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Exhibit 10.6
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT, dated as of March 13, 1997 ("AGREEMENT"),
between, GENERAL ELECTRIC CAPITAL CORPORATION, with an office at 0000 Xxxx 00xx
Xxxxxx, Xxx Xxxxx, Xxxxxxxx 00000 (hereinafter called, together with its
successors and assigns, if any, "LESSOR"), and OUTLOOK GROUP CORP., a
corporation organized and existing under the laws of the State of Wisconsin
with its mailing address and chief place of business at 0000 Xxxxxxxx Xxxxx,
Xxxxxx, XX 00000-0000 (hereinafter called "LESSEE").
WITNESSETH:
I. LEASING:
(a) Subject to the terms and conditions set forth below, Lessor agrees to lease
to Lessee, and Lessee agrees to lease from Lessor, the equipment ("EQUIPMENT")
described in Annex A to any equipment schedule hereto ("SCHEDULE"). Terms
defined in a Schedule and not otherwise defined herein shall have the meanings
ascribed to them in such Schedule. (b) The obligation of Lessor to purchase
Equipment from the manufacturer or seller thereof ("SELLER") and to lease the
same to Lessee under any Schedule shall be subject to receipt by Lessor, prior
to the Lease Commencement Date (with respect to such Equipment), of each of the
following documents in form and substance satisfactory to Lessor: (i) a
Schedule relating to the Equipment then to be leased hereunder, (ii) paid in
full invoice or other evidence of ownership of the Equipment, (iii) evidence of
insurance which complies with the requirements of Section IX, and (iv) such
other documents as Lessor may reasonably request. As a further condition to
such obligations of Lessor, Lessee shall, upon delivery of such Equipment (but
not later than the Last Delivery Date specified in the applicable Schedule)
execute and deliver to Lessor a Certificate of Acceptance (in the form of Annex
C to the applicable Schedule) covering such Equipment. Lessor hereby appoints
Lessee as its agent for inspection and acceptance of the Equipment from the
Supplier. Upon execution by Lessee of any Certificate of Acceptance, the
Equipment described thereon shall
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be deemed to have been delivered to, and irrevocably accepted by, Lessee for
lease hereunder.
II. TERM, RENT AND PAYMENT:
(a) The rent payable hereunder and Lessee's right to use the Equipment shall
commence on the date of execution by Lessee of the Certificate of Acceptance
for such Equipment ("LEASE COMMENCEMENT DATE"). The term of this Agreement
shall be the period specified in the applicable Schedule. If any term is
extended, the word "term" shall be deemed to refer to all extended terms, and
all provisions of this Agreement shall apply during any extended terms, except
as may be otherwise specifically provided in writing. (b) Rent shall be paid
to Lessor at its address stated on the applicable Schedule, except as otherwise
directed in writing by Lessor. Payments of rent shall be in the amount set
forth in, and due in accordance with, the provisions of the applicable
Schedule. If one or more Advance Rentals (as defined on the applicable
Schedule) are payable, such Advance Rental shall be (i) set forth on the
applicable Schedule, (ii) due upon acceptance by Lessor of such Schedule, and
(iii) when received by Lessor, applied to the first rent payment and the
balance, if any, to the final rental payment(s) under such Schedule. In no
event shall any Advance Rental or any other rent payments be refunded to
Lessee. If rent is not paid within five days of its due date, Lessee agrees to
pay a late charge of five cents ($0.05) per dollar on, and in addition to, the
amount of such rent but not exceeding the lawful maximum, if any.
III. TAXES:
Lessee shall have no liability for taxes imposed by the United States of
America or any State or political subdivision thereof which are on or measured
by the net income of Lessor. Lessee shall report (to the extent that it is
legally permissible) and pay promptly all other taxes, fees and assessments
due, imposed, assessed or levied against any Equipment (or the purchase,
ownership, delivery, leasing, possession, use or operation thereof), this
Agreement (or any rentals or receipts hereunder), any Schedule, Lessor or
Lessee by any foreign, federal, state or local government or taxing authority
during or related to the term of this Agreement, including, without limitation,
all license and registration fees, and all sales, use, personal
property, excise, gross receipts, franchise, stamp or other
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taxes, imposts, duties and charges, together with any penalties, fines or
interest thereon (all hereinafter called "TAXES"). Lessee shall (i)
reimburse Lessor upon receipt of written request for reimbursement for any
Taxes charged to or assessed against Lessor, (ii) on request of Lessor, submit
to Lessor written evidence of Lessee's payment of Taxes, and (iii) send a copy
thereof to Lessor.
IV. REPORTS:
(a) Lessee will notify Lessor in writing, within ten days after any tax or
other lien shall attach to any Equipment, of the full particulars thereof and
of the location of such Equipment on the date of such notification. (b) Lessee
will within 90 days of the close of each fiscal year of Lessee, deliver to
Lessor, Lessee's balance sheet and profit and loss statement prepared in
accordance with generally accepted accounting principles consistently applied
together with a letter certifying that no default or event which, with the
giving of notice or lapse of time or both, would become Default has occurred,
certified by a recognized firm of certified public accountants. Upon request
Lessee will deliver to Lessor quarterly, within 45 days of the close of each
fiscal quarter of Lessee, in reasonable detail, copies of Lessee's quarterly
financial report certified by the chief financial officer of Lessee. (c)
Lessee will permit Lessor to inspect any Equipment during normal business
hours. (d) Lessee will keep the Equipment at the Equipment Location (specified
in the applicable Schedule) and will promptly notify Lessor of any relocation
of Equipment. Upon the written request of Lessor, Lessee will notify Lessor
forthwith in writing of the location of any Equipment as of the date of such
notification. (e) Lessee will promptly and fully report to Lessor in writing
if any Equipment is lost or damaged (where the estimated repair costs would
exceed 10% of its then fair market value), or is otherwise involved in an
accident causing personal injury or property damage. (f) Within 10 business
days after any request by Lessor, Lessee will furnish a certificate of an
authorized officer of Lessee stating that he has reviewed the activities of
Lessee and that, to the best of his knowledge, there exists no default (as
described in Section XI) or event which with notice or lapse of time (or both)
would become such a default.
V. DELIVERY, USE AND OPERATION:
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(a) All Equipment shall be shipped directly from the Seller to Lessee. (b)
Lessee agrees that the Equipment will be used by Lessee solely in the conduct
of its business and in a manner complying with all applicable federal, state,
and local laws and regulations. (c) LESSEE SHALL NOT ASSIGN, MORTGAGE, SUBLET
OR HYPOTHECATE ANY EQUIPMENT, OR THE INTEREST OF LESSEE HEREUNDER, NOR SHALL
LESSEE REMOVE ANY EQUIPMENT FROM THE CONTINENTAL UNITED STATES, WITHOUT THE
PRIOR WRITTEN CONSENT OF THE LESSOR. (d) Lessee will keep the Equipment free
and clear of all liens and encumbrances other than those which are granted in
favor of or result from acts of Lessor.
VI. SERVICE:
(a) Lessee will, at its sole expense, maintain each unit of Equipment in good
operating order, repair, condition and appearance in accordance with
manufacturer's recommendations, normal wear and tear excepted. Lessee shall,
if at any time requested by Lessor, affix in a prominent position on each unit
of Equipment plates, tags or other identifying labels showing ownership thereof
by Lessee and Lessor's security interest therein. (b) Lessee will not, without
the prior consent of Lessor, affix or install any accessory, equipment or
device on any Equipment if such addition will impair the originally intended
function or use of such Equipment. All additions, repairs, parts, supplies,
accessories, equipment, and devices furnished, attached or affixed to any
Equipment which are not readily removable shall be made only in compliance with
applicable law; and shall become subject to the lien of Lessor. Lessee will
not, without the prior written consent of Lessor and subject to such conditions
as Lessor may impose for its protection, affix or install any Equipment to or
in any other personal or real property. (c) Any alterations or modifications
to the Equipment that may, at any time during the term of this Agreement, be
required to comply with any applicable law, rule or regulation shall be made at
the expense of Lessee.
VII. STIPULATED LOSS VALUE:
Lessee shall promptly and fully notify Lessor in writing if any unit of
Equipment shall be or become worn out, lost, stolen, destroyed, irreparably
damaged in the reasonable determination of Lessee, or permanently rendered
unfit for use from any cause whatsoever (such occurrences being hereinafter
called "CASUALTY OCCURRENCES"). On the rental payment date next succeeding
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a Casualty Occurrence (the "PAYMENT DATE"), Lessee shall pay Lessor the sum of
(x) the Stipulated Loss Value of such unit calculated as of the rental payment
date next preceding such Casualty Occurrence ("CALCULATION DATE"); and
(y) all rental and other amounts which are due hereunder as of the Payment
Date. Upon payment of all sums due hereunder, the term of this Agreement as to
such unit shall terminate and (except in the case of the loss, theft or
complete destruction of such unit) Lessor shall be entitled to recover
possession of such unit.
VIII. LOSS OR DAMAGE:
Lessee hereby assumes and shall bear the entire risk of any loss, theft, damage
to, or destruction of, any unit of Equipment from any cause whatsoever from the
time the Equipment is shipped to Lessee.
IX. INSURANCE:
Lessee agrees, at its own expense, to keep all Equipment insured for such
amounts and against such hazards as Lessor may require, including, but not
limited to, insurance for damage to or loss of such Equipment and liability
coverage for personal injuries, death or property damage, with Lessor named as
additional insured and with a loss payable clause in favor of Lessor, as its
interest may appear, irrespective of any breach of warranty or other act or
omission of Lessee. The insurance shall provide (i) liability coverage in an
amount equal to at least ONE MILLION U.S. DOLLARS ($1,000,000.00) total
liability per occurrence, and (ii) casualty/property damage coverage in an
amount equal to the higher of the Stipulated Loss value or the full replacement
cost of the Equipment; or at such other amounts as may be required by Lessor.
All such policies shall be with companies, and on terms, satisfactory to
Lessor. Lessee agrees to deliver to Lessor evidence of insurance satisfactory
to Lessor. No insurance shall be subject to any co-insurance clause. Lessee
hereby appoints Lessor as Lessee's attorney-in-fact to make proof of loss and
claim for insurance, and to make adjustments with insurers and to receive
payment of and execute or endorse all documents, checks or drafts in connection
with payments made as a result of such insurance policies. Any expense of
Lessor in adjusting or collecting insurance shall be borne by Lessee. Lessee
will not make adjustments with insurers except (i) with respect to claims for
damage to any unit of Equipment where the repair costs do not exceed ten
percent (10%) of such unit's fair market value, or
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(ii) with Lessor's written consent. Said policies shall provide that the
insurance may not be altered or canceled by the insurer until after thirty
(30) days written notice to Lessor. Lessor may, at its option, apply proceeds
of insurance, in whole or in part, to (i) repair or replace Equipment or any
portion thereof, or (ii) satisfy any obligation of Lessee to Lessor hereunder.
X. RETURN OF EQUIPMENT:
(a) Upon any expiration or termination of this Agreement or any Schedule,
Lessee shall promptly, at its own cost and expense: (i) perform any testing and
repairs required to place the affected units of Equipment in the same condition
and appearance as when received by Lessee (reasonable wear and tear excepted)
and in good working order for their originally intended purpose; (ii) if
deinstallation, disassembly or crating is required, cause such units to be
deinstalled, disassembled and crated by an authorized manufacturer's
representative or such other service person as is satisfactory to Lessor; and
(iii) return such units to a location within the continental United States as
Lessor shall direct. (b) Until Lessee has fully complied with the requirements
of Section X(a) above, Lessee's rent payment obligation and all other
obligations under this Agreement shall continue from month to month
notwithstanding any expiration or termination of the lease term. Lessor may
terminate such continued lease hold interest upon ten (10) days notice to
Lessee.
XI. DEFAULT:
(a) Lessor may in writing declare this Agreement in default if: Lessee breaches
its obligation to pay rent or any other sum when due and fails to cure the
breach within ten (10) days; Lessee breaches any of its insurance obligations
under Section IX; Lessee breaches any of its other obligations to Lessor
hereunder or under any instrument, document or agreement between Lessor and
Lessee and fails to cure that breach within thirty (30) days after written
notice thereof; any representation or warranty made by Lessee in connection
with this Agreement shall be false or misleading in any material respect;
Lessee becomes insolvent or ceases to do business as a going concern; any
Equipment is illegally used; or a petition is filed by or against Lessee or
any guarantor of Lessee's obligations to Lessor hereunder under any bankruptcy
or insolvency laws; or Lessee shall be in default under that certain Loan and
Security Agreement dated as of November 5, 1996 with Bank America Business
Credit, Inc., as such
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agreement may be amended, restated or refinanced or any other material
obligation for borrowed money, for the deferred purchase price of property or
any lease agreement. Such declaration shall apply to all Schedules except as
specifically excepted by Lessor. (b) After default, at the request of Lessor,
Lessee shall comply with the provisions of Section X(a). Lessee hereby
authorizes Lessor to enter, with or without legal process, any premises where
any Equipment is believed to be and take possession thereof. Lessee shall,
without further demand, forthwith pay to Lessor (i) as liquidated damages for
loss of a bargain and not as a penalty, the Stipulated Loss Value of the
Equipment (calculated as of the rental next preceding the declaration of
default), and (ii) all rentals and other sums then due hereunder. Lessor may,
but shall not be required to, sell Equipment at private or public sale, in bulk
or in parcels, with or without notice, and without having the Equipment present
at the place of sale; or Lessor may, but shall not be required to, lease,
otherwise dispose of or keep idle all or part of the Equipment; and Lessor may
use Lessee's premises for any or all of the foregoing without liability for
rent, costs, damages or otherwise. The proceeds of sale, lease or other
disposition, if any, shall be applied in the following order of priorities: (1)
to pay all of Lessor's costs, charges and expenses incurred in taking,
removing, holding, repairing and selling, leasing or otherwise disposing of
Equipment; then, (2) to the extent not previously paid by Lessee, to pay Lessor
all sums due from Lessee hereunder; then (3) to reimburse to Lessee any sums
previously paid by Lessee as liquidated damages; and (4) any surplus shall be
retained by Lessor. Lessee shall pay any deficiency in (1) and (2) forthwith.
In addition to the foregoing rights, Lessor may proceed against any guarantor
pursuant to any guaranty of Lessee's obligations hereunder. (c) The foregoing
remedies are cumulative, and any or all thereof may be exercised in lieu of or
in addition to each other or any remedies at law, in equity, or under statute.
Lessee waives notice of sale or other disposition (and the time and place
thereof), and the manner and place of any advertising. Lessee shall pay
Lessor's actual attorney's fees incurred in connection with the enforcement,
assertion, defense or preservation of Lessor's rights and remedies hereunder,
or if prohibited by law, such lesser sum as may be permitted. Waiver of any
default shall not be a waiver of any other or subsequent default. (d) Any
default under the terms of this or any other agreement between
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Lessor and Lessee may be declared by Lessor a default under this and any such
other agreement.
XII. AGREEMENT:
(a) Lessor may, without the consent of Lessee, assign this Agreement or any
Schedule, or the right to enter into any Schedule. Lessee agrees that it will
pay all Rent and other amounts payable under each Schedule to the Lessor named
therein, provided, however, if Lessee receives written notice of any assignment
from Lessor, Lessee will pay all Rent and other amounts payable under any
assigned Schedule to such assignee (each being herein referred to as an
'Assignee' and collectively, as the 'Assignees') or as instructed by Lessor.
Each Schedule, incorporating by reference the terms and conditions of this
Agreement, constitutes a separate instrument of lease, and the Lessor named
therein or its Assignee shall have all rights as 'Lessor' thereunder separately
exercisable by such named Lessor or Assignee as the case may be, exclusively
and independently of Lessor or any Assignee with respect to other Schedules
executed pursuant hereto. Lessee agrees to confirm in writing receipt of a
notice of assignment as reasonably may be requested by such Assignee. Lessee
hereby waives and agrees not to assert against any such Assignee any defense,
set-off, recoupment claim or counterclaim which Lessee has or may at any time
have against Lessor or any other person for any reason whatsoever.
(b) This Agreement, the Schedules related instruments and documents and/or the
Equipment may be conveyed to, in whole or in part, and may be used as security
for financing obtained from, one or more Assignees without the consent of
Lessee (the 'Syndication). Lessee agrees to cooperate with Lessor in
connection with the Syndication, including the preparation of any offering
materials and the preparation of any relevant management of Lessee and will
certify as true, correct and complete any description of Lessee and its affairs
contained in materials based upon information provided by Lessee; and the
execution and delivery of such other documents, instruments, notices, opinions,
certificates and acknowledgments as reasonably may be required by Lessor or
such Assignee; provided, however in no event shall Lessee be required to
consent to any change that would adversely affect any of the economic terms of
the transactions contemplated herein.
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(c) Subject always to the foregoing, this Agreement inures to the benefit of
and is binding upon, the successors and assigns of the parties hereto and of
the Assignees."
XXXX.XXX AGREEMENT; NO SET-OFF, ETC:
This Agreement is a net lease. Lessee's obligation to pay rent and other
amounts due hereunder shall be absolute and unconditional. Lessee shall not be
entitled to any abatement or reductions of, or set-offs against, said rent or
other amounts, including, without limitation, those arising or allegedly
arising out of claims (present or future, alleged or actual, and including
claims arising out of strict tort or negligence of Lessor) of Lessee against
Lessor under this Agreement or otherwise. Nor shall this Agreement terminate
or the obligations of Lessee be affected by reason of any defect in or damage
to, or loss of possession, use or destruction of, any Equipment from whatsoever
cause. It is the intention of the parties that rents and other amounts due
hereunder shall continue to be payable in all events in the manner and at the
times set forth herein unless the obligation to do so shall have been
terminated pursuant to the express terms hereof.
XIV. INDEMNIFICATION: (a) Lessee hereby agrees to indemnify, save and keep
harmless Lessor, its agents, employees, successors and assigns from and against
any and all losses, damages, penalties, injuries, claims, actions and suits,
including legal expenses, of whatsoever kind and nature, in contract or tort,
whether caused by the active or passive negligence of Lessor or otherwise, and
including, but not limited to, Lessor's strict liability in tort, arising out
of (i) the selection, manufacture, purchase, acceptance or rejection of
Equipment, the ownership of Equipment during the term of this Agreement, and
the delivery, lease, possession, maintenance, uses, condition, return or
operation of Equipment (including, without limitation, latent and other
defects, whether or not discoverable by Lessor or Lessee and any claim for
patent, trademark or copyright infringement or environmental damage) or (ii)
the condition of Equipment sold or disposed of after use by Lessee, any
sublessee or employees of Lessee. Lessee shall, upon request, defend any
actions based on, or arising out of, any of the foregoing. (b) All of
Lessor's rights, privileges and indemnities contained in this Section XIV
shall survive the expiration or other termination of this Agreement and the
rights,
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privileges and indemnities contained herein are expressly made for the benefit
of, and shall be enforceable by Lessor, its successors and assigns. (c) Lessee
shall defend, indemnify and hold harmless Lessor, the Assignees, and their
Affiliates, successors and assigns, directors, officers, employees and agents,
from and against any Environmental Claim or Environmental Loss and, unless
Lessee is then contesting in good faith such Environmental Claim or
Environmental Loss and Lessee has set aside on its books appropriate reserves
therefor, Lessee shall fully and promptly pay, perform and discharge any such
Environmental Claim or Environmental Loss.
As used herein:
(1) 'Adverse Environmental Condition' shall refer to (i) the existence or the
continuation of the existence, of an Environmental Emission (including, without
limitation, a sudden or non-sudden accidental or non-accidental Environmental
Emission), of, or exposure to, any Contaminant, odor or audible noise in
violation of any applicable Environmental Law, at, in, by, from or related to
any Equipment, (ii) the environmental aspect of the transportation storage,
treatment or disposal of materials in connection with the operation of any
Equipment in violation of any Applicable Environmental Law, or (iii) the
violation or alleged violation, of any Environmental Law connected with any
Equipment.
(2) `Affiliate' shall refer, with respect to any given Person to any Person
that directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person.
(3) `Contaminant' shall refer to those substances which are regulated by, or
form the liability under any Environmental Law.
(4) `Environmental Claim' shall refer to any accusation, allegation, notice of
violation, claim, demand, abatement or other order or direction (conditional or
otherwise) by any governmental authority or any Person for personal injury
(including sickness, disease or death), tangible or intangible property damage,
damage to the environment or other adverse effects on the environment, or for
fines, penalties or
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restrictions, resulting from or based upon any Adverse Environmental Condition.
(5) `Environmental Emission' shall refer to any actual or threatened release,
spill, omission, leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leeching or migration into the indoor or outdoor environment, or
into or out of any of the Equipment, including, without limitation, the
movement of any Contaminant or other substance through or in the air, soil
surface water, groundwater, or property.
(6) `Environmental Law' shall mean any Federal, foreign, state or local law,
rule or regulation pertaining to the protection of the environment, including,
but not limited to, the Comprehensive Environmental Response, Compensation, and
Liability Act (`CERCLA') (42 U.S.C. Section 9601 et seq.), the Hazardous
Material Transportation Act (49 U.S.C. Section 1801 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901, et seq.), the Clean Air
Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. Section 1361 et seq.), and the Occupational Safety
and Health Act (19 U.S.C. Section 651 et seq.), as these laws have been amended
or supplemented, and any analogous foreign, Federal, state or local statutes,
and the regulations promulgated pursuant thereto.
(7) `Environmental Loss' shall mean any loss, cost damage, liability,
deficiency, fine, penalty or expense (including, without limitation, reasonable
attorneys' fees, engineering and other professional or expert fees),
investigation, removal, cleanup and remedial costs (voluntarily or
involuntarily incurred) and damages to, loss of the use of or decrease in value
of the Equipment arising out of or related to any Adverse Environmental
Condition.
(8) `Person' shall include any individual, partnership, corporation, trust,
unincorporated organization, government or department or agency thereof and any
other entity.
XV. DISCLAIMER:
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LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT WITHOUT ANY ASSISTANCE
FROM LESSOR OR ANY ASSIGNEE, ITS AGENTS OR EMPLOYEES. LESSOR AND ANY ASSIGNEE
DO NOT MAKE, HAVE NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH
RESPECT TO THE EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS,
QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE,
USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR
TITLE. All such risks, as between Lessor and any Assignee and Lessee, are to
be borne by Lessee. Without limiting the foregoing, Lessor and any Assignee
shall have no responsibility or liability to Lessee or any other person with
respect to any of the following, regardless of any negligence of Lessor and any
Assignee: (i) any liability, loss or damage caused or alleged to be caused
directly or indirectly by any Equipment, any inadequacy thereof, any deficiency
or defect (latent or otherwise) therein, or any other circumstance in
connection therewith; (ii) the use, operation or performance of any Equipment
or any risks relating thereto; (iii) any interruption of service, loss of
business or anticipated profits or consequential damages; or (iv) the delivery,
operation, servicing, maintenance, repair, improvement or replacement of any
Equipment. If, and so long as, no default exists under this Agreement, Lessee
shall be, and hereby is, authorized during the term of this Agreement to assert
and enforce, at Lessee's sole cost and expense, from time to time, in the name
of and for the account of Lessor or its Assignee, if any and/or Lessee, as
their interests may appear, whatever claims and rights Lessor or its Assignee
may have against any Seller of the Equipment.
XVI. REPRESENTATIONS AND WARRANTIES OF LESSEE:
Lessee hereby represents and warrants to Lessor that on the date hereof and on
the date of execution of each Schedule: (a) Lessee has adequate power and
capacity to enter into, and perform under, this Agreement and all related
documents (together, the "DOCUMENTS") and is duly qualified to do business
wherever necessary to carry on its present business and operations, including
the jurisdiction(s) where the Equipment is or is to be located. (B) The
Documents have been duly authorized, executed and delivered by Lessee and
constitute valid, legal and binding agreements, enforceable in accordance with
their terms, except to
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the extent that the enforceable bankruptcy and insolvency laws. (c) No
approval, consent or withholding of objections is required to the entry into
or performance by Lessee of the Documents except such as have already been
obtained. (d) The entry into and performance by Lessee of the Documents will
not: (i) violate any provision of Lessee's Certificate of Incorporation of
By-Laws; or (ii) result in any breach of, constitute a default under or
result in the creation of any lien, charge, security interest or other
encumbrance upon any Equipment pursuant to any indenture, mortgage, deed of
trust, bank loan or credit agreement or other instrument (other than this
Agreement) to which Lessee is a party. (e) There are no suits or proceedings
pending or threatened in court or before any commission, board or other
administrative agency against or affecting Lessee, which will have a material
adverse effect on the ability of Lessee to fulfill its obligations under this
Agreement. (f) The Equipment accepted under any Certificate of Acceptance is
and will remain tangible personal property. (g) Each Balance Sheet and
Statement of Income delivered to Lessor has been prepared in accordance with
generally accepted accounting principles, and since the date of the most recent
such Balance Sheet and Statement of Income, there has been no material adverse
change. (h) Lessee is and will be at all times validly existing and in good
standing under the laws of the State of its incorporation (specified in the
first sentence of this Agreement). (i) The Equipment will at all times be used
for commercial or business purposes.
XVII. OWNERSHIP FOR TAX PURPOSES, GRANT OF SECURITY INTEREST; USURY SAVINGS:
(a) For income tax purposes only, the parties hereto agree that it is their
mutual intention that Lessee shall be considered the owner of the Equipment.
Accordingly, Lessor agrees (i) to treat Lessee as the owner of the Equipment on
its federal income tax return, (ii) not to take actions or positions
inconsistent with such treatment on or with respect to its federal income tax
return, and (iii) not to claim any tax benefits available to an owner of the
Equipment on or with respect to its federal income tax return. The foregoing
undertakings by Lessor shall not be violated by Lessor's taking a tax position
inconsistent with the forgoing sentence to the extent such a position is
required by law or is taken through inadvertence so long as such inadvertent
tax position is reversed by Lessor promptly upon its discovery. Lessor shall
in no event be liable to Lessee if Lessee fails
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to secure any of the tax benefits available to the owner of the Equipment.
(b) Lessee hereby grants to Lessor a first security interest in the Equipment,
together with all additions, attachments, accessions, accessories and
accessions thereto whether or not furnished by the Seller of the Equipment and
any and all substitutions, replacements or exchanges therefor, and any and all
insurance and/or other proceeds of the property in and against which is a
security interest is granted hereunder. Notwithstanding anything to the
contrary contained elsewhere in this Agreement, to the extent that Lessor
asserts a purchase money security interest in any items of Equipment ("PMSI
EQUIPMENT"): (i) the PMSI Equipment shall secure only those sums which have
been advanced by Lessor for the purchase of the PMSI Equipment, or the
acquisition of rights therein, or the use thereof (the "PMSI INDEBTEDNESS"),
and (ii) no other Equipment shall secure the PMSI indebtedness. (c) It is the
intention of the parties hereto to comply with any applicable usury laws to the
extent that any Schedule is determined to be subject to such laws; accordingly,
it is agreed that, notwithstanding any provision to the contrary in any
Schedule or this Agreement, in no event shall any Schedule require the payment
or permit the collection of interest in excess of the maximum amount permitted
by applicable law. If any such excess interest is contracted for, charged or
received under any Schedule or this Agreement, or in the event that all of the
principal balance shall be prepaid, so that under any of such circumstances the
amount of interest contracted for, charged or received under any Schedule or
this Agreement shall exceed the maximum amount f interest permitted by
applicable law, then in such event (i) the provisions of this paragraph shall
govern and control, (ii) neither Lessee nor any other person or entity now or
hereafter liable for the payment hereof shall be obligated to pay the amount of
such interest to the extent that it is in excess of the maximum amount of
interest permitted by applicable law, (iii) any such excess which may have been
collected shall be either applied as a credit against the then unpaid principal
balance or refunded to Lessee, at the option of the Lessor, and (iv) the
effective rate of interest shall be automatically reduced to the maximum lawful
contract rate allows under applicable law as now or hereafter construed by the
courts having jurisdiction thereof. It is further agreed that without
limitation of the foregoing, all calculations of the rate of interest
contracted for, charged or received under any Schedule or this Agreement which
are made for the purpose of
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determining whether such rate exceeds the maximum lawful contract rate, shall
be made, to the extent permitted by applicable law, by amortizing, prorating,
allocating and spreading in equal parts during the period of the full stated
term of the indebtedness evidenced hereby, all interest at any time contracted
for, charged or received from Lessee or otherwise by Lessor in connection with
such indebtedness; provided, however, that if any applicable state law is
amended or the law of the United States of America preempts any applicable
state law, so that it becomes lawful for Lessor to receive a greater interest
per annum rate than is presently allowed, the Lessee agrees that, on the
effective date of such amendment or preemption, as the case may maximum
interest per annum rate allowed by the amended state law or the law of the
United States of America in order for Lessor to receive its original return
rate.
XVIII. EARLY TERMINATION: (a) On or after the First Termination Date (specified
in the applicable Schedule), Lessee may, so long as no default exists
hereunder, terminate this Agreement as to all (but not less than all) of the
Equipment on such Schedule as of a Rent Payment Date ("Termination Date") upon
at least 90 days prior written notice to Lessor. (b) Lessee shall, and Lessor
may, solicit cash bids for the Equipment on an AS IS, WHERE IS BASIS without
recourse to or warranty from Lessor, express or implied ("AS IS BASIS"). Prior
to the Termination Date, Lessee shall (i) certify to Lessor any bids received
by Lessee and (ii) pay to Lessor (A) the Termination Value (calculated as of
the rental due on the Termination Date) for the Equipment, and (B) all rent and
other sums due and unpaid as of the Termination Date. (c) Provided that all
amounts due hereunder have been paid on the Termination Date, Lessor shall
(i) sell the Equipment on an AS IS BASIS for cash to the highest bidder and
(ii) refund the proceeds of such sale (net of any related expenses) to Lessee
up to the amount of the Termination Value. If such sale is not consummated, no
termination shall occur and Lessor shall refund the termination Value (less any
expenses incurred by Lessor) to Lessee. (d) Notwithstanding the foregoing,
Lessor may elect by written notice, at any time prior to the Termination Date,
not to sell the Equipment. In that event, on the Termination Date Lessee shall
(i) return the Equipment (in accordance with Section X) and (ii) pay to Lessor
all amounts required under Section XVIII(b) less the amount of the highest bid
certified by Lessee to Lessor.
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XIX. EARLY PURCHASE OPTION: (a) Provided that this Agreement has not been
earlier terminated and provided further that Lessee is not in default under
this Agreement or any other agreement between Lessor and Lessee, Lessee may,
UPON AT LEAST 30 DAYS BUT NO MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO LESSOR
OF LESSEE'S IRREVOCABLE ELECTION TO EXERCISE SUCH OPTION, purchase all (but not
less than all) of the Equipment listed and described in this scheduled on any
Rent Payment Date following the First Termination Date as set forth in the
applicable Schedule, and prior to the date which is the scheduled expiration of
this Agreement, (the "EARLY PURCHASE DATE") for a price equal to (i) the
Termination Value (calculated as of the Early Purchase Date) for the Equipment,
and (ii) all rent and other sums due and unpaid as of the Purchase Date (the
"EARLY OPTION PRICE"), plus all applicable sales taxes on an AS IS BASIS. (The
purchase option granted by this subsection shall be referred to herein as the
"EARLY PURCHASE OPTION"). (b) If Lessee exercises its Early Purchase Option
with respect to the Equipment leased hereunder, then on the Early Purchase
Option with respect to the Equipment leased hereunder, then on the Early
Purchase Date, Lessee shall pay to Lessor any rent and other sums due and
unpaid on the Early Purchase Date and Lessee shall pay the Early Option Price,
plus all applicable sales taxes, to Lessor in cash.
XX. PURCHASE OPTION: (a) So long as no default exists hereunder and this
Agreement has not been earlier terminated, Lessee may at the expiration of the
term of the applicable Schedule term purchase all (but not less than all) of
the Equipment in any Schedule on an AS IS, WHERE IS BASIS for cash equal to the
amount indicated in such Schedule (the "OPTION PAYMENT"). The Option Payment
shall be due and payable in immediately available funds on the Expiration Date.
(b) Lessee shall be deemed to have waived this option unless it provides Lessor
with written notice of its irrevocable election to exercise the same not less
than 90 days prior to the Expiration Date.
XXI. MISCELLANEOUS:
(a) LESSEE HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY,
THIS AGREEMENT, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN LESSEE AND
LESSOR RELATING TO THE
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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 encompassing of any and all disputes that may
be filed in any court (including, without limitation, contract claims, tor
claims, breach of duty claims, and all other common law and statutory claims).
THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND THE WAIVER OR MODIFICATIONS TO THIS AGREEMENT, ANY RELATED
DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS
TRANSACTION OR ANY RELATED TRANSACTION. In the event of litigation, this
Agreement may be filed as a written consent to a trial by the court. (b)
Unless and until Lessee exercises its rights under Section XIX above, nothing
herein contained shall give or convey to Lessee any right, title or interest in
and to any Equipment except as a lessee. Any cancellation or termination by
Lessor, pursuant to the provisions of this Agreement, any Schedule, supplement
or amendment hereto, or the lease of any Equipment hereunder, shall not release
lessee from any then outstanding obligations to Lessor hereunder. All
Equipment shall at all times remain personal property of Lessor regardless of
the degree of its annexation to any real property and shall not by reason of
any installation in, or affixation to, real or personal property become a part
thereof. (c) Time is of the essence of this Agreement. Lessor's failure at any
time to require strict performance by Lessee of any of the provisions hereof
shall not waive or diminish Lessor's right thereafter to demand strict
compliance therewith. Lessee agrees, upon Lessor's request, to execute any
instrument necessary or expedient for filing, recording or perfecting the
interest of Lessor. All notices required to be given hereunder shall be
deemed adequately given if sent by registered or certified mail to the
addressee at its address stated herein, or at such other place as such
addressee may have designated in writing. This Agreement and any Schedule and
Annexes 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.
________________
initials
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(d) In case of a failure of Lessee to comply with any provision of this
Agreement, Lessor shall have the right, but shall not be obligated to, effect
such compliance, in whole or in part; and all moneys spent and expenses and
obligations incurred or assumed by Lessor in effecting such compliance shall
constitute additional rent due to Lessor within five days after the date Lessor
sends notice to Lessee requesting payment. Lessor's effecting such compliance
shall not be a waiver of Lessee's default. (e) Any rent or other amount not
paid to Lessor when due hereunder shall bear interest, both before and after
any judgment to termination hereof, at the lesser of eighteen percent per annum
or the maximum rate allowed by law. Any provisions in this Agreement and any
Schedule which are in conflict with any statute, law of applicable rule shall
be deemed omitted, modified or altered to conform thereto.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
LESSOR: LESSEE:
General Electric Capital Corporation OUTLOOK GROUP CORP.
By:________________________________ By:______________________
Name:______________________________ Name:____________________
Title:_____________________________ Title:___________________
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ADDENDUM
TO MASTER LEASE AGREEMENT
DATED AS OF MARCH 13, 1997
THIS ADDENDUM amends and supplements above lease (the "Lease"), between GENERAL
ELECTRIC CAPITAL CORPORATION and its successors and assigns ("Lessor") and
OUTLOOK GROUP CORP. ("Lessee") and is hereby incorporated into the Lease as
though fully set forth therein. Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Lease.
The Lease is hereby amended as follows:
Section XI (a): The following sentences are added at the end of subsection (a)
Lessor agrees that if Bank of America Business Credit waives any default
by the Lessee under the Loan and Security agreement with the Lessee or if
such default is cured within the applicable cure period then such default
shall not be a default under this agreement. Lessor also agrees that if
the State of Wisconsin Investment Board waives any default Agreement with
the Lessee or if such default is cured within the applicable cure period
then such default shall not be a default under this Agreement. Lessee
shall provide Lessor with a copy of any such waiver.
Except as expressly modified hereby, all terms and provisions of the Lease
shall remain in full force and effect. This Addendum is not binding or
effective with respect to the Lease or the Equipment until executed on behalf
of Lessor and Lessee by authorized representatives of Lessor and Lessee.
IN WITNESS WHEREOF, Lessee and Lessor have cause this Addendum to be executed
by their duly authorized representatives as of the date first above written.
LESSOR: LESSEE:
General Electric Capital Corporation OUTLOOK GROUP CORP.
By:________________________________ By:______________________
Name:______________________________ Name:____________________
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Title:_____________________________ Title:___________________
Attest:
By:_______________________
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