Exhibit 10.14
Lease # 24618
M&I FIRST NATIONAL LEASING CORP.
LEASE OF PERSONAL PROPERTY DATED April 25, 2001
LESSEE TecStar Mfg. Company/Plastics Mfg. Company as Co-Lessee
X000 X00000 Xxxxxxxxxx Xxx
Xxxxxxxxxx XX 00000
TERMS AND CONDITIONS OF LEASE
This Lease of Personal Property is effective as of the date listed above, and
is made and entered into by and between M&I First National Leasing Corp.
(herein the "LESSOR"), and the Undersigned, see lessee above, (herein the
"LESSEE"). If more than one party executes the Agreement as LESSEE, each
shall be jointly and severally liable hereunder.
1. LEASE. Lessor hereby leases to lessee and lessee hereby leases and rents
from lessor personal property as set forth in the "Equipment Location and
Description" section of the Lease of Personal Property, said property with all
replacement parts, additions, repairs and accessories incorporated therein,
and/or affixed thereto, being referred to as "equipment."
2. LESSOR will, subject to the terms of this lease, purchase the equipment as
set forth in the "Equipment Location and Description" section of the Lease of
Personal Property, and simultaneously lease such equipment to lessee. Lessee
acknowledges either (a) that lessee has approved any written Supply Contract
(as defined by the Uniform version of the Uniform Commercial Code (U.C.C.)
Section 2A-103(y), (as approved by the American Law Institute on the date of
this Lease) covering the equipment purchase from the "supplier" (as defined by
U.C.C. Section 2(A-103(x) thereof) for lease to lessee, or (b) that lessor
has informed or advised lessee, in writing either previously or by this lease,
of the following: (i) the identity of the supplier; (ii) that the lessee may
have rights under the Supply Contract; and (iii) that the lessee may contact
the supplier for a description of any such rights lessee may have under the
Supply Contract.
3. RENTAL. Lessee agrees to begin making rental payments to the lessor for
the initial term of this lease as specified in the "Payment Schedule" section
of the Lease of Personal Property. Payment of said rental shall be made on
the dates specified at the office of lessor, 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000 or to such other person, firm or corporation at
such other place as lessor may from time to time designate in writing. In
addition to said monthly rental lessee shall pay the amount of any personal
property taxes, sales/use taxes, or any other taxes and all maintenance,
insurance and other costs and expenses as hereinafter set forth, payment
thereof to be made when due to the person or entity entitled thereto.
4. SELECTION OF EQUIPMENT - NO WARRANTIES BY LESSOR AS TO MERCHANTABILITY OR
FITNESS: LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE TYPE, QUANTITY AND
SUPPLIER OF THE EQUIPMENT THAT IT HAS REQUESTED LESSOR TO PURCHASE THE SAME
FOR LEASING TO LESSEE. LESSEE AGREES THAT THE EQUIPMENT AND EACH PART OR UNIT
THEREOF IS OF A DESIGN, SIZE, QUALITY AND CAPACITY REQUIRED BY LESSEE AND IS
SUITABLE FOR ITS PURPOSES. LESSEE FURTHER AGREES THAT LESSOR HAS NOT MADE AND
DOES NOT HEREBY MAKE ANY REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR
-1-
IMPLIED AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE; AND
LESSOR DOES HEREBY SPECIFICALLY DISCLAIM ANY WARRANTY EXPRESS OR IMPLIED OF
MERCHANTABILITY OR FITNESS, OR WITH RESPECT TO THE CONDITION, QUALITY,
DURABILITY, CAPABILITY OR SUITABILITY OF EQUIPMENT OR AGAINST ANY PATENT OR
LATENT DEFECTS THEREIN OR THE ABSENCE OF INFRINGEMENT UPON ANY PATENTS,
COPYRIGHTS, TRADEMARKS, LICENSES, OR OTHER INTELLECTUAL PROPERTY RIGHTS.
LESSEE SPECIFICALLY WAIVES ANY CLAIM AGAINST LESSOR FOR ANY LIABILITY, CLAIM,
LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY
BY THE EQUIPMENT OR THE INADEQUACY THEREOF FOR ANY PURPOSE OR FOR ANY
DEFICIENCY OR DEFECT THEREIN, OR FOR ANY REPAIRS, SERVICING OR ADJUSTMENTS
THERETO, OR ANY LOSS OF BUSINESS, OR FOR ANY DAMAGE WHATSOEVER OR HOWSOEVER
CAUSED. LESSEE FURTHER AGREES TO ACCEPT DELIVERY OF THE EQUIPMENT AND THAT
THE VALIDITY OF THIS LEASE SHALL NOT BE AFFECTED BY ANY DELAY IN SHIPMENT BY
THE SUPPLIER. NO DEFECT OF THE EQUIPMENT SHALL RELIEVE LESSEE OF THE
OBLIGATION TO PAY RENT OR PERFORMANCE OF OTHER TERMS OF THIS LEASE. LESSEE
HEREBY AUTHORIZES LESSOR TO ADD TO THIS LEASE THE SERIAL NUMBER OF EACH ITEM
OF EQUIPMENT DELIVERED, THE DATE OF SHIPMENT AND OTHER MATERIAL INFORMATION.
LESSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON IT AGAINST LESSOR
BY SECTIONS 508 AND 522 OF ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE OR
COMPARABLE PROVISIONS OF APPLICABLE LAW.
5. TERM OF LEASE. This lease shall commence on the "Commencement Date of
Lease" specified in the Lease of Personal Property and shall continue until
the total "Number of Rent Payments" as specified in the "Payment Schedule"
section of the Lease of Personal Property, shall have been made; but in any
event, the term of this lease shall expire at the end of fifteen years from
the date hereof.
6. LEASE DEPOSIT. Lessor acknowledges that lessee has paid with the
execution of this lease the sum specified under "lease deposit" in the
"Payment Schedule" section of the Lease of Personal Property, to be held by
lessor as a lease deposit and not as advance rental. If lessee at the
expiration of this lease or any renewal or extension hereof:
(a) shall not be in default hereunder or under any other lease in effect
between the parties, and
(b) shall have paid to lessor all amounts due to lessor, and
(c) shall have returned to lessor the equipment in the condition provided in
Paragraph 9 hereof, or made such other disposition thereof as may be directed
by lessor.
Lessor shall thereupon refund lessee the lease deposit without interest. In
the event, however, of any default at any time in any of the terms, provisions
and conditions hereof or any other lease between the parties, or should lessee
fail to return the equipment in the condition and at the time required under
said Paragraph 9, lessor may, but shall not be obligated to, apply the lease
deposit to cure such default in which event lessee shall promptly restore the
lease deposit to the full amount specified above. Lessor shall also have the
right and privilege at its discretion to apply the lease deposit or any
portion thereof to any other lease(s) outstanding between lessor, and lessee
to cure a default in such lease(s) or to apply to any deficiency arising out
of such other lease(s).
-2-
7. LOCATION AND RIGHT OF INSPECTION. The equipment at all times shall be
located at the address of Lessee specified herein or such other place as shall
be mutually agreed upon between lessor and lessee. Lessor shall at any and
all times during business hours have the right to enter into and upon the
premises where the equipment may be located for the purpose of inspecting the
same or observing its use. Lessee shall not move the equipment from the
location in which said equipment shall be first delivered for use, except with
the written consent of lessor. Lessee shall promptly advise lessor of any
circumstances which may in any manner affect any item of equipment or in any
manner affect lessor's title thereto.
8. TITLE AND USE. Title to all of said equipment shall at all times be
solely in lessor or its assignee, and lessee shall have no interest or claims
thereto or therein except as herein provided. Lessee shall, however, unless
default shall occur as hereinafter provided have the right to possession of
said equipment and the quiet enjoyment thereof. Lessee shall at all times use
the equipment in a careful and proper manner and shall comply with all laws,
ordinances and regulations in any manner relating to the possession, use or
maintenance of the equipment, and shall if directed by lessor affix to said
equipment in a prominent place and maintain thereon any labels, plates or
other identifying markings indicating that the equipment is the property of
lessor. Lessee will not sublet, mortgage, pledge, sell or otherwise encumber
or dispose of equipment or its interest therein.
9. OPERATION OF EQUIPMENT. Lessee will use said equipment in compliance with
all municipal, state and federal regulatory agency requirements only in the
normal course of its business and only for the purposes for which said
equipment was designed. Lessee assumes all risks and liability for the
equipment and for the use, possession, operation, maintenance, storage and
condition thereof, and for injuries or death resulting to persons and damage
resulting to property arising from or incident to such use, operation,
possession, maintenance, storage and condition, whether such injuries, death
or damage be to agents or employees of lessee or their property, or to third
parties or their property. Lessee will save and hold lessor harmless from all
losses, damages, claims, penalties, liabilities and expenses including
attorney's fees of whatsoever nature arising or incurred because of or
incident to the use, possession, operation, maintenance, storage and condition
of said equipment, and lessee will save and hold lessor harmless from any
liability to person or property caused by the sole negligence of the lessor or
its agents or caused by joint negligence of the lessor or its agents and one
or more parties. Upon expiration or termination of this lease, lessee at its
expense shall immediately return said equipment to lessor at such place as
lessor may designate in the same condition as when received, reasonable wear,
tear and reasonable depreciation resulting from proper use thereof alone
excepted.
10. REPAIRS AND ALTERATIONS. Lessee will keep and maintain equipment in good
and working order and shall supply and install all replacement parts and
accessories when required to maintain the leased equipment in good working
condition, which parts and accessories shall be and become the sole property
of lessor. Lessee shall not, without the prior written consent of lessor,
make any alterations, modifications, additions, subtractions or improvements
to the equipment, but if so authorized by lessor, any such additions,
subtractions or improvements shall become the property of lessor and shall be
deemed to be a part of the leased equipment.
11. INSURANCE. Lessee shall keep the equipment insured against all risks of
loss or damage from every cause whatsoever for not less than the full
replacement value thereof, as determined by lessor. Lessee shall also
maintain, while lessee is in possession of the leased equipment, public
liability and property insurance, in an amount determined by lessor, but in
which the limits of public liability shall not be less than Two Million
($2,000,000) Dollars per person and Two Million ($2,000,000) Dollars per
accident, and in which the property damage liability shall not be less than
-3-
Two Million ($2,000,000) Dollars, unless other limits are agreed to in writing
between lessor and lessee, protecting and indemnifying lessor against any
injury to person or any damage to property arising by reason of the use,
operation or maintenance of the equipment, and lessee shall, in addition, if
requested by lessor, maintain products liability insurance in such an amount
as shall be required by lessor and shall maintain in full force and effect at
all times while lessee is in possession of the equipment, xxxxxxx'x
compensation insurance which shall cover any and all claims for injury to any
xxxxxxx, employee, servant or agent of lessee arising through the use,
operation or maintenance of the equipment. All said insurance shall be in
form and amount and with companies approved by lessor, and shall be in the
names of lessor and lessee as their interest may appear. Lessee shall pay the
premiums therefor and deliver said policies, or evidence thereof, to lessor.
Each insurer shall agree, by endorsement upon the policy or policies issued by
it or by independent instrument furnished to lessor, that it will give lessor
thirty (30) days written notice before the policy in question shall be altered
or cancelled. The proceeds of such insurance, at the option of lessor, shall
be applied (a) toward the replacement, restoration or repair of the equipment,
or (b) toward payment of the obligations of lessee hereunder. Lessee hereby
appoints lessor as lessee's attorney-in-fact to make claim for, receive
payment of, and execute and endorse all documents, checks or drafts for, loss
or damage under any said insurance policy.
12. TAXES. Lessee shall keep the equipment free and clear of all levies,
liens and encumbrances and shall pay all license fees, registration fees,
assessments, charges and taxes (municipal, state and federal) including
personal property taxes and any sales, use, or other transactional tax which
may now or hereafter be imposed in connection with the lease, possession or
use of the equipment, and including any penalties, interest, or delinquency
charges accruing by reason of lessee's non-payment. In addition, lessee
agrees to pay all expenses including legal fees where, with lessee's consent,
the validity or amount of any tax or assessment shall be challenged. The use
of the term "sales tax" in this document does not mean to imply that this is a
"sale" but some jurisdictions refer to the term interchangeably with "use
tax." The parties acknowledge that this is a true lease.
13. LESSOR'S RIGHT TO PAY INSURANCE PREMIUMS AND TAXES. In case of failure
of lessee to procure or maintain said insurance or to pay said fees,
assessments, charges and taxes, all as herein specified, lessor shall have the
right, but shall not be obligated, to effect such insurance, or pay said fees,
assessments, charges and taxes, as the case may be. In that event, the cost
thereof shall be repayable to lessor with the next installment of rent, and
failure to repay the same shall carry with it the same consequence, including
the late charge and interest provided in Paragraph 20 hereof.
14. LOSS AND DAMAGE. Lessee shall bear the entire risk of loss, theft,
damage or destruction of equipment from any cause whatsoever; and no loss,
theft, damage or destruction of equipment shall relieve lessee of the
obligation to pay rent or of any other obligation under this lease. In the
event of damage to any item of equipment, lessee shall immediately place the
same in good repair. If lessor determines that any item of equipment is lost,
stolen, destroyed or damaged beyond repair, lessee, at the option of lessor,
will: (a) replace the same with like equipment in good repair, or (b) pay
lessor in cash all of the following: (i) all amounts then owed by lessee to
lessor under this lease, (ii) an amount equal to twenty percent (20%) of the
actual cost of said item, (iii) the unpaid balance of the total rent for the
initial term of this lease attributable to said item, less any proceeds of
insurance thereon received by lessor, and (iv) any license fees, registration
fees, assessments, charges and taxes (municipal, state and federal) including
personal property taxes and any sales, use, or other transactional tax, and
including any penalties, interest, or delinquency charges, that have accrued,
will be assessed, or are otherwise due and owing in connection with the lease,
possession or use of the equipment. Upon lessor's receipt of such payment,
lessee shall be entitled to whatever interest lessor may have in said item, in
its then condition and location, without warranties, express or implied. The
-4-
parties hereto agree that the sum of the amount numbered (ii) and (iii) will
equal the fair value of said item on the date of such loss, theft, damage or
destruction.
15. DEFAULT. (a) If lessee fails to pay any rent or other amount herein
provided within ten (10) days after the same is due and payable, or if lessee
fails to perform any other provision hereof within ten (10) days after notice
thereof from lessor, or if lessee dies or ceases to exist, or if lessee is
adjudicated a bankrupt, suspends business, becomes insolvent, makes an
assignment for the benefit of creditors or enters into or petitions for a
creditor's arrangement or if an attachment be levied or a lien be filed
against any of lessee's property or against equipment or if a receiver be
appointed for any of lessee's property or should the lessee fail to use such
equipment strictly in compliance with all municipal, state and federal
regulatory agency requirements then and upon the happening of any of such
events the entire balance of the rent called for by this lease shall, at the
election of lessor, become forthwith due and owing or any guarantor of this
lease defaults on any obligation to lessor or any of the above listed events
of default occur with respect to any guarantor or any such guarantor files or
has filed against it a petition under bankruptcy law; and lessor shall have
the right, but shall not be obligated, to exercise any one or more of the
following remedies: (i) xxx for and recover all rents and other amounts then
accrued, due and owing, or thereafter accruing under this lease; including the
estimated residual value for the equipment if such equipment has not been
returned to or has been disposed by lessor as set forth herein and including
"taxes" described in Paragraph 12 of this document; (ii) take possession of
the equipment and for the purpose thereof may enter the premises on which
equipment is located without court order or other process of law (damages
occasioned by such taking are expressly waived by lessee), and thereupon
lessee's right to possession and use of equipment shall terminate, but lessee
shall be and remain liable for the total rent for the term as set forth in
Paragraph 5 hereof; (iii) sell or lease any or all items of equipment at
public or private sale for cash or on credit, or, if leased, to such persons
and upon such terms as lessor shall elect, and recover from lessee all costs
of taking possession, storing, repairing and selling or leasing equipment,
together with an amount equal to ten percent (10%) of the actual cost to
lessor of the items of equipment sold or leased and the unpaid balance of the
total rent for the initial term of this lease attributable to the items of
equipment sold or leased less the net proceeds of such sale or the total rent
under such lease; (iv) terminate this lease as to any or all items of
equipment; (v) in the event lessor elects to terminate this lease as to any or
all items of equipment, to recover from lessee as to each item subject to such
termination, the worth at the time of such termination, of the excess, if any,
of the amount of rent reserved herein for said item for the balance of the
term hereof over the then reasonable rental value of said item for the same
period of time.
(b) No right or remedy conferred upon or reserved to lessor by this lease
shall be exclusive of any other right or remedy herein or by law provided; all
rights and remedies conferred upon lessor by this lease or by law shall be
cumulative and in addition to every other right or remedy available to lessor.
(c) In the event of any default on the part of lessee, lessee shall pay in
addition to any late payment charges that may be due under Paragraph 20
hereof, all costs, expenses and disbursements incurred by lessor in exercising
its rights or remedies hereunder or enforcing any of the provisions or terms
hereof, including attorneys' fees and court costs, if lessor shall place the
matter with an attorney for collection and enforcement.
(d) Should lessor be in default hereunder as to any item of equipment, lessee
may not, because of such default, terminate this lease as to any other item of
equipment.
-5-
(e) In the event lessor shall elect to xxx for and recover all rents and
other amounts then due or thereafter accruing under this Lease or any
extension thereof, such accelerated rental shall be discounted at an annual
rate of four percent (4%).
(f) Time is of the essence hereof.
16. NO ASSIGNMENT BY LESSEE. Without the prior written consent of lessor,
lessee shall not (a) assign, transfer, pledge or hypothecate this lease, the
equipment or any part thereof, or any interest therein, or (b) sublet or rent
the equipment or any part thereof or permit the equipment or any part thereof
to be used by anyone other than lessee or lessee's employees. Consent to any
of the foregoing prohibited acts applies only in the given instance; and is
not a consent to any subsequent like act by lessee or any other person.
17. LESSOR'S ASSIGNMENT. Lessee acknowledges and understands that lessor may
assign this lease to a bank or other financial institution and that such
assignee shall be entitled to all of the benefits of this lease including all
credit and financial information that lessee shall have theretofore or
thereafter submitted to lessor. In connection therewith lessee agrees: (a) to
recognize any such assignment upon receipt of written notice thereof; (b) to
accept the directions, demands or consents of such assignee in place of those
of lessor; (c) to pay all rent hereunder as directed by such assignee and not
to terminate this lease, notwithstanding any default on the part of lessor or
any other liability or obligation on the part of lessor to lessee whether or
not arising hereunder; (d) not to require such assignee to perform any duty,
covenant or condition required to be performed by lessor, all rights of lessee
in connection therewith being hereby waived as to such assignee, provided that
nothing hereinbefore contained shall relieve lessor of its obligations to
lessee hereunder; (e) not to set up against such assignee any defenses,
setoffs or counterclaims which it may have against lessor in regard to the
payment of rent hereunder.
18. WARRANTIES. (a) Lessor may request the supplier to authorize lessee to
enforce in its own name all warranties, agreements or representations, if any,
which may be made by the supplier to lessee or lessor, (BUT NO DEFECT,
UNMERCHANTABILITY, OR UNFITNESS OF THE EQUIPMENT SHALL RELIEVE LESSEE OF THE
OBLIGATION TO PAY RENT OR OF ANY OTHER OBLIGATION UNDER THIS LEASE),
(b) Lessor covenants that subject to the terms and conditions of this lease,
lessee shall peaceably and quietly hold, possess and use equipment during the
term of this lease.
19. PERSONAL PROPERTY. The equipment is, and shall at all times be and
remain, personal property notwithstanding that the equipment or any part
thereof may now be, or hereafter become, in any manner affixed or attached to,
or imbedded in, or permanently resting upon, real property or any building
thereon, or attached in any manner to what is permanent as by means of cement,
plaster, nails, bolts, screws or otherwise.
20. LATE PAYMENT. Should lessee fail to pay any part of the rent herein
reserved or any other sum required to be paid by lessee to lessor within 10
days after the due date thereof, lessee shall pay unto lessor a charge of
$10.00 for each month or part thereof for which said rent or other sum shall
be delinquent which lessee acknowledges is a reasonable charge to cover
lessor's extra expense. In addition, lessee shall pay to lessor interest on
such delinquent payment from the due date thereof until paid at the rate of
18% per annum.
21. OFFSET. Lessee hereby waives any and all existing and future claims and
offsets, against any rent or other payments due hereunder; and agrees to pay
the rent and other amounts hereunder regardless of any offset or claim which
-6-
may be asserted by lessee or on its behalf. Lessee hereby further
acknowledges that the manufacturer or vendor of the leased equipment including
their agents and employees, were at no time and are not now the agent or under
the supervision of the lessor, nor was or is the lessor in any manner, the
agent of the manufacturer or vendor.
22. NON WAIVER. No covenant or condition of this Lease can be waived except
by the written consent of lessor. Forbearance or 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.
23. NO ABATEMENT IN RENT. THIS LEASE IS IRREVOCABLE FOR THE FULL TERM HEREOF
AND UNTIL THE AGGREGATE RENTALS PROVIDED FOR HEREIN HAVE BEEN PAID BY LESSEE.
Rent shall not xxxxx during the term hereof because lessee's right to
possession of equipment has terminated, or because equipment has been
repossessed, or for any other reason.
24. NOTICES. Service of all notices under this agreement shall be sufficient
if given personally or mailed to the party involved at its respective address
hereinbefore set forth, or at such address as such party may provide in
writing from time to time. Any such notice mailed to such address shall be
effective when deposited in the United States mail, duly addressed and with
postage prepaid.
25. OTHER DOCUMENTS. Should lessee be domiciled or reside in a state which
has adopted the Uniform Commercial Code "Code" or if the equipment shall be
located in such state, then, if at any time this transaction shall be
construed to be a security transaction, this Lease shall be deemed to be the
security agreement, and lessor shall be the secured party herein and lessee
the debtor. Lessee agrees to execute and deliver to lessor contemporaneously
with the execution hereof, or at any time during the existence of this Lease
if requested by lessor to do so, a financing statement to comply with the
provisions of the Code, which lessor shall be authorized to file with the
appropriate filing officer; lessee hereby authorizes lessor to execute and
file Financing Statements and/or Continuation Statements under the Code, on
lessee's behalf and to file such a document in all places where necessary to
perfect lessor's interest in the equipment; provided however that nothing
herein, nor the execution of the said financing statement, shall constitute an
acknowledgment that this transaction is subject to the Code.
26. SUCCESSORS. Subject to the provisions hereof this agreement shall be
binding upon and inure to the benefit of the heirs, administrators, successors
and assigns of the parties hereto.
27. STATEMENTS. Lessor may require from time to time, and lessee agrees to
furnish statements setting forth the financial condition and operations of
lessee.
28. VEHICLES. If the equipment is a motor vehicle, lessee shall a) permit
only licensed drivers to operate same who shall be employees of lessee, b) use
the vehicle for its own needs and not for hire, c) do nothing which shall
increase or suspend insurance coverage thereon, and d) assume sole
responsibility for the payment of wages, unemployment and workmen's
compensation insurance, and social security requirements of such employees.
29. MASTER LEASE. In the event lessor shall hereafter lease to lessee
additional "equipment," as said term is used herein, said equipment shall be
described on a Schedule or Schedules executed by the parties which shall make
reference to this "Lease of Personal Property." Each said Schedule shall in
-7-
addition to describing the equipment therein leased, set forth the term of the
Lease, the amount of rental, the manner of payment of the rentals, the number
of rental payments, the commencement date of the rental payments, the amount
of any security deposit, and such other provisions as may be included therein.
Each such Schedule when executed by the parties shall be deemed to be a part
of this "Lease of Personal Property," and all of the provisions hereof, except
such as may be inconsistent, shall govern said Schedule or Schedules, it being
understood and agreed that this "Lease of Personal Property" shall be the
Master Lease.
30. DEFAULT - WHERE ADDITIONAL LEASES OR SCHEDULES. If lessee fails to pay
any rent or other amount of any other lease or schedule, whether heretofore or
hereafter entered into, within ten (10) days after the same is due and
payable, or if lessee fails to perform any other provisions of this or any
other lease or schedule within ten (10) days after notice thereof from lessor,
it shall constitute a default in all leases or schedules, including this lease
and thereupon the provisions of Paragraph 15 above shall be applicable,
including the right of lessor to apply any security deposit or other
collateral pledged to it by lessee under any lease to cure such default to the
extent applicable. If this Lease or any other lease or schedule heretofore or
hereafter entered into between lessor and lessee shall be determined to be a
security transaction, or if lessee shall default resulting in liquidation,
resale or re-leasing of the leased equipment, then and in such event lessor
shall be deemed to have as of the date hereof and is granted a security
interest in all of the leased equipment described in all leases then
outstanding between lessor and lessee and the proceeds from any such
liquidation, resale or re-leasing shall be applied by lessor to the aggregate
total of obligations due and to become due to it plus its charges, expenses
and reasonable attorneys' fees.
31. WAIVER. LESSEE HEREBY SPECIFICALLY CONSENTS TO WAIVE AND DOES WAIVE ITS
CONSTITUTIONAL RIGHT TO A HEARING PRIOR TO THE LESSOR'S TAKING POSSESSION OR
EXERCISING ANY RIGHT OF SETOFF OR OTHER REMEDY IN THE EVENT OF DEFAULT, AND
AGREES THAT IN SUCH EVENT LESSOR MAY WITH OR WITHOUT PROCESS OF LAW AND
WITHOUT PRIOR HEARING OR DETERMINATION HAVE THE RIGHTS AND REMEDIES SET FORTH
IN THE AFOREMENTIONED LEASE. LESSEE ACKNOWLEDGES THAT IT FULLY UNDERSTANDS
THE EFFECT OF THIS WAIVER AND ACKNOWLEDGES THAT THE WAIVER IS FREELY GIVEN BY
IT.
32. DUE ON SALE. The entire indebtedness under this agreement shall become
immediately due and payable and in full at the option of lessor, without
notice, upon a transfer, sale or conveyance of more than 49% of the common or
other voting stock of lessee. The non-payment of such shall constitute an
additional event of default entitling lessor to enforce the provisions of
Paragraph 15 of the lease agreement.
33. A provision of this lease which is prohibited or unenforceable in any
jurisdiction shall as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. To the extent permitted by applicable law, lessor
hereby waives any provision of law which renders any provision hereof
prohibited or unenforceable in any respect.
34. MISCELLANEOUS. It is understood that this written agreement, and the
schedules which are or may be attached hereto constitute the entire agreement
between the parties and no other representation or statements shall be deemed
binding upon the parties nor shall this agreement be amended, altered or
modified except by written agreement signed by the parties hereto. Time is of
-8-
the essence of this agreement and its provisions. This lease shall be
governed by and construed in accordance with the laws of the State of
Wisconsin.
PAYMENT METHOD
OPTION #2 - INVOICE TO
BILLING NAME TecStar Mfg. Company
X000 X00000 Xxxxxxxxxx Xxx
Xxxxxxxxxx XX 00000
EQUIPMENT LOCATION AND DESCRIPTION:
Equipment Location: W190 X00000 Xxxxxxxxxx Xxx
Xxxxxxxxxx XX
County: Washington
Equipment Cost: $945,000.00
Equipment Description - 6087: Injection Molding Equipment per Schedule "A"
attached hereto and made a part hereof.
INCLUDING ALL ATTACHMENTS, ACCESSORIES,
APPURTENANCES, ACCESSIONS & SUBSTITUTIONS
TOTAL EQUIPMENT COST: *$945,000.00
TOTAL UPFRONT SALES TAX: $0.00
TOTAL COST: $945,000.00
*If "Equipment Cost" shall exceed the above amount, Lessee shall pay the
overage. Or at the option of M&I First National Leasing Corp., the rental may
be increased accordingly.
LIST OF ATTACHMENTS: See Addendum A1, Addendum B, Addendum TX attached hereto
and made a part hereof.
-9-
PAYMENT SCHEDULE
INITIAL TERM OF LEASE/IN MONTHS: 60
LEASE DEPOSIT: $0.00 (1)
COMMENCEMENT DATE OF LEASE:
FIRST PAYMENT DATE:
60 consecutive rental payments, beginning on the First Payment Date and on the
same day of each period thereafter as follows:
One Advanced Monthly Payment in Amount of: $16,149.00 dollars
Fifty Nine Monthly Payments in Amount of: $16,149.00 dollars
Lessee acknowledges by signature below that the lease deposit will be paid in
full on or before any invoices will be paid or purchase orders issued by
Lessor.
(1) Lessee shall be responsible for the payment of all sales or use taxes
imposed on this transaction and agrees that the same shall be added to the
monthly rentals.
This lease is subject to all terms and conditions contained in the Lease of
Personal Property document which lessee acknowledges having read.
This Lease shall not be binding upon lessor until accepted by lessor at its
office in Milwaukee, Wisconsin.
THIS IS A NON-CANCELABLE LEASE
FOR THE TERM INDICATED ABOVE
DATE OF LEASE April 25, 2001
ACCEPTED
LESSOR M&I FIRST NATIONAL LEASING CORP. LESSEE TecStar Mfg. Company
BY BY
Authorized Signature Authorized Signature and Title
WITNESS
Secretary or Other Corporation
Officer or Witness
CO-LESSEE Plastics Mfg. Company
BY
Authorized Signature and Title
WITNESS
Secretary or Other Corporation
Officer or Witness
-10-
Lease # 24618
M&I FIRST NATIONAL LEASING CORP.
LESSEE TecStar Mfg. Company/Plastics Mfg. Company as Co-Lessee
X000 X00000 Xxxxxxxxxx Xxx
Xxxxxxxxxx XX 00000
EQUIPMENT LOCATION AND DESCRIPTION OF LEASED PROPERTY
Equipment Location: W190 X00000 Xxxxxxxxxx Xxx
Xxxxxxxxxx XX
County: Washington
Equipment Cost: $945,000.00
Equipment Description - 6087: Injection Molding Equipment per Schedule "A"
attached hereto and made a part hereof.
INCLUDING ALL ATTACHMENTS, ACCESSORIES,
APPURTENANCES, ACCESSIONS & SUBSTITUTIONS
PAYMENT SCHEDULE
INITIAL TERM OF LEASE/IN MONTHS: 60
LEASE DEPOSIT: $0.00 (1)
One Advanced Monthly Payment in Amount of: $16,149.00 dollars.
Fifty Nine Monthly Payments in Amount of: $16,149.00 dollars.
(1) Lessee acknowledges by signature below that the lease deposit
will be paid in full on or before any invoices will be paid or
purchase orders issued by Lessor.
*Lessee shall be responsible for the payment of all sales or use taxes imposed
on this transaction and agrees that the same shall be added to the monthly
rentals.
See Addendum A1, Addendum B, Addendum TX attached hereto and made a part
hereof.
TO: M&I FIRST NATIONAL LEASING CORP.
In consideration of your reasonable efforts to obtain the above equipment from
the above seller(s) according to the terms of your purchase order(s), and in
consideration of the expenses which you will have already incurred in relation
to the completion of this lease transaction, we hereby propose to lease from
you the equipment described above and as further described in the lease to be
-1-
signed, we agree to comply with the provisions and terms set forth above and
in the aforementioned lease (form of which has been submitted to us), and we
also agree to comply with the terms set out herein. Upon your written
acceptance of the lease, we shall be bound thereby, and we hereby authorize
you to insert in the lease the date of shipment, serial numbers, or other
information that you feel necessary to supplement the material terms of the
lease. The equipment shall be delivered to us at the location shown above.
Your obligations under the lease shall not become effective until your written
acceptance of the same. As Lessor, you shall not be liable to us for our
refusal to accept delivery of the equipment herein regardless of our reasons
for nonacceptance nor shall you be liable to us if the Seller herein refuses
to accept your purchase order regardless of said Seller's reasons for
nonacceptance. We further agree that these above proposals shall be
irrevocable by us for 90 days from and including today's date, and should we
then determine to cancel the lease prior to acceptance of the lease by you and
prior to delivery of the equipment, we shall reimburse you for all expenses
incurred by you, indemnify and save you harmless from any claims asserted
against you by reason of your having placed the purchase order above referred
to, or otherwise, and in addition you shall have the option to retain as
liquidated damages the amount of deposit, including lease deposit and advance
rentals, which we have theretofore paid to you. As evidence of our good faith
we are herewith paying you the sum of $0.00. This payment shall be deemed a
service charge to compensate you for the expenses incurred by you in relation
to this lease transaction and shall not be refundable, nor shall it be deemed
a credit toward rental payments or other amounts due under the lease. The
retention by you of any deposit and service charge shall not relieve us from
reimbursing you for any other liability you have incurred by reason of your
having placed purchase order(s), or otherwise, in the event we shall cancel
the lease prior to your acceptance thereof. We warrant that all credit and
all financial information submitted to you is true and correct, and we hereby
authorize you to make such credit investigation or obtain such credit reports
and other financial information, written or oral, respecting our credit and
financial position as you may deem necessary or expedient.
Dated this 27th day of April, 2001.
TecStar Mfg. Company Plastics Mfg. Company
Applicant - Lessee Applicant -Co-Lessee
Authorized Signature and Title Authorized Signature and Title
ADDENDUM B
ADDITIONAL DEFAULT PROVISION
Attachment to a Lease of Personal Property
Between M&I FIRST NATIONAL LEASING CORP. ("Lessor") and
TecStar Mfg. Company ("Lessee")
Dated April 25, 2001
Lessee's failure to maintain a tangible stockholder's equity exclusive of
intercompany transaction in excess of $6,250,000.00 at all times from the date
hereof, to and including the termination of this agreement by its terms shall
constitute an additional event of default entitling Lessor to enforce the
provision of Paragraph 15 of this Lease.
IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of April, 2001.
LESSEE TecStar Mfg. Company
By
Title
-3-
