAY BY
FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO
THIS MASTER LEASE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS
TRANSACTION OR ANY RELATED TRANSACTION. ANY LEASE AND THIS MASTER LEASE MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
e. This Master Lease and any Lease and Addendums thereto constitute the entire agreement of the
parties with respect to the subject matter hereof. NO VARIATION OR MODIFICATION OF THIS AGREEMENT
OR ANY WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS SHALL BE VALID UNLESS IN WRITING AND SIGNED BY
AN AUTHORIZED REPRESENTATIVE OF THE PARTIES HERETO.
This contract is subject to all terms and conditions contained in the Master Lease of Personal
Property document which Lessee acknowledges having read.
| This Lease shall not be binding upon Lessor until accepted by Lessor at its office in Milwaukee, Wisconsin. |
THIS LEASE IS NON-CANCELABLE AS PROVIDED IN SECTION 2 HEREOF | |
| Accepted: June 30, 2006 | Date of Lease: June 28, 2006 | |
| Lessor: M&I Equipment Finance Company | Lessee: Xxxxxxx Electronics, Inc. | |
| By: /s/ (illegible), VP | By: /s/ Xxxxx X. Xxxxxxxx, Controller | |
| Authorized Signature and Title | Authorized Signature and Title | |
| Witness: /s/ Xxxxx X. Xxxxxxx, Secretary | ||
| Secretary or Other Corporation Officer or | ||
| Witness |
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