Exhibit 10.34
MASTER LEASE AGREEMENT
U.S. BANKCORP
THIS LEASE, dated as of AUGUST 4, 1999, is made by and between U.S.
Bancorp Leasing & Financial - Machine Tool Finance Group, hereafter referred to
as "Lessor," and TOWER TECH, INC., hereafter referred to as "Lessee."
LESSOR AND LESSEE COVENANT AND AGREE AS FOLLOWS:
1. PROPERTY LEASED. Lessor agrees to lease to Lessee and Lessee agrees
to lease from Lessor the personal property ("Property") together with any
replacements, additions, repairs, now or hereafter incorporated therein as
described in any Schedule to Master Lease Agreement ("Schedule") now or
hereafter executed by the parties hereto, the terms of which are incorporated
herein.
2. TERM. This Lease shall become effective on the execution hereof by
Lessor. The Term of this Lease may consist of an "Interim Term" and a "Base
Term" in regard to each Schedule. The Interim Term for each Schedule shall begin
on the date that Lessee executes a Delivery and Acceptance Certificate in
connection with any item of Property or provides to Lessor written approval for
payment for such item of Property. Each Interim Term shall continue until the
Base Term Commencement Date set forth in each Schedule. The Base Term for each
Schedule shall begin on the Base Term Commencement Date and shall continue for
the period specified in each Schedule. During each Interim Term, if any, Lessee
shall pay rental ("Interim Rental") in the amount set forth in each Schedule
plus applicable tax thereon.
3. RENT, PAYMENT AND TAXES. Rental payments are specified in each
Schedule. All rents shall be payable by Lessee each month on or before the
payment date shown in each Schedule at Lessees address herein, or as otherwise
directed by Lessor, without notice or demand and without abatement, set-off or
deduction of any amount whatsoever. Lessee shall pay when due all taxes, fees,
assessments, or other charges, however designated, now or hereafter levied or
based upon the rentals, ownership, use, possession, leasing, operation, control,
or maintenance of the Property, whether or not paid or payable by Lessor,
excluding Lessees income, franchise and business and occupation taxes, and shall
supply Lessor with proof of payment satisfactory to Lessor at least seven (7)
days before delinquency. At its option, Lessor may pay any tax, assessment,
insurance premium, expense, repair, release, confiscation expense, lien,
encumbrance, or other charge or fee payable hereunder by Lessee, and any amount
so paid shall be repayable by Lessee on demand.
For any payment due hereunder which is not paid within ten (10) days
after the date such payment is due, Lessee agrees to pay a late charge
calculated thereon of such late charge represents a reasonable estimate
of the cost at a rate of five percent (5.0%) of such overdue amount The
parties hereto agree that: a) the amount that Lessor would incur in
processing each delinquent payment by Lessee and that such late charge
shall be paid as liquidated damages for each delinquent payment-, and,
b) the payment of late charges and the payment of Default Interest are
distinct and separate from one another. Acceptance of any late charge
or interest shall not constitute a waiver of default with respect to
the overdue amount or prevent Lessor from exercising any other
available rights and remedies. Payments received shall be applied first
to delinquent amounts due, including late charges, then to current
installments. If any such rental payment is made by check and such
check is returned to Lessor for any reason, including without
limitation, insufficient funds in Lessee's account, then Lessee shall
be assessed a fee of S25.00 in addition to any other late charge or any
other fee which may be applicable.
If the Property is located in a jurisdiction which imposes any "Sales,"
"Use," or "Rental" tax, Lessor shall collect such tax from Lessee and remit such
tax to the appropriate taxing authority or Lessee shall remit such tax directly
to the appropriate taxing authority. Such requirement may only be waived if
Lessee is exempt from such tax under applicable laws or regulations. Lessee is
responsible for ensuring that such exemption is properly documented in
accordance with such laws and regulations and that such documentation is
provided to Lessor at the inception of each Schedule.
If the Property is subject to Personal Property Taxes, both Lessee and
Lessor are required to advise the proper taxing authorities of all leased
property. Lessee agrees that it will report the Property as having an original
cost as set forth on each Schedule and as Property leased from U.S. BANCORP
LEASING & FINANCIAL. If Lessor receives an invoice from the taxing authorities
for applicable Personal Property Taxes, Lessor shall pay any such taxes directly
and Lessee agrees to reimburse Lessor for all such taxes paid by Lessor. If
Lessee receives such invoice, Lessee agrees to promptly remit such tax directly
to the taxing authority and maintain proof of payment. Upon termination of each
Schedule, Lessor will, if applicable, estimate Personal Property Taxes on the
Property based upon the most recent tax assessment of the Property or on the tax
rates and taxable value calculations as available from the appropriate taxing
jurisdiction. In the event that the actual personal property tax xxxx is within
$500.00 of such estimate, then Lessor shall not seek reimbursement from Lessee
for any underpayment, and Lessor may retain any overpayment. If the difference
between such estimate and the actual tax xxxx exceeds $500.00, Lessor shall
refund or Lessee shall remit the entire difference.
4. LOSS OR DAMAGE. No loss or damage to the Property, or any part of
it, shall impair any obligation of Lessee hereunder. Lessee assumes all risk of
damage to or loss of the Property, however caused, while in transit and during
the term hereof. If any Property is totally destroyed, Lessee's liability to pay
rent for it may be discharged by paying Lessor the Stipulated Loss Value of the
Property if such a Value is provided in the applicable Schedule or, the amount
specified in Se on 14(e) of this Lease, less the amount of any recovery received
by Lessor from any insurance or other source.
5. OWNERSHIP, LOCATION, MAINTENANCE AND USE. Lessee transfers to Lessor
all right, title and interest, including any and all ownership interest, which
Lessee may have in or to the Property. Lessee represents and warrants that it
has the legal right to make such transfer and that such transfer does not
constitute a transfer of all or substantially all of the assets of Lessee, and
that such transfer does not constitute all or a portion of a "bulk transfer"
under the Uniform Commercial Code. It is agreed between the parties hereto that
Lessor shall be the owner of, and hold title to, the Property for all purposes
throughout each Schedule. At its own risk, Lessee shall use or permit the use of
the Property primarily at the location specified in the Schedule and, without
Lessees prior written consent, shall not loan, sublet, remove from such
location, part with possession or otherwise dispose of the Property. Lessee
shall at its sole expense maintain the Property in good repair, appearance and
functional order and in compliance with any manufacturer's and regulatory
maintenance and performance standards, shall keep complete records and documents
regarding its use, maintenance and repair, shall not use or permit the use of
the Property in any unintended, injurious or unlawful manner, shall not permit
use or operation of the Property by any one other than Lessee's qualified
employees and shall not change or alter the Property without Lessor's written
consent. Lessee shall not create, cause, or permit any kind of claim, xxxx, xxxx
or legal process on the Property, and shall forthwith satisfy, remove and
procure the release thereof The Property is and always shall remain personal
property. Lessee shall not cause or permit the Property to be used or located in
such a manner that it might be deemed a fixture. Lessee shall secure from each
person not a party hereto who might secure an interest, lien or other claim in
the Property, a waiver thereof Lessee shall affix and maintain, at its expense,
in a prominent and visible location, all ownership notices supplied by Lessor.
Lessee shall permit Lessor to xxxx the Property in a manner sufficient to
identify the Property as Lessor's Property.
6. LEASE This is a non-cancelable contract of lease only and nothing
herein or in any other document executed in conjunction herewith shall be
construed as conveying or granting to Lessee any option to acquire any right,
title or interest, legal or equitable, in or to the Property, other than use,
possession and quiet enjoyment of the Property, subject to and upon full
compliance with the provisions hereof Lessee and Lessor agree that this Lease is
a "Finance Lease" as defined by the Uniform Commercial Code Article 2A, the
Uniform Personal Property Leasing Act. Notwithstanding the foregoing, Lessee
hereby grants to Lessor a security interest in and to the Property as security
for all Lessee's obligations to Lessor of every kind and nature.
Lessee hereby acknowledges that all of the leased Property was selected
by Lessee from Supplier(s) chosen by Lessee. Lessee is familiar with all Supply
Contract rights provided by the Supplier(s) and is aware that the Supplier(s)
may be contacted for a full description of any rights Lessee may have under any
Supply Contract Providing Lessee is not in Default under this Lease, Lessor
hereby assigns to Lessee without recourse, all rights arising under any
warranties applicable to the Property provided by the manufacturer or any other
person. All proceeds of any warranty claim from the manufacturer or any other
person shall first be used to repair the affected Property.
7. GENERAL INDEMNIFICATION AND INSURANCE. Lessee assumes liability for,
and agrees to defend, indemnify and hold Lessor harmless from any claim,
liability, loss, cost, expense, or damage of every nature (including, without
limitation, fines, forfeitures, penalties, settlements, and attorneys' fees) by
or to any person whomsoever, regardless of the basis, including wrongful,
negligent or improper act or misuse by Lessor, which directly or indirectly
results from or pertains to the leasing, manufacture, delivery, ownership, use,
possession, selection, performance, operation, inspection, condition (including
without limitation, latent or other defects, and whether or not discoverable),
improvements, removal, return or storage of the Property, except arising while
the Property is in the possession of Lessor.
Upon request of Lessor, Lessee shall assume the defense of all demands,
claims, or actions, suits and all proceedings against Lessor for which indemnity
is provided and shall allow Lessor to participate in the defense thereof. Lessor
shall be subrogated to all rights of Lessee for any matter which Lessor has
assumed obligation hereunder, and may settle any such demand, claim, or action
without Lessee's prior consent, and without prejudice to Lessees right to
indemnification hereunder.
At its expense, Lessee shall maintain in force, at all times from
shipment of the Property to Lessee until surrender thereof, property damage
insurance and liability insurance with such deductibles and from such insurance
carriers as shall be satisfactory to Lessor. The Property must be insured
against all risks which are customarily insured against on the type of property
leased hereunder. The amount of Lessee's liability insurance shall not be less
than $500,000.00. Such insurance policies must name Lessor as an additional
insured and loss payee, and provide for ten (10) days advance written notice to
Lessor of modification or cancellation. Lessee shall, upon request, deliver to
Lessor satisfactory evidence of the insurance coverage. In the event Lessee
fails to do so, Lessor may, at Lessees option, in addition to any other rights
available to Lessor, obtain coverage, and any sum paid therefor by Lessor
(including any charges assessed by Lessor for such service) shall be immediately
due and p able to Lessor by Lessee.
8. INCOME TAX INDEMNITY. Lessee hereby represents, warrants, and covenants
to Lessor as follows:
(a) This Lease will be a lease for Federal and Oregon state income tax
purposes; Lessor will be treated as the purchaser, owner, lessor, and original
user of the Property and Lessee will be treated as the lessee of the Property
for such purposes.
(b) Lessor shall be entitled to depreciation deductions with respect to
each item of Property as provided by Section 167(a) of the Internal Revenue Code
of 1986, as amended (the "Code"), determined under Section 168 of the Code by
using the applicable depreciation method, the applicable recovery period, and
the applicable convention, all as may be specified on the applicable Schedule
for the Property, and Lessor shall also be entitled to corresponding Oregon
depreciation deductions
(c) For purposes of determining depreciation deductions, the Property
shall have an income tax basis equal to Lessees cost for the Property specified
on the applicable Schedule, plus such expenses of the transaction incurred by
Lessor as may be included in basis under Section 1012 of the Code.
(d) The maximum federal and Oregon income tax rates applicable to
Lessor in effect on the date of execution and delivery of a Schedule with
respect to an item or items of Property will not change during the lease term
applicable to such Property.
If for any reason whatsoever any of the representations, warranties, or
covenants of Lessee contained in this Lease or in any other agreement relating
to the Property shall prove to be incorrect and (i) Lessor shall determine that
it is not entitled to claim all or any portion of the depreciation deductions in
the amounts and in the taxable years deter-mined as specified in (b) and (c),
above, or (ii) such depreciation deductions are disallowed, adjusted,
recomputed, reduced, or recaptured, in whole or in part, by the internal Revenue
Service or Oregon Department of Revenue (such determination, disallowance,
adjustment, recomputation, reduction, or recapture being herein called a
"Loss"), then Lessee shall pay to Lessor as an indemnity and as additional rent
such amount as shall, in the reasonable opinion of Lessor, cause Lessor's
after-tax economic yield (the "Net Economic Return") to equal the Net Economic
Return that would have been realized by Lessor if such Loss had not occurred.
Ile amount payable to Lessor pursuant to this section shall be payable on the
next succeeding rental payment date after written demand therefor from Lessor
accompanied by a written statement describing in reasonable detail such Loss and
the computation of the amount so payable.
Further, in the event (i) there shall be any change, amendment,
addition, or modification of any provision of Oregon law or of the Code or
regulations thereunder or interpretation thereof with respect to the matters set
forth in this section effective prior to the commencement date of the term of
this Lease with respect to any Property or (ii) if at any time there shall be
any change, amendment, addition, or modification of any provision of Oregon law
or of the Code or regulations thereunder or interpretation thereof with respect
to the maximum applicable federal and state income tax rates as set forth in (d)
above, which results in a decrease in Lessees Net Economic Return, then Lessor
shall recalculate and submit to Lessee the modified rental rate required to
provide Lessor with the same Net Economic Return as it would have realized
absent such change and the lease shall thereupon automatically be deemed to be
amended to adopt such rental rate and values.
9. INSPECTION AND REPORTS. Lessor shall have the right, at any
reasonable time, to enter on Lessee's premises or elsewhere and inspect the
Property and any records and documents regarding its use, maintenance and
repair. Upon Lessees request, but in no event later than thirty (30) days after
such request, Lessee will deliver all information requested by Lessor which
Lessor deems necessary to determine Lessee's current financial condition or
faithful performance of the terms hereof. Lessee shall give Lessor immediate
notice and copy of all tax notices, reports, or inquiries, and of all seizure,
attachment, or judicial process affecting or relating to the use, maintenance,
operation, possession, or ownership of the Property.
10. LESSEE'S REPRESENTATIONS AND WARRANTIES. Lessee represents and warrants
to Lessor that as of the date of this Lease and of each Schedule:
(a) Lessee has adequate power and capacity to enter into this Lease,
any Schedule, and any other documents required to be delivered in connection
with this Lease (collectively, the "Documents"); the Documents have been duly
authorized, executed and delivered by Lessee and constitute valid, legal and
binding agreements, enforceable in accordance with their terms; there are no
proceedings presently pending or threatened against Lessee which will impair its
ability to perform under the Lease; and all information supplied to Lessor is
accurate and complete.
(b) Lessee's entering into the Lease and leasing the Property does not
and will not; (i) violate any judgment, order, or law applicable to the Lease,
Lessee or Lessee's organizational documents; or (ii) result in the creation of
any lien, security interest or other encumbrance upon the Property, other than
as granted hereunder.
(c) All information and representations furnished by Lessee to Lessor
concerning the Property are accurate and correct
(d) All financial data of Lessee or of any consolidated group of
companies of which Lessee is a member ("Lessee Group"), delivered to Lessor have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis with prior periods and fairly present the
financial position and results from operations of Lessee, or of the Lessee
Group, as of the stated date and period(s). Since the date of the most recently
delivered financial data, there has been no material adverse change in the
financial or operating condition of Lessee or of the Lessee Group.
(e) If Lessee is a business entity, it is and will be validly existing
and in good standing under laws of the state of its organization; the persons
signing the Documents are acting with all necessary authority and hold the
offices indicated below their signatures, which are genuine.
11. ASSIGNMENT. LESSEE SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR
ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE OR ENTER INTO ANY SUBLEASE OF
ALL OR ANY PART OF THE LEASED PROPERTY WITHOUT THE PRIOR WRITTEN CONSENT OF
LESSOR WHICH SHALL NOT BE UNREASONABLY WITHHELD. IN CONNECTION WITH THE GRANTING
OF SUCH CONSENT AND THE PREPARATION OF NECESSARY DOCUMENTATION, A FEE SHALL BE
ASSESSED EQUAL TO ONE PERCENT (1%) OF THE TOTAL REMAINING BALANCE THEN DUE
HEREUNDER.
LESSEE AGREES THAT LESSOR MAY ASSIGN OR TRANSFER THIS LEASE OR LESSOR'S
INTEREST IN THE LEASED PROPERTY WITHOUT NOTICE TO LESSEE. Any assignee of Lessor
shall have all of the rights, but none of the obligations, of Lessor under this
Lease and Lessee will not assert against any assignee of Lessor any defense,
counter claim or offset that Lessee may have against Lessor. Lessee acknowledges
that any assignment or transfer by Lessor will not materially change Lessee's
duties or obligations under this Lease nor materially increase the burdens or
risks imposed on Lessee. Lessee shall cooperate with Lessor in executing any
documentation reasonably required by Lessor or any assignee of Lessor to
effectuate any such assignment.
12. SURRENDER. On the expiration or termination of the term specified
in each Schedule, Lessee shall, at its risk and expense and according to
manufacturers recommendations, assemble, prepare for delivery, and deliver the
applicable Property and all manuals, records, certificates and documents
regarding its use, maintenance and repair to any location specified by Lessor
within the continental United States. Upon return of the Property any upgrades
and improvements shall become the property of Lessor. Any upgrades, parts or
improvements may only be removed from the Property if their removal shall not
impair the Property's ability to operate according to any manufacturers and
regulatory performance standards and specifications. The Property shall be
delivered unencumbered and free of any liens, charges, or other obligations
(including delivery expense and sales or use taxes, if any, arising from such
delivery) and shall be in good working order, in the same condition, appearance,
and functional order as when first leased hereunder, reasonable wear excepted,
and in the condition specified or described in the applicable Schedule. At
Lessees request, Lessee shall at Lessee's expense provide Lessor with a written
certification by an independent engineer or other recognized expert acceptable
to Lessor to the effect that the Property is in the condition required
hereunder. In lieu of delivery, Lessor may, at its option, direct Lessee to
dispose of all or a portion of the Property in a proper and lawful manner at a
recognized disposal site at Lessee's sole cost and responsibility.
13. DEFAULT. Time is of the essence under this Lease, and Lessee shall
be in default in the event of any of the following ("Event of Default"): (a) any
failure to pay when due the full amount of any payment required hereunder,
including, without limitation, rent, taxes, liens, insurance, indemnification,
repair or other charge; (b) any misstatement or false statement in connection
with, or non-performance of any of Lessee's obligations, agreements, or
affirmations under or emanating from, this Lease; (c) Lessee's death,
dissolution, termination of existence; (d) if any of the following actions or
proceedings are not dismissed within sixty (60) days after commencement:
Lessee's insolvency, becoming the subject of a petition in bankruptcy, either
voluntary or involuntary, or in any other proceeding under federal bankruptcy
laws; making an assignment for benefit of creditors; or being named in, or the
Property being subjected to a suit for the appointment of a receiver, (e) any
failure to pay, as and when due, any obligation of Lessee, whether or not to
Lessor, arising independently of this Lease; (f) any removal, sale, transfer,
sublease, encumbrance, seizure or levy of or upon the Property; or (g)
bankruptcy, insolvency, termination, death, dissolution, or default of any
guarantor for Lessee.
14. REMEDIES. Upon the occurrence of any Event of Default which
continues for more than ten (10) days and at any time thereafter, Lessor shall
have all remedies provided by law; and, without limiting the generality of the
foregoing and without terminating this Lease, Lessor, at its sole option, shall
have the right at any time to exercise concurrently, or separately, without
notice to Lessee (unless specifically stated), any one or all of the following
remedies:
(a) thereof on demand;
Request Lessee to assemble the Property and make it available to Lessor at a
reasonable place designated by Lessor and put Lessor in possession
(b) Immediately and without legal proceedings or notice to Lessee,
enter the premises, take possession of, remove and retain the Property or render
it unusable (any such taking shall not terminate this Lease);
(c) Declare the entire amount of rent and other sums payable hereunder
immediately due and payable; however, in no event shall Lessor be entitled to
recover any amount in excess of the maximum permitted by applicable law;
(d) Terminate the leasing of any or all items of Property. Such
termination shall occur only upon notice by Lessor and only as to such items of
Property as Lessor specifically elects to terminate. This Lease shall continue
in full force and effect as to any remaining items;
(e) Recover the sum of. (i) any accrued and unpaid rent, plus (ii) the
present value of all future rentals reserved in the Lease and contracted to be
paid over the unexpired term of the Lease, discounted at the rate of six percent
(6%); plus, (iii) the anticipated residual value of the Property as of the
expiration of this Lease or any renewal thereof-, (iv) any indemnity payment, if
then determinable; (v) all commercially reasonable costs and expenses incurred
by Lessor in any repossession, recovery, storage, repair, sale, re-lease or
other disposition of the Property, including reasonable attorneys' fees and
costs incurred in connection therewith or otherwise resulting from Lessee's
default (including any incurred at trial, on appeal or in any other proceeding);
and, (vi) the value of all tax benefits lost to Lessor as a result of Lessee's
default or the enforcement by Lessor of any remedy; plus interest on each of the
foregoing at a rate of fifteen percent (15.0%) per annum ("Default Interest");
and,
(f) Lessor may, but is not required to, re-lease or sell any or all of
the Property at a public or private sale on such terms and notice as Lessor
shall deem reasonable. The proceeds of any sale or lease shall be applied in the
following order of priorities: (i) to pay all of Lessees expenses in taking,
removing, holding, repairing and disposing of Property; then (ii) to pay any
late charges and interest accrued; then (iii) to pay accrued but unpaid rent
together with the anticipated residual value, future rent, interest and all
other due but unpaid sums (including any indemnification and sums due under
other Leases or agreements in default). Any remaining proceeds will reimburse
Lessee for payments which it made to reduce the amounts owed to Lessor in the
preceding sentence. Lessor shall keep any excess. If the proceeds of any sale or
lease are not enough to pay the amounts owed to Lessor under this Section,
Lessee shall pay the deficiency.
No remedy referred to in this paragraph is intended to be exclusive,
but shall be cumulative and in addition to any other remedy referred to above or
otherwise available to Lessor at law or in equity.
15. LESSEE'S WAIVER To the extent permitted by applicable law, Lessee
hereby waives any and all rights and remedies now or hereafter conferred by
statute or otherwise including but not limited to Lessee's rights to: (i) cancel
or repudiate this Lease; (ii) reject or revoke acceptance of the Property; (iii)
recover damages from Lessor for any breaches of warranty; (iv) claim, grant or
permit a security interest in the Property in Lessee's possession or control for
any reason; (v) deduct all or part of any claimed damages resulting from
Lessor's default, if any, under this Lease; (vi) accept any partial delivery of
the property; (vii) "cover" by making any purchase or lease of or contract to
purchase or lease property in substitution for the Property; (viii) commence
legal action against Lessor for specific performance, replevin, sequestration,
claim and delivery or the like for the Property.
16. NOTICES, PAYMENTS AND GOVERNING LAW. All notices and payments shall
be mailed or delivered to the respective parties at the below address, or such
other address as a party may provide in writing from time to time. This Lease
shall be considered to have been made in the State of Oregon and shall be
interpreted, and the rights and liabilities of the parties determined, in
accordance with applicable federal law and the laws of the State of Oregon. In
the event of suit enforcing this Lease, Lessee agrees that venue may, at Lessees
option, be laid in the county of Lessor's address below. LESSOR AND LESSEE EACH
WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION ARISING FROM OR RELATED TO
THIS LEASE.
17. SEVERABILITY. If any of the provisions of this Lease are contrary
to, prohibited by, or held invalid under applicable laws, regulations or public
policy of any jurisdiction in which it is sought to be enforced, then that
provision shall be considered inapplicable and omitted but shall not invalidate
the remaining provisions. In no event shall this Lease be enforced in any way
which permits Lessor to charge or collect interest in excess of the maximum
lawful rate. Should interest collected exceed such rate, Lessor shall refund
such excess interest to Lessee. In such event, Lessee agrees that Lessor shall
not be subject to any penalties provided by law for contracting for or
collecting interest in excess of the maximum lawful rate.
18. SURVIVAL. All of Lessees rights, privileges and indemnities
contained herein shall survive the expiration or other termination of the Lease
and any Schedules, and the rights, privileges and indemnities contained herein
are expressly made for the benefit of, and shall be enforceable by, Lessor, its
successors and assigns.
19. LESSOR'S DISCLAIMERS. Lessor has obtained the Property based on
specifications furnished by the Lessee. Lessor does not deal in property of this
kind or otherwise hold itself or its agents out as having knowledge or skill
peculiar to the Property. Lessee acknowledges that it has relied on its own
skill and experience in selecting property suitable to the Lessee's particular
needs or purposes and has neither relied upon the skill or judgment of Lessor
nor believes that Lessor or its agents possess any special skill or judgment in
the selection of Property for Lessee's particular purposes. Further, Lessee has
not notified Lessor of Lessee's particular needs in using the Property.
Lessee understands and agrees that neither the Supplier(s) nor any
salesman or any agent of the Supplier(s) is an agent of Lessor. No salesman or
agent of supplier is authorized to waive or alter any term or condition of this
Lease, and no representation as to the Property or any other matter by the
Supplier shall in any way affect Lessee's duty to pay the rent and perform its
obligations as set forth in this Lease. Lessor shall not be liable to Lessee for
any incidental, consequential, or indirect damages or for any act, neglect,
omission, breach or default by any third party.
LESSOR ASSUMES NO RESPONSIBILITY FOR AND MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, AS TO THE TITLE, DESIGN, COMPLIANCE WITH
SPECIFICATIONS, CONDITION, QUALITY, WORKMANSHIP, OR THE SUITABILITY, SAFETY,
ADEQUACY, OPERATION, USE OR PERFORMANCE OF THE PROPERTY OR AS TO ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR AS TO PATENT, TRADEMARK
OR COPYRIGHT INFRINGEMENT. ANY DELAY IN DELIVERY SHALL NOT AFFECT THE VALIDITY
OF THIS LEASE.
LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY REPRESENTATION, CLAIM,
BREACH OF WARRANTY, EXPENSE OR LOSS DIRECTLY OR INDIRECTLY CAUSED BY ANY PERSON,
INCLUDING LESSOR, OR IN ANY WAY RELATED TO THE PROPERTY.
20. ENTIRE AGREEMENT, WAIVERS, SUCCESSORS, NOTICE. This Lease and any
Schedule expressly referring hereto (each, a "Transaction") contain the entire
agreement of the parties and shall not be qualdied or supplemented by course of
dealing. However, in any case where the Lessor takes an assignment from a vendor
of its security interest in the same Property, the terms of the Transaction
shall be incorporated into the assigned agreement and shall prevail over any
inconsistent terms therein but shall not be construed to create a new contract.
No waiver or modification by Lessor of any of the terms or conditions hereof
shall be effective unless in writing signed by an officer of Lessor. No waiver
or indulgence by Lessor of any default or deviation by Lessee of any required
performance shall be a waiver of Lessees right to subsequent or other full and
timely performance. This Lease shall be binding on the parties hereto and their
respective successors and assigns and shall inure to the benefit of such
successors and assigns. Paragraph headings shall not be considered a part of
this Lease.
Under Oregon law, most agreements, promises and commitments made by
Lessor after October 3, 1989, concerning loans and other credit extensions which
are not for personal. family or household purposes or secured solely by the
Lessee's residence must be in writing, express consideration and be cyanide by
Lessor to be enforceable.
BY INITIALING THIS SECTION, LESSEE ACKNOWLEDGES THAT LESSEE HAS READ THE ABOVE
PARAGRAPHS UNDER SECTION 19, LESSOR'S DISCLAIMERS, AND.SECTION 20, ENTIRE
AGREEMENT, AND FULLY UNDERSTANDS THEIR CONTENT.
INITIALED: ss/HC
21. POWER OF ATTORNEY. LESSEE HEREBY AUTHORIZES AND APPOINTS LESSOR AS
ITS ATTORNEY-IN-FACT TO COMPLETE, AMENDANDEXECUTE ONLESSEE'S BEHALF FINANCING
STATEMENTS INCONNECTION WITHTHIS LEASE AND TO CONFORM THE DESCRIPTION OF THE
PROPERTY (INCLUDING SERIAL NUMBERS) IN ANY SUCH FINANCING STATEMENTS OR OTHER
DOCUMENTATION. LESSEE WILL ALSO PROMPTLY EXECUTE AND DELIVER TO LESSOR SUCH
FURTHER DOCUMENTS AND TAKE FURTHER ACTION AS LESSOR MAY REQUEST TO MORE
EFFECTIVELY CARRY OUT THE INTENT AND PURPOSE OF THIS LEASE.
IN WITNESS WHEREOF, Lessor and Lessee have each caused this Master
Lease Agreement to be duly executed as of the day and year first above written.
TOWER TECH, INC. (LESSEE)
By: ss/XXXXXX XXXXXX
-------------------
PRESIDENT
U.S. BANCORP LEASING & FINANCIAL -
MACHINE TOOL FINANCE GROUP (LESSOR)
By:____________________________________
An Authorized Officer Thereof
Address for All Notices:
U. S. BANCORP LEASING & FINANCIAL
P.O. Box 2177, 0000 X.X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
SCHEDULE TO MASTER LEASE AGREEMENT
U.S. BANCORP
Schedule Number 27208A-17269-001
THIS SCHEDULE made as of AUGUST 4, 1999 by and between U.S. BANCORP
LEASING & FINANCIAL -MACHINE TOOL FINANCE GROUP ("Lessor"), having its principal
place of business at X.X. Xxx 0000, 0000 X.X. Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx
00000-0000, and TOWER TECH, INC. ("Lessee"), having its principal place of
business located at X.X. XXX 000000, XXXXXXXX XXXX, XX 00000, to the Master
Lease Agreement dated as of AUGUST 4, 1999 between the Lessee and the Lessor
(the "Lease"). Capitalized terms used but not defined herein are used with the
respective meanings specified in the Lease. If any terms hereof are inconsistent
with the terms of the Lease, the terms of the Schedule shall prevail.
LESSOR AND LESSEE HEREBY COVENANT AND AGREE AS FOLLOWS:
(a) The following specified equipment (the "Property") is hereby made and
constituted Property for all purposes pursuant to the Lease:
ONE (1) HPM MODEL MLH730-160 INJECTION MOLDING MACHINE WITH BIMETALLIC BARREL,
RECIPROCATING SCREW, 3/4" RADIUS NOZZLE, HYDRAULIC EJECTOR WITH 9/16" THRU HOLE
EJECTOR PLATE, HPM WRAP-AROUND TANK, ROBOT TAKE-OUT AND ALL ACCESSORIES AND
ATTACHMENTS.
(b) The Property will be installed or stored at the following address
11935 S. X-00 XXXXXXX XXXX,
XXXXXXXX XXXX, XX 00000, COUNTY: CLEVELAND
(c) The cost of the Property is $371,513.00;
(d) The total amount financed pursuant to this Schedule is $278,634.75;
Please Initial Here: ss/HC
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(e) The Term applicable to this Schedule (the "Term") shall be Thirty Six (36)
months, with basic monthly rental payments of One @ $14,000.00 Followed by
Eleven (11) @ $9,500.00 Followed by Twenty Four (24) @ $8,687.41 each plus
applicable sales and/or Use tax. The first such payment shall be due on the
Equipment Acceptance Date. Each subsequent payment shall be due on the Payment
Due Date (as defined in Paragraph 1 below) corresponding to the day of the month
of the Equipment Acceptance Date.
(f) The record owner of the premises at which the Property will be
installed or stored is: Tower Tech, Inc.,
(g) Lessor and Lessee agree that Section 8 of the Lease entitled "Income Tax
Indemnity" shall NOT apply to this Schedule.
1. PAYMENT DUE DAY. Payment Due Days are on the First, 10th and 20th of each
month. Acceptance or Rental Commencement Dates occurring on the 26th through the
5th day of a month shall have a Payment Due Day on the First of each month.
Acceptance or Rental Commencement Dates occurring on the 6th through the 15th
day of a month shall have a Payment Due Day on the 10th of each month.
Acceptance or Rental Commencement Dates occurring on the 16th through the 25th
day of a month shall have a Payment Due Day on the 20th of each month.
2. PAYMENT ADJUSTMENT. If a Delivery and Acceptance Certificate (a
"Certificate") is not executed within Thirty (30) day(s) of the date of this
Schedule, then, as of the date such Certificate is executed (the "Adjustment
Date"), the basic monthly rental payments due hereunder shall be recalculated
based upon increases in the 30-day rolling average of Thirty Six (36)-month U.
S. Treasury Notes (the "Rolling Average") from the date hereof until the
Adjustment Date. If, on the Adjustment Date, the Rolling Average is greater than
5.66%, then the basic monthly rental payments due hereunder shall be increased
accordingly to reflect the actual rate. Thereafter, the basic monthly rental
payments shall remain fixed during the Term hereof, In no event shall the amount
of the basic monthly rental payment as set forth above be decreased.
3. LATE CHARGE. If any installment of Rent shall not be received by Lessor or
Lessor's Assignee within ten (10) days after such amount is due, Lessee shall
pay to Lessor a late charge equal to Eight percent (8.0%) of such overdue
amount.
4. TITLE PASSAGE. a.. As long as no event of default has occurred and is
continuing under the Lease, Lessee shall have the option to purchase all, but
not part, of the Property at the end of the Term or any renewal thereof (the
"Option") for a purchase price of $1.00, (the "Purchase Price"). Payment of the
Purchase Price must be received by Lessor on or before the last day of the Term.
The Purchase Price shall be deemed to be the "anticipated" or "estimated"
residual value of the Property (as such terms are used in the Lease).
b. Upon receipt of payment of the Purchase Price together with any and
all applicable sales or other taxes due in connection therewith, and any and all
remaining sums or other amounts payable under this Schedule, Lessor shall
transfer all its right, title and interest in and to the Property to Lessee. The
Property shall be transferred "As Is" and "Where Is" without any express or
implied representations or warranties.
Year 2000. Lessee has reviewed and assessed or will review and assess its
business operations and computer systems and applications to address the "year
2000 problem" (that is, that computer applications and equipment used by Lessee,
directly or indirectly through third parties, may be unable to properly perform
date-sensitive functions before, during and after January 1, 2000). Lessee
reasonably believes that the year 2000 problem will not result in a material
adverse change in Lessee's business condition (financial or otherwise),
operations, properties or prospects or ability to repay Lessor. Based upon the
review, Lessee has developed or will develop and implement a plan to address the
year 2000 problem, to remediate any material year 2000 problem, and to complete
testing with respect thereto, as soon as practicable and in any event by
September 30, 1999. Lessee will promptly deliver such information relating to
this covenant as Lessor requests from time to time.
IN WITNESS WHEREOF, the Lessor and the Lessee have each caused this
Schedule to be duly executed as of the day and year first above written.
TOWER TECH, INC.
By: ss/XXXXXX XXXXXX
--------------------
Title: PRESIDENT
U.S. BANCORP LEASING & FINANCIAL - MACHINE TOOL FINANCE GROUP
By: ________________________
An Authorized Officer Thereof
Address for All Notices:
U. S. BANCORP LEASING & FINANCIAL
X.X. Xxx 0000, 0000 X.X. Xxxxxx Xxxxxx
Tualatin, Oregon 97062-2177
Machine Tool Finance Group
(000) 000-0000 (000) 000-0000
General Equipment Group
(000) 000-0000 (000) 000-0000
EXHIBIT "A"
U.S. BANCORP
Lease/Loan Schedule Number 27208A-17269-001
----------------
Reference is made to that certain Schedule to Master Lease/Loan
Agreement (the "Agreement") dated AUGUST 4, 1999 wherein U.S. BANCORP LEASING &
FINANCIAL - MACHINE TOOL FINANCE GROUP is the Lessor/Secured Party and TOWER
TECH, INC. is the Lessee/Debtor.
The "Property" and/or "Collateral" (as defined and used in the above Agreements
and any and all related documents) includes the following:
ONE (1) HPM MODEL MLH730-160 INJECTION MOLDING MACHINE WITH BIMETALLIC BARREL,
RECIPROCATING SCREW, 3/4" RADIUS NOZZLE, HYDRAULIC EJECTOR WITH 9/16" THRU HOLE
EJECTOR PLATE, HPM WRAP-AROUND TANK, ROBOT TAKE-OUT AND ALL ACCESSORIES AND
ATTACHMENTS.
ADDRESS FOR ALL NOTICES:
X.X. Xxx 0000, 0000 X.X. Xxxxxx Xxxxxx
Tualatin, Oregon 97062-2177
GUARANTY
U.S. BANCORP
In order to induce U.S. BANCORP LEASING & FINANCIAL - MACHINE TOOL FINANCE GROUP
(the "Creditor") to enter into one or more financing arrangements in the form of
leases or loans (referred to herein as the "Transaction(s)") with, or otherwise
directly or indirectly making property available to TOWER TECH, INC. (the
"Obligor"), and/or to induce Creditor to grant to Obligor such renewals,
extensions, forbearances, releases of collateral or other relinquishments of
rights, whether in connection with the Transaction(s) or otherwise, as Creditor
may in its sole discretion deem advisable, and in consideration of any
agreements heretofore or hereafter entered into between Creditor and Obligor
(any and all such notes, security agreements, loan agreements, lease agreements,
entered into between Obligor and Creditor together with any and all schedules
and riders thereto and any and all other instruments or agreements including,
without limitation, pledge agreements and assignments, executed and delivered by
Obligor in connection therewith, being hereinafter collectively called the
"Agreements"), and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, EACH OF THE UNDERSIGNED (EACH OF
WHOM IS HEREINAFTER CALLED A "GUARANTOR"), INTENDING TO BE LEGALLY BOUND, HEREBY
JOINTLY AND SEVERALLY GUARANTEES THE FULL, PROMPT, COMPLETE AND FINAL PAYMENT
AND PERFORMANCE OF ALL THE OBLIGOR'S OBLIGATIONS PURSUANT TO THE AGREEMENTS OR
IN ANY WAY ARISING THEREFROM AND ANY AND ALL OTHER OBLIGATIONS AND LIABILITIES
OF OBLIGOR TO CREDITOR, WHETHER NOW IN EXISTENCE OR ARISING HEREAFTER, AND
WHETHER DIRECT OR INDIRECT, CONTINGENT OR ABSOLUTE, MATURED OR UNMATURED,
SECURED OR UNSECURED, AND HOWEVER CONTRACTED OR ARISING (ALL SUCH OBLIGATIONS
AND LIABILITIES BEING HEREINAFTER CALLED THE "OBLIGATIONS").
Each Guarantor hereby promises to pay Creditor when due, on demand, all
indebtedness of any kind or nature emanating from the Agreements (including,
without limitation, if an event of default shall occur under the Agreements,
payment on demand of all unpaid sums to become due under the defaulted
Agreements for the entire term thereof), whether now or hereafter arising and
however and whenever evidenced-, and each Guarantor agrees to indemnify and hold
Creditor harmless from and against any and all losses, liabilities and costs
emanating from any failure of Obligor to fully, promptly and completely satisfy
the Obligations. For purposes hereof (i) "losses, liabilities and costs" shall
include (without limitation), all losses, liabilities, obligations, claims,
demands, judgments, costs and expenses of whatever kind or nature (including,
without limitation, attorneys' fees) and (ii) "emanating" from an event or cause
shall include (without limitation) in any way directly or indirectly being
caused by or in any other way arising out of such event or cause.
Each Guarantor hereby waives any notice of default or nonpayment or of late or
inadequate satisfaction in regard to the Obligations. In particular (and not in
limitation of the foregoing), each Guarantor hereby agrees that, in enforcing
this Guaranty, Creditor shall not be required (i) to demand payment of the
amount due (known as "demand"); (ii) to present for payment any evidence of the
Obligations (known as "presentment" or "presentment for payment"); (iii) to give
notice that amounts due have not been paid (known as "notice of dishonor"); or
(iv) to obtain an official certification of nonpayment (known as "protest") or
to give any Guarantor notice of any such "protest;" and each Guarantor hereby
waives demand, presentment, presentment for payment, notice of dishonor, protest
and notice of protest as aforesaid. Each Guarantor hereby further waives notice
of acceptance hereof and any and all other notices to which such Guarantor may
be entitled.
Each Guarantor hereby consents and agrees that without any further notice to, or
assent by Guarantor, the liability of Obligor or any other guarantor of the
Obligations may from time to time, in whole or in part, be extended, renewed,
continued, amended, modified, composed, accelerated, supplemented, compromised,
settled or released in Crudities sole discretion, and that any collateral for
any of the Obligations or for any guaranty thereof (including this Guaranty) may
from time to time, in whole or part, be exchanged, sold or surrendered in
Creditor's sole discretion. Each Guarantor hereby agrees that no such extension,
renewal, continuation, amendment, modification, composition, acceleration,
supplement, compromise, settlement, release, exchange, sale or surTender shall
in any way impair, affect or release the liability of any Guarantor hereunder or
constitute a waiver of any of Creditor's rights hereunder.
This Guaranty is unlimited, absolute, irrevocable and unconditional and shall
continue in full force and effect until all the Obligations shall have been
fully, completely and finally satisfied and paid. The obligations of each
Guarantor hereunder shall continue and survive the repossession of any equipment
or other property leased pursuant to the Agreements (or any property in which
Creditor has a security interest securing any of the Obligations) whether or not
any such repossession constitutes an "election of remedies" against the Obligor
or any other person. Each Guarantor agrees to be obligated hereunder
notwithstanding any termination of the Agreements in whole or part by operation
of law or any unenforceability or invalidity of the Agreements for any reason
whatsoever (including, without limitation, invalidity or voidness ab initio
and/or partial or complete unenforceability as a result of impossibility or
impracticability of performance or frustration of the purpose of the
Agreements). The obligations of the Guarantors hereunder are joint and several
and shall not be subject to any abatement, setoff, defense or counterclaim for
any cause whatsoever.
Each Guarantor hereby agrees that its obligations hereunder are direct and
primary and that Creditor may proceed directly and in the first instance against
each or any Guarantor or combination of Guarantors and have its remedy hereunder
without first being obliged to resort to any other right or remedy or security
for any of the Obligations. Each Guarantor hereby waives any right to require
Creditor to proceed against the Obligor or to proceed against any other
Guarantor or to proceed against any other guarantor of the Obligations. If there
shall be any securities for any of the Obligations or for the obligations of any
Guarantor hereunder, or for the obligations of any other guarantor of any of the
Obligations, Creditor may proceed against and/or enforce any or all of such
securities in whatever order it may, in its sole discretion, deem appropriate.
Any amount(s) received by Creditor from whatever source and applied by it to any
of the Obligations shall be applied in such order ofapplication as Creditor
shall, in its sole discretion, elect.
ADDRESS FOR ALL NOTICES:
X.X. Xxx 0000, 0000 X.X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
Initial: ss/HC
-----
In the event of any default in regard to any Guarantors obligations hereunder,
or in the event of death, incompetency, termination, dissolution or insolvency
of the Obligor, or if a receiver, liquidator or conservator be appointed for any
part of the property or assets of the Obligor, or if the Obligor makes an
assignment for the benefit of creditors, or if the Obligor shall file a
voluntary petition in bankruptcy or any involuntary petition in bankruptcy shall
be filed against it then, and in any such case, each Guarantor agrees to pay to
Creditor, upon demand, the full amount which would be payable hereunder by such
Guarantor if all the Obligations were then due and payable.
Notwithstanding any provision hereof or any provision of any other instrument or
agreement, or any presumption of applicable law or principle of legal
construction to the contrary: (i) nothing shall discharge or satisfy any
Guarantors liability hereunder except full, complete and final payment and
satisfaction of all the Obligations; (ii) each Guarantor hereby waives any and
all defenses to its liability hereunder including, without limitation, any
defense arising by reason of any cessation ofthe Obligor's business or any
bankruptcy, insolvency or business failure of the Obligor or any other person;
and (iii) no Guarantor shall have any right of subrogation against the Obligor,
and each Guarantor hereby waives any and all rights of subrogation it may have
against the Obligor, to enforce any right or remedy which Creditor has or may
hereafter have against the Obligor, and waives the benefits of, and any and all
rights to participate in, any security or securities now or hereafter held by
Creditor. It is expressly understood by each Guarantor that payments received by
Creditor from or on behalf of Obligor shall be solely for the benefit of
Creditor and shall not benefit the Guarantor in any way. Each Guarantor hereby
further acknowledges that such Guarantor is not and shall not be construed as a
"Creditor" of Obligor by virtue of this Guaranty.
Each Guarantor hereby represents and warrants to Creditor that all information
concerning such Guarantor, including (without limitation) financial statements
and other financial information, furnished to Creditor in connection with the
Agreements or any of the other Guaranteed Agreements, was true, complete and
accurate as of the date of delivery thereof to Creditor, and that all such
information remains true, complete and accurate, and that there have been no
material adverse changes in such Guarantors financial condition as of the date
hereof. In the event of any breach of any Guarantors representations and
warranties herein or any material adverse change in the financial condition of
any Guarantor, upon the request of Creditor, such Guarantor shall promptly
furnish to Creditor such additional security for the performance of such
Guarantor's obligations hereunder as Creditor may reasonably request.
No notice of termination of this Guaranty shall be effective unless and until
such notice shall be in writing and executed by Guarantor and shall have been
received at Creditor's principal corporate headquarters at X.X. Xxx 0000, 0000
X.X. Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000-0000; provided, however, that in the
event of such notice, this Guaranty shall continue in full force and effect with
regard to all Obligations created, existing or arising prior to the date of such
receipt. No modification hereof or amendment hereto and no waiver of any term or
provision hereof shall be valid unless in writing and signed by an authorized
officer of Creditor. No delay or failure on the part of Creditor in the exercise
of any right or remedy shall operate as a waiver thereof, and no single or
partial exercise by Creditor of any right or remedy shall preclude any other or
further exercise thereof or the exercise of any other right or remedy. No action
of Creditor permitted hereunder shall invalidate or in any way impair this
Guaranty. No waiver of any right or remedy hereunder shall constitute a waiver
of any other or further right or remedy hereunder.
Each Guarantor hereby consents and agrees that without any further notice to, or
assent by Guarantor, this Guaranty may be assigned by Creditor and reassigned,
in the sole discretion of Creditor or its assignee. As used herein, the term
"Creditor" includes Creditor and any successor or assign of Creditor. This
Guaranty shall be binding upon each Guarantor, and upon the legal successors,
representatives, and assigns of such Guarantor. Each and every waiver made
herein by any Guarantor is and shall be deemed to be and construed as an
absolute, irrevocable and unconditional waiver of the right waived.
This Guaranty is intended to be legal, valid, binding and enforceable in
accordance with its terms. Whenever possible, each term and provision of this
Guaranty shall be interpreted so as to be effective and to effectuate its intent
under applicable law. If any term or provision of this Guaranty shall be
unenforceable, invalid or prohibited in any jurisdiction under applicable law,
such term or provision shall be ineffective in such jurisdiction, but only to
the extent of such unenforceability, invalidity or prohibition, and the
remainder of such term or provision, and the other terms and provisions of the
Guaranty, shall not thereby be affected or impaired in such jurisdiction, nor
shall any of the terms or provisions of the Guaranty be thereby affected or
impaired in any way in any other jurisdiction.
This Guaranty shall be governed by the construed in accordance with Federal Law
and the laws of the State of Oregon, and that service of process by certified
mail, return receipt requested, will be sufficient to confer personal
jurisdiction over such Guarantor for purposes of litigating any actions arising
hereunder in the courts of such State. This Guaranty is in addition to, and not
in limitation or derogation of, any and all other guaranties of the Obligations
executed by any Guarantor. In the event of any conflict between the provisions
of this Guaranty and those of any such other guaranty, the provisions of this
Guaranty shall govern. Each Guarantor hereby agrees and acknowledges that time
is of the essence with regard to the performance of such Guarantors obligations
hereunder. This Guaranty shall take effect as a scaled instrument.
IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be duly
executed and delivered as of AUGUST 4, 1999.
Witness:
Print Name: Xxxx Xxxxxx
Address: Xx. 0 Xxx 000, Xxxxxxxxx, XX 00000
GUARANTOR'S SIGNATURE MAY
NOT BE WITNESSED BY GUARANTOR'S
SPOUSE OR OTHER FAMILY MEMBER
Xxxxxx Xxxxxx
ss/XXXXXX XXXXXX
----------------
SS# ###-##-####
ADDRESS FOR ALL NOTICES:
X.X. Xxx 0000, 0000 X.X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
Initial: ss/HC
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