Exhibit 10.21
XXXX OF SALE
This XXXX OF SALE is made and entered into as of the 21st day of March,
2001, by and between MagStar Technologies, Inc., a Minnesota corporation
("Seller"), and Activar Properties, Inc., a Minnesota corporation ("Buyer").
WITNESSETH:
WHEREAS, Buyer wishes to purchase, and Seller wishes to sell and convey
to Buyer, all of Seller's right, title and interest in and to the equipment
listed in the attached Xxxx Appraisal dated January 18, 2001, and located at 000
00xx Xxxxxx Xxxxx, Xxxxxxx, XX, as well as the equipment listed on the attached
invoices;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
1. Seller hereby irrevocably sells, grants, assigns, transfers, conveys,
delivers and sets over unto Buyer any and all of its right, title and
interest in the Assets, subject to the following liens, claims and
encumbrances: None.
2. Seller hereby represents, warrants and covenants that (a) it is the
owner of good, marketable title to the Assets, (b) the Assets are free
from all liens and encumbrances (except as listed above) and (c) Seller
has the right to sell and convey the Assets to Buyer. Seller shall
warrant and defend the sale of the Assets to Buyer against any and all
persons who claim title to the Assets, subject only to the encumbrances
listed above. Seller hereby indemnifies and holds Buyer harmless from,
against and in respect of (and on demand shall reimburse Buyer for) any
and all loss, liability or damage (including reasonable attorney's
fees) suffered or incurred by Buyer by reason of any untrue
representation, breach of warranty or nonfulfillment of any covenant by
Seller contained herein or in any certificate, document or instrument
delivered to Buyer pursuant hereto or in connection herewith.
3. This Xxxx of Sale shall be construed and interpreted, and the rights of
the parties determined in accordance with, the laws of the State of
Minnesota, without reference to conflicts of law principles thereunder.
4. All of the covenants and agreements contained herein shall apply to and
bind the Seller and benefit the Buyer and their respective successors
and assigns.
IN WITNESS WHEREOF, the parties hereto have executed and delivered, or
have caused this Xxxx of Sale to be duly executed and delivered by their
respective officers thereunto duly authorized, as of the day and year first
above written.
MAGSTAR TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx
Its: President
ACTIVAR PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
Its: President
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ____ day of
March, 2001, by Xxxxxxx X. Xxxx, President of MagStar Technologies, Inc.
/s/ Xxxxxxx X Xxxx
---------------------------------
Notary Public
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 21st day of
March, 2001, by Xxxxx X. Xxxxxxxx, President of Activar Properties, Inc.
/s/ Xxxxxxx X Xxxx
---------------------------------
Notary Public
MASTER EQUIPMENT LEASE AGREEMENT
By and Between
ACTIVAR PROPERTIES, INC. DBA XXXXXXXXX AGENCY (LESSOR)
and
MAGSTAR TECHNOLOGIES, INC. (LESSEE)
WITNESSETH:
For and in consideration of the mutual covenants and promises
hereinafter set forth, the parties hereto agree as follows:
1.) MASTER LEASE - Lessor hereby agrees to lease to Lessee, for use at
000 00xx Xxxxxx Xxxxx, Xxxxxxx, XX, and Lessee hereby agrees to lease from
Lessor the equipment described in Exhibit A to be hereinafter attached and made
a part hereof. This Master Lease shall be treated and for all purposes deemed to
be a separate individual written lease.
2.) TERM - The term of this Lease shall commence on March 21, 2001, and
shall end on the last day following the expiration of the number of months
designated in the attached Exhibit B as the lease term for the equipment leased.
3.) LEASE PAYMENTS - As payment for the rental of said equipment and
for the rendition of certain other services by Lessor as hereafter described,
Lessee shall pay a monthly charge as designated in the attached Exhibit B. The
first rental payment of interest only shall be due on April 1, 2001; the first
payment of principal and interest shall be due on May 1, 2001; and all
subsequent payments shall be made on the first day of each month thereafter.
4.) REPAIRS - Lessee, at its own cost and expense, shall keep the
equipment in good repair, condition, and good working order and shall furnish
any and all parts, mechanisms, and devices required to keep the equipment in
good working order. In making such repairs, Lessee shall use only parts approved
by the manufacturer or by the Lessor.
5.) INSURANCE - Lessee, at its expense, shall keep said equipment
insured, for the term of this Lease and any renewals or extensions thereof.
6.) INDEMNITY - Lessee shall indemnify Lessor against, and hold Lessor
harmless from, any and all claims, actions, suits, proceedings, costs, expenses,
damages and liabilities including reasonable attorneys' fees, arising out of,
connected with, or resulting from the equipment. Each party agrees that it will
give the other prompt notice of the assertion of any such claim or institution
of any such action, suit or proceeding.
7.) DEFAULT - If Lessee fails to pay any rent or other amount herein
provided when the same shall become due and payable, or if Lessee fails to
observe, keep or perform any other provisions of this Lease required to be
observed, kept, or performed by Lessee, or if any execution or other writ or
process shall be issued in any action or proceeding against Lessee, whereby the
equipment may be taken or distrained, Lessor shall have the right to exercise
any one or more of the following remedies:
(01) To xxx for and recover all rents, and other payments, then
accrued or thereafter accruing, with respect to the Lease.
(02) To take possession of the equipment without demand or notice,
wherever the same shall be located, without any court order or
other process of law. Lessee hereby waives any and all damage
occasioned by such taking of possession. Any said taking or
possession shall not constitute a termination of this Lease
unless Lessor expressly so notifies Lessee in writing.
(03) To terminate this Lease.
(04) To pursue any other remedy at law or in equity.
Notwithstanding any said repossession or any other action which Lessor may take,
Lessee shall be and remain liable for the full performance of all obligations on
its part to be performed under this Lease; provided, however, that if Lessor is
able to obtain any monies for said equipment from the re-rental or sale thereof,
said monies, less expenses, shall be credited to the last payments of Lessee's
obligation.
8.) BANKRUPTCY - Neither this Lease nor any interest therein is
assignable or transferable by operation of law. If any proceeding under the
Bankruptcy Act, as amended, is commenced by or against Lessee, or if Lessee is
adjudged insolvent, or if Lessee makes any assignment for the benefit of his
creditors, or if a writ of attachment or execution is levied on the equipment
and is not released or satisfied within ten (10) days thereafter, or if a
receiver is appointed in any proceeding or action to which Lessee is a party
with authority to take possession or control of the subject property, Lessor
shall have and may exercise any one or more of the remedies set forth in
Paragraph 7 hereof; and this Lease shall, at the option of Lessor without
notice, immediately terminate and shall not be treated as an asset of Lessee
after the exercise of said option.
9.) CONCURRENT REMEDIES - No right or remedy herein conferred upon or
reserved to Lessor is exclusive of any other right or remedy herein or by law or
in equity provided or permitted; but each shall be cumulative of every other
right or remedy given hereunder or now or hereafter existing at law or in equity
or by status or otherwise, and may be enforced concurrently therewith or from
time to time.
10.) ASSIGNMENT - Without prior written consent of Lessor, Lessee shall
not:
(01) Assign, transfer, pledge or hypothecate this Lease, the
equipment or any part thereof, or any interest therein; or
(02) Sublet or lend the equipment or any part thereof, or permit
the equipment or any part thereof to be used by anyone other
than Lessee or Lessee's employee(s).
Consent to any of the foregoing prohibited acts applied only in the given
instance, and is not a consent to any subsequent like acts by Lessee or any
other person. Subject always to the foregoing, this Lease insures to the benefit
of, and is binding upon, the heirs, legatees, personal representatives,
successors and assigns of the parties hereto.
11.) NON-WAIVER - No covenant or condition of this Lease can be waived
except by the written consent of Lessor. Forbearance of indulgence by Lessor in
any regard whatsoever shall not constitute a waiver of the covenant or condition
to be performed by Lessee to which the same may apply, and, until complete
performance by Lessee of said covenant or condition, Lessor shall be entitled to
invoke any remedy available to Lessor under this Lease or by law or in equity
despite said forbearance or indulgence.
12.) NOTICES - Service of all notices under this Agreement shall be
sufficient if given personally or mailed by registered mail to the party
involved at its respective address. Any such notice mailed to the party's
address shall be effective when deposited in the United States mail, duly
addressed and with postage prepaid.
13.) LEASE EXTENSION/PURCHASE OPTION - Provided that Lessee is not in
default, Lessee shall have the right at the expiration of the term of this Lease
to extend the Lease on a month-to-month basis or purchase the equipment. Such
equipment may be purchased on an As-In-Where-Is basis, for the "fair market
value". Lessee shall give Lessor written notice sixty (60) days prior to the end
of the original Lease term of its election to exercise the purchase option or
extend the Lease on a month-to-month basis. "Fair market value" shall be such
amount as is mutually agreed upon by Lessor and Lessee; provided, however, that
a fair market value can be established by or referral to an outside third party
source. If parties are unable to agree upon a fair market value of the equipment
within thirty (30) days after receipt by Lessor of the notice of Lessee's
election to exercise the purchase option, the following arbitration procedures
shall apply:
Each party within thirty-five (35) days after receipt by Lessor of the
notice of Lessee's election to exercise the purchase option shall elect
an arbitrator and the two arbitrators so chosen shall choose a third by
notice in writing delivered to all parties. The three arbitrators so
chosen shall, within ten (10) days after selection of the third
arbitrator, determine the fair market value and deliver such
determination in writing to each party, which determination shall be
final and binding upon all the parties to this Agreement.
14.) CLAIMS - Lessor appoints and constitutes Lessee as its agent and
attorney-in-fact during the term of this Lease to assert and enforce at the sold
cost and expense of Lessee, whatever claims and rights Lessor may have as owner
of the equipment against any vendors, dealers, manufacturer's suppliers or
contractors in respect thereof.
15.) ENTIRE AGREEMENT - This instrument and the attached exhibit or
exhibits constitutes the entire agreement between Lessor and Lessee; and it
shall not be amended, altered or changed except by written agreement signed by
the parties hereto.
IN WITNESS WHEREOF, the parties have executed these presents to be
effective as of this 21st day of March, 2001.
ACTIVAR PROPERTIES, INC. dba
XXXXXXXXX AGENCY
By /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxx, President
MAGSTAR TECHNOLOGIES, INC.
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Xxxxxxx X. Xxxx, President
EXHIBIT A
EQUIPMENT
Per attached Xxxx Appraisal dated January 18, 2001 and attached
invoices.
EXHIBIT B
Total amount of equipment lease is $389,880.00
Term of Lease is twenty-five (25) months, with the first payment being
interest only and the remaining monthly payments of principal and interest in
the amount of $17,399.43.
MASTER EQUIPMENT LEASE AGREEMENT
By and Between
ACTIVAR PROPERTIES, INC. DBA XXXXXXXXX AGENCY (LESSOR)
and
MAGSTAR TECHNOLOGIES, INC. (LESSEE)
WITNESSETH:
For and in consideration of the mutual covenants and promises
hereinafter set forth, the parties hereto agree as follows:
1.) MASTER LEASE - Lessor hereby agrees to lease to Lessee, for use at
000 00xx Xxxxxx Xxxxx, Xxxxxxx, XX, and Lessee hereby agrees to lease from
Lessor the equipment described in Exhibit A to be hereinafter attached and made
a part hereof. This Master Lease shall be treated and for all purposes deemed to
be a separate individual written lease.
2.) TERM - The term of this Lease shall commence on March 21, 2001, and
shall end on the last day following the expiration of the number of months
designated in the attached Exhibit B as the lease term for the equipment leased.
3.) LEASE PAYMENTS - As payment for the rental of said equipment and
for the rendition of certain other services by Lessor as hereafter described,
Lessee shall pay a monthly charge as designated in the attached Exhibit B. The
first rental payment of interest only shall be due on April 1, 2001; the first
payment of principal and interest shall be due on May 1, 2001; and all
subsequent payments shall be made on the first day of each month thereafter.
4.) REPAIRS - Lessee, at its own cost and expense, shall keep the
equipment in good repair, condition, and good working order and shall furnish
any and all parts, mechanisms, and devices required to keep the equipment in
good working order. In making such repairs, Lessee shall use only parts approved
by the manufacturer or by the Lessor.
5.) INSURANCE - Lessee, at its expense, shall keep said equipment
insured, for the term of this Lease and any renewals or extensions thereof.
6.) INDEMNITY - Lessee shall indemnify Lessor against, and hold Lessor
harmless from, any and all claims, actions, suits, proceedings, costs, expenses,
damages and liabilities including reasonable attorneys' fees, arising out of,
connected with, or resulting from the equipment. Each party agrees that it will
give the other prompt notice of the assertion of any such claim or institution
of any such action, suit or proceeding.
7.) DEFAULT - If Lessee fails to pay any rent or other amount herein
provided when the same shall become due and payable, or if Lessee fails to
observe, keep or perform any other provisions of this Lease required to be
observed, kept, or performed by Lessee, or if any execution or other writ or
process shall be issued in any action or proceeding against Lessee, whereby the
equipment may be taken or distrained, Lessor shall have the right to exercise
any one or more of the following remedies:
(01) To xxx for and recover all rents, and other payments, then
accrued or thereafter accruing, with respect to the Lease.
(02) To take possession of the equipment without demand or notice,
wherever the same shall be located, without any court order or
other process of law. Lessee hereby waives any and all damage
occasioned by such taking of possession. Any said taking or
possession shall not constitute a termination of this Lease
unless Lessor expressly so notifies Lessee in writing.
(03) To terminate this Lease.
(04) To pursue any other remedy at law or in equity.
Notwithstanding any said repossession or any other action which Lessor may take,
Lessee shall be and remain liable for the full performance of all obligations on
its part to be performed under this Lease; provided, however, that if Lessor is
able to obtain any monies for said equipment from the re-rental or sale thereof,
said monies, less expenses, shall be credited to the last payments of Lessee's
obligation.
8.) BANKRUPTCY - Neither this Lease nor any interest therein is
assignable or transferable by operation of law. If any proceeding under the
Bankruptcy Act, as amended, is commenced by or against Lessee, or if Lessee is
adjudged insolvent, or if Lessee makes any assignment for the benefit of his
creditors, or if a writ of attachment or execution is levied on the equipment
and is not released or satisfied within ten (10) days thereafter, or if a
receiver is appointed in any proceeding or action to which Lessee is a party
with authority to take possession or control of the subject property, Lessor
shall have and may exercise any one or more of the remedies set forth in
Paragraph 7 hereof; and this Lease shall, at the option of Lessor without
notice, immediately terminate and shall not be treated as an asset of Lessee
after the exercise of said option.
9.) CONCURRENT REMEDIES - No right or remedy herein conferred upon or
reserved to Lessor is exclusive of any other right or remedy herein or by law or
in equity provided or permitted; but each shall be cumulative of every other
right or remedy given hereunder or now or hereafter existing at law or in equity
or by status or otherwise, and may be enforced concurrently therewith or from
time to time.
10.) ASSIGNMENT - Without prior written consent of Lessor, Lessee shall
not:
(01) Assign, transfer, pledge or hypothecate this Lease, the
equipment or any part thereof, or any interest therein; or
(02) Sublet or lend the equipment or any part thereof, or permit
the equipment or any part thereof to be used by anyone other
than Lessee or Lessee's employee(s).
Consent to any of the foregoing prohibited acts applied only in the given
instance, and is not a consent to any subsequent like acts by Lessee or any
other person. Subject always to the foregoing, this Lease insures to the benefit
of, and is binding upon, the heirs, legatees, personal representatives,
successors and assigns of the parties hereto.
11.) NON-WAIVER - No covenant or condition of this Lease can be waived
except by the written consent of Lessor. Forbearance of indulgence by Lessor in
any regard whatsoever shall not constitute a waiver of the covenant or condition
to be performed by Lessee to which the same may apply, and, until complete
performance by Lessee of said covenant or condition, Lessor shall be entitled to
invoke any remedy available to Lessor under this Lease or by law or in equity
despite said forbearance or indulgence.
12.) NOTICES - Service of all notices under this Agreement shall be
sufficient if given personally or mailed by registered mail to the party
involved at its respective address. Any such notice mailed to the party's
address shall be effective when deposited in the United States mail, duly
addressed and with postage prepaid.
13.) LEASE EXTENSION/PURCHASE OPTION - Provided that Lessee is not in
default, Lessee shall have the right at the expiration of the term of this Lease
to extend the Lease on a month-to-month basis or purchase the equipment. Such
equipment may be purchased on an As-In-Where-Is basis, for the "fair market
value". Lessee shall give Lessor written notice sixty (60) days prior to the end
of the original Lease term of its election to exercise the purchase option or
extend the Lease on a month-to-month basis. "Fair market value" shall be such
amount as is mutually agreed upon by Lessor and Lessee; provided, however, that
a fair market value can be established by or referral to an outside third party
source. If parties are unable to agree upon a fair market value of the equipment
within thirty (30) days after receipt by Lessor of the notice of Lessee's
election to exercise the purchase option, the following arbitration procedures
shall apply:
Each party within thirty-five (35) days after receipt by Lessor of the
notice of Lessee's election to exercise the purchase option shall elect
an arbitrator and the two arbitrators so chosen shall choose a third by
notice in writing delivered to all parties. The three arbitrators so
chosen shall, within ten (10) days after selection of the third
arbitrator, determine the fair market value and deliver such
determination in writing to each party, which determination shall be
final and binding upon all the parties to this Agreement.
14.) CLAIMS - Lessor appoints and constitutes Lessee as its agent and
attorney-in-fact during the term of this Lease to assert and enforce at the sold
cost and expense of Lessee, whatever claims and rights Lessor may have as owner
of the equipment against any vendors, dealers, manufacturer's suppliers or
contractors in respect thereof.
15.) ENTIRE AGREEMENT - This instrument and the attached exhibit or
exhibits constitutes the entire agreement between Lessor and Lessee; and it
shall not be amended, altered or changed except by written agreement signed by
the parties hereto.
IN WITNESS WHEREOF, the parties have executed these presents to be
effective as of this 21st day of March, 2001.
ACTIVAR PROPERTIES, INC. dba
XXXXXXXXX AGENCY
By /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxx, President
MAGSTAR TECHNOLOGIES, INC.
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Xxxxxxx X. Xxxx, President
EXHIBIT A
EQUIPMENT
Per attached Xxxx Appraisal dated January 18, 2001 and attached
invoices.
EXHIBIT B
Total amount of equipment lease is $1,522,630.00
Term of Lease is sixty-one (61) months, with the first payment being
interest only and the remaining monthly payments of principal and interest in
the amount of $30,279.37.
