Exhibit 10.4
MASTER EQUIPMENT LEASE AGREEMENT
THIS AGREEMENT is entered into the 19 day of June, 2000 between DNJ
DIAPER, LLC ("Lessor") whose address is 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx, 00000 and RMED INTERNATIONAL INC. ("Lessee" ) whose address
is 0000 X. Xxxxxxxx Xxx, Xxx Xxxxx, XX 00000.
1. Lease of Equipment
This Master Equipment Lease Agreement ("Agreement") contains general terms
and conditions applying to each Equipment Lease ("Lease") between Lessor and
Lessee that incorporates this Agreement by reference. The equipment or other
personal property covered by all Leases, together with all components, parts,
additions, accessions, attachments, substitutions therefor and replacements
thereof is collectively called the "Equipment" and individually called an
"Item." Each Lease will contain terms and conditions applying only to the
Equipment covered by that Lease and will constitute a separate lease of that
Equipment.
To accept an Item under a Lease, Lessee will sign and deliver to Lessor a
Certificate of Acceptance for the Item in a form provided by Lessor. When Lessor
has confirmed that all of its requirements and conditions have been met, it will
promptly pay the Total Cost of the Item specified in the Certificate of
Acceptance, as directed by Lessee. Lessor requirements and conditions shall
include, but not be limited to, receipt from Lessee of such instruments,
documents and certifications as Lessor reasonably may request, including without
limitation evidence of authority (such as corporate certificates, corporate
resolutions, and partnership authorizations), evidence of insurance, purchase
orders and acceptances thereof, purchase and sale agreements, guarantees or
other credit enhancements, if any, required by Lessor and financial information
and instruments and documents to implement perfect or continue the perfection of
Lessor's rights and remedies as owner and Lessor of the Equipment, including
Uniform Commercial Code forms. Notwithstanding the execution, delivery or filing
of any instruments or documents, it is agreed that the transaction contemplated
in each lease shall be a lease and not intended as security.
Following the date ("Closing Date") which is the earlier of, with respect
to any Lease: (i) the date Lessee gives Lessor a Certificate of Acceptance for
the last Item under Lease; (ii) the "Purchase Cut-Off Date" set forth in such
Lease; or (iii) on such other day as is mutually agreed, Lessor shall send
Lessee a closing schedule, setting forth any adjustments to payment schedules,
stipulated loss values or other matters ("Closing Schedule"). Such Closing
Schedule and the facts and determinations set forth therein shall upon execution
by Lessee and Lessor be conclusive as to the matters therein. Alternatively, in
lieu of signing the Closing Schedule. Lessee may, within thirty (30) days after
the Closing Schedule is sent by Lessor to Lessee, give Lessor written notice
identifying any claimed error therein. Notwithstanding any such notice, Lessee
shall pay all rentals as they become due. If Lessee establishes an error that
affects the amount of rentals, Lessor shall give Lessee a credit for any
overpayment of rentals, and Lessee promptly shall pay to Lessor on demand any
underpayments, If Lessee neither signs the Closing Schedule nor gives written
notice of claimed errors, the Closing Schedule shall be conclusively deemed to
be accurate thirty (30) days after the Closing Schedule is sent by Lessor to
Lessee.
Lessee authorizes Lessor to insert in the Lease or the Closing Schedule,
dates, models, serial numbers, and other pertinent data relative to the proper
identification of Equipment and/or the Lessee.
If by the "Purchase Cut-Off Date" set forth in a Lease, Lessee shall not
have given Lessor written notice of acceptance of an Item, Lessor shall have no
obligation to purchase the Item or to lease it to Lessee. In such event, Lessee
shall immediately pay all accrued Interim Rental (as defined herein) and
reimburse Lessor for all sums Lessor may have paid for, or with respect to, the
Item and for all of Lessor's costs and expenses with respect thereto, and Lessee
shall indemnify and defend Lessor against and hold Lessor harmless from any and
all cost expense, loss, liability and damage that Lessor may suffer or that may
be asserted against Lessor by reason of Lessor's failure or refusal to purchase
such Item. Any such Item shall be deemed to be deleted from the Lease and no
longer included as an Item of Equipment.
2. Non-Cancelable Net Lease
EACH LEASE IS A NON-CANCELABLE NET LEASE. WHEN LESSEE SIGNS AND DELIVERS A
CERTIFICATE OF ACCEPTANCE FOR ANY ITEM, ITS OBLIGATION TO PAY ALL RENT AND OTHER
AMOUNTS WHEN DUE FOR THE ITEM AND OTHERWISE TO PERFORM AS REQUIRED UNDER THE
RELATED LEASE IS
UNCONDITIONAL, IRREVOCABLE AND INDEPENDENT THESE OBLIGATIONS ARE NOT SUBJECT TO
CANCELLATION, TERMINATION, MODIFICATION, REPUDIATION, EXCUSE OR SUBSTITUTION BY
LESSEE. LESSEE IS NOT ENTITLED TO ANY ABATEMENt REDUCTION, OFFSEt DEFENSE OR
COUNTERCLAIM WITH RESPECT TO THESE OBLIGATIONS FOR ANY REASON WHATSOEVER,
WHETHER ARISING OUT OF DEFAULT OR OTHER CLAIMS AGAINST LESSOR OR THE
MANUFACTURER OR SUPPLIER OF THE ITEM, DEFECTS IN OR DAMAGE TO THE ITEM, ITS LOSS
OR DESTRUCTION OR OTHERWISE. EACH LEASE IS INTENDED TO CONSTITUTE A TRUE LEASE
AND NOT A SALE OF THE RELATED EQUIPMENT. TITLE TO THE EQUIPMENT WILL REMAIN WITH
LESSOR AT ALL TIMES. LESSEE'S INTEREST IN THE EQUIPMENT IS LIMITED TO A
LEASEHOLD.
3. Lessee's Warranties and Covenants
Lessee represents and warrants to Lessor upon execution of this Agreement
and each Lease, that: (i) unless Lessee is a sole proprietorship, it is a
corporation, limited liability company or partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and that it is qualified to do business in every jurisdiction where
the failure to qualify would have a material adverse effect on Lessor's rights
hereunder; (ii) it has taken all corporate, company or partnership action which
may be required to authorize the execution, delivery and performance of this
Agreement and each Lease; (iii) such execution, delivery and performance will
not conflict with or violate any provision of its Charter or Articles or
Certificate of Incorporation, By-laws, Operating Agreement or similar governing
document, or any provisions thereof, or in the case of a partnership, its
Certificate of Partnership or Limited Partnership and its Partnership Agreement,
or in the case of a limited liability company, its Articles of Organization, or
result in a default or acceleration of any obligation under any agreement order,
decree or judgment to which it is a party or by which it is bound; (iv) it is
not now in default under any of the same; (v) there is no litigation or
proceeding pending or threatened against it which if decided adversely to
Lessee's interests may have a material adverse effect on Lessee or which would
prevent or hinder the performance by it of its obligations hereunder; (vi) this
Agreement, each Lease and the attendant documents constitute valid obligations
of the Lessee, binding and enforceable against it in accordance with their
respective terms; (vii) no action, consent approval or filing by, of or with any
commission or administrative agency is required in connection herewith; (viii)
it has the power to own its assets and to transact business in which it is
engaged; (ix) it will give to Lessor prior written notice of any change in its
name, identity, jurisdiction of organization or structure; (x) each Lease will
be effective against all creditors of Lessee under applicable law, including
fraudulent conveyance and bulk transfer laws; (xi) the financial statements and
any other information furnished and to be furnished to Lessor are and will be
true and correct at the time of delivery; (xii) as long as any Lease is in
effect Lessee will promptly furnish Lessor (A) within 45 days of the end of each
of Lessee's first three fiscal quarters, balance sheets, statements of
operations, statements of cash flow and statements of changes in shareholders'
equity of Lessee and of each Guarantor of Lessee's obligations (collectively,
the "Financial Statements"), prepared on a consolidated basis in accordance with
United States generally accepted accounting principles ("GAAP") as at the end of
such period and for the fiscal year to date and (B) within 120 days of the end
of each fiscal year of Lessee, Financial Statements, prepared on a consolidated
basis in accordance with GAAP as at the end of such fiscal year and for such
fiscal year, accompanied, at Lessor's request, by the audit reports of an
independent certified public accountant acceptable to Lessor and such other
information as Lessor may reasonably request at any time concerning Lessee and
its affairs, (xiii) each Item shall be personal property and in good order and
condition and, unless Lessor otherwise agrees in writing, has not been used
prior to the time of Lessee's execution of the Certificate of Acceptance
pertaining thereto; (xiv) at all times, Lessee shall keep the Equipment in
Lessee's possession at the address specified in the Lease unless Lessor shall
otherwise consent in writing (the only requirement with respect to rolling stock
is that it remain within the continental United States); (xv) Lessee shall not
cause, suffer or permit any Item to be attached or affixed to real property or
improvements thereon (collectively, "Realty") unless Lessor first shall consent
thereto in writing and Lessee shall have obtained from all persons having any
interest in the Realty written consents in form satisfactory to Lessor which
approve such attachment waive any claims to or encumbrances upon attached Items
and consent to the detachment and removal of such Items at any time by Lessor or
Lessee; (xvi) notwithstanding attachment of any Items to Realty, all the
Equipment at all times shall be and remain personal property; (xvii) the
Equipment does not constitute "imported property covered by an Executive order"
as defined in Section 168(g)(6) of the Internal Revenue Code of 1986 ("Code"),
and (xviii) that the recovery period set forth in the applicable Lease for each
Item is the period applicable under the Code to the Equipment
4. Term of Lease
The term of each Lease ("Term") shall consist of an "Interim Term" and a
"Basic Term." The Interim Term shall begin on the date that Lessee first gives
Lessor written notice of acceptance of an Item or written approval for partial
payment whichever is earlier, and shall continue until the time the Basic Term
begins. The Basic Term shall begin on the Closing Date and shall continue for
the length of the Basic Term set forth in the respective Lease.
2
5. Interim Rental
During the Interim Term, Lessee shall pay rent monthly ("Interim Rental"),
on a calendar month basis, in an amount determined by Lessor by applying the
"Interim Rental Rate" set forth in the Lease to portions of the Total Cost then
or theretofore expended by Lessor, for the number of days such sums are
outstanding during such calendar month. Lessee shall pay Lessor each installment
of Interim Rental on the fifteenth day after the end of such calendar month.
6. Periodic Rental
Lessee shall pay rent ("Periodic Rental") for the Basic Term in an amount
calculated by multiplying the Total Cost by the Periodic Rental Rate set forth
in the Lease multiplied by the number of periods constituting the length of the
Basic Term. Lessee shall pay installments of Periodic Rental to Lessor in
accordance with the payment schedule set forth in the Lease.
7. Late Payment
If any installment of rent or other sum owing under the Lease shall not be
paid when due and shall remain unpaid for ten (10) days, Lessee shall pay Lessor
a late charge equal to the greater of $35.00 or two and one-half percent (2.5%)
of the amount delinquent, but in no event at a rate greater than limited by any
applicable law. Such late charge is in addition to, and not in lieu of, other
rights and remedies Lessor may have.
8. No Lessor Equipment Warranties
LESSOR LEASES THE EQUIPMENT AS-IS AND EXPRESSLY DISCLAIMS AND MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, AS TO THE CONDITION, DESIGN, QUALITY, CAPACITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF, OR ANY OTHER MATTER,
CONCERNING THE EQUIPMENT. LESSEE HEREBY WAIVES ANY CLAIM (INCLUDING ANY CLAIM
BASED ON STRICT OR ABSOLUTE LIABILITY IN TORT) IT MAY HAVE AGAINST LESSOR FOR
ANY LOSS, DAMAGE (INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGE) OR EXPENSE
CAUSED BY OR RELATING TO THE EQUIPMENT. LESSEE HAS SELECTED OR WILL SELECT BOTH
THE EQUIPMENT OF THE TYPE AND QUANTITY WHICH IS THE SUBJECT HEREOF AND THE
SUPPLIER FROM WHOM LESSOR PURCHASED THE EQUIPMENT.
9. Insurance
Lessee shall at all times prior to return of an Item to Lessor procure and
continuously carry, maintain and pay for: (A) physical damage insurance
providing "all risks" coverage for the Item in an amount not less than the full
replacement value thereof and (B) bodily injury and property damage combined
single limit liability insurance, all in such amounts and against such risks and
hazards and with insurance companies and pursuant to contract or policies and
with exclusions and deductibles thereon satisfactory to Lessor. All contracts
and policies: (i) shall include provisions for the protection of Lessor
notwithstanding any act or neglect of or breach or default by Lessee; (ii) shall
provide that they may not be modified, terminated or cancelled unless Lessor is
given at least thirty (30) days advance written notice thereof; (iii) shall
contain endorsements (x) naming Lessor (and if Lessor requests at any time, any
successor, assignee or secured party of Lessor) as loss payee for physical
damage insurance and as additional insured for liability insurance, (y)
providing that such insurance is primary as to the Item without right of
contribution from any other insurance, (z) providing thirty (30) days prior
written notice to Lessor (and any successor, assignee or secured party) before
coverage lapses or is cancelled or materially changed, or before there is a
change in insurer. Lessee shall promptly notify any appropriate insurer and
Lessor of each and every occurrence which may become the basis of a claim or
cause of action against the insureds and provide Lessor with all data pertinent
to such occurrence. Lessee will send Lessor a certificate evidencing such
insurance and endorsements or copies of the policies upon request before the
Item's acceptance date and whenever the insurance is renewed. As long as no
Event of Default (as herein defined) exists, Lessor will remit any physical
damage insurance proceeds for an Item to Lessee when Lessee either (A) provides
evidence that the Item has been repaired and restored to the good operating
order and condition required under Section 11 hereof or (B) pays Lessor the
amount due upon an Event of Loss as provided in Section 13 hereof.
10. Lessee Tax Indemnities
(a) General. Lessee will pay and defend, indemnify and hold harmless
Lessor and any successor, assignee or secured party of Lessor on an after-tax
basis from any and all Taxes (as defined below) on or relating to: (i) the
3
Equipment (ii) its ordering, purchase by Lessor, acceptance, delivery,
installation, ownership, leasing, possession, maintenance, documentation, use,
operation, transportation, return or other disposition; (iii) its rentals,
receipts or earnings; and (iv) any Lease. "Taxes" means taxes, fees or other
governmental charges that are not based on the net income of the indemnified
party, whether they are assessed to or payable by Lessee or an indemnified
party, and includes, without limitation: (A) franchise, business and occupation,
gross receipts, sales, use, licensing, registration, titling, stamp and personal
property taxes; (B) levies, imposts, duties, charges and withholdings; and (C)
penalties, fines and additions to tax and interest. Lessee shall not be
obligated to pay any amount under this Section 50 long as it shall in good faith
and by appropriate proceedings contest the validity or the amount thereof,
unless such contest would adversely affect the title of Lessor to any Item of
Equipment or would subject any Item to forfeiture or sale. Lessee shall
indemnify and hold harmless Lessor, on an after-tax basis, against any and all
loss, claims, demands and expenses, including legal expenses resulting from any
such non-payment or contest.
Unless Lessor elects otherwise, Lessor will prepare and file all reports
and returns relating to Taxes covered by this Section and will pay all such
Taxes to the appropriate taxing authority. Lessee will reimburse Lessor for all
such payments promptly on request. However, if Lessor elects, upon written
notice to Lessee, Lessee will prepare and file all such reports and returns, pay
all such Taxes directly to the taxing authority and deliver to Lessor reasonable
evidence thereof.
Upon termination of this Lease as to any Item, Lessee will, upon request,
advance to Lessor the amount estimated by Lessor to equal personal property
taxes on the Item which are not yet payable but for which Lessee will afterward
become liable hereunder. Lessor will account to Lessee for such advances.
(b) Federal Tax Indemnities. If Lessor shall lose the right to claim,
suffer a disallowance of or be required to recapture all or any portion of the
accelerated cost recovery deductions pursuant to Internal Revenue Code Section
16B with respect to the Total Cost for property with recovery period(s) referred
to in the Lease, then, unless such result is due to Lessor's act or omission
(other than its exercise of remedies after default) or to a loss for which
Lessee pays the Stipulated Loss Value (as defined below) of the affected
Equipment, Lessee shall pay to Lessor on demand a sum equal to the amount of
deductions or credits lost by Lessor as a result of such event, plus the amount
of any interest, penalties and additions to taxes payable by Lessor as a result
of such event. The amount of lost deductions and credits to be paid by Lessee
pursuant to this Section shall be computed by Lessor so as to cause Lessor's
after-tax rate of return on investment and after-tax cash flows in respect of
the Lease to equal that which would have been realized by Lessor if such event
had not occurred, but without regard to whether Lessor has or would have had
taxable income sufficient to use the lost deductions or credits. Lessee shall
indemnify and hold harmless Lessor from and against any and all taxes,
assessments and other charges imposed upon Lessor under the laws of any federal,
state, local or foreign government or taxing authority, as a result of any
payment made by Lessee pursuant to this Section 10.
11. Maintenance and Alterations
(a) Lessee at its expense at all times shall maintain, service and repair
any damage to the Equipment so as to: (i) keep the Equipment in good and
efficient working order, condition and repair, ordinary wear and tear resulting
from proper use excepted, and make all inspections and repairs, including
replacement of worn parts (which replacement parts shall be free and clear of
all liens and encumbrances and shall, upon incorporation into the Item, become
the property of Lessor free and clear of any and all liens and encumbrances and
subject to the related Lease), to effect the foregoing and to comply with
requirements of laws, regulations, rules and provisions and conditions of
insurance policies; and (ii) pay all costs, expenses, fees and charges incurred
in connection with the use or operation of the Equipment and of each Item,
including but not limited to repairs, maintenance, storage and servicing. Lessee
will maintain in effect a warranty by or maintenance contract with the
manufacturer or other recognized maintenance provider of the Equipment, and will
send Lessor a copy of such warranty or contract on request. If Lessee has the
Equipment maintained by someone other than the manufacturer, Lessee will pay any
costs necessary to have the manufacturer re-certify the Equipment for continued
maintenance at the expiration of its Lease Term or any Renewal Term (as defined
herein). Lessee shall not make any alterations, substitutions, improvements or
additions to the Equipment or Items, except (i) those required in order to
comply with laws, regulations, rules and Insurance policies and (ii) those which
shall be financed by the Lessor or for which Lessor first shall have consented
thereto in writing, which consent shall not be unreasonably withheld.
Notwithstanding any consent by Lessor, Lessee shall pay all costs and expenses
of the foregoing. All replacements, repairs, improvements, alterations,
substitutions and additions shall constitute accessions to the Equipment and
title thereto shall vest in Lessor, and shall be free of any and all liens. In
performing its obligations under this Section, Lessee will not treat the
Equipment less favorably than similar equipment that it owns or leases, or
reduce its performance in contemplation of expiration of the Term or any Renewal
Term.
(b) Lessor hereby transfers and assigns to Lessee, for so long during the
Term and any Renewal Term as Lessee is not in default, Lessor's right, title and
interest in, under and to any assignable factory and dealer warranty, whether
4
express or implied, with respect to the Equipment. All claims and actions upon
any warranty shall be made and prosecuted by Lessee at its sole cost and
expense. Lessor shall have no obligation to make or prosecute any claim upon or
under a warranty. Lessee shall have proceeds of a warranty claim or recovery
paid to Lessor. Lessor shall make such proceeds available for any repair,
restoration or replacement to correct such warranted condition. Excess proceeds
shall be used to reduce Lessee's obligations under the related Lease, applied in
inverse order of maturity.
12. Use; Quiet Enjoyment
So long as there shall exist no Event of Default, Lessee shall be entitled
to the possession, use and quiet enjoyment of the Equipment during the Term and
any Renewal Term in accordance with the terms of the Lease. Unless a purchase
option is exercised, Lessee shall deliver and surrender the Equipment to Lessor
at the end of the Term or Renewal Term in accordance with Section 16 hereof.
Lessee warrants that the Equipment will at all times be used and operated solely
in the conduct of Lessee's business in a careful and proper manner for the
purpose for which it was designed and intended and under and in compliance with
manufacturer's specifications and applicable laws and all lawful acts, rules,
regulations and orders of any governmental bodies or officers having power to
regulate or supervise the use of such property, except that Lessee may in good
faith and by appropriate proceedings contest the application of any such rule,
regulation or order in any reasonable manner that will not adversely affect the
title of Lessor to any Equipment or subject the same to forfeiture or sale.
Lessee will not permit its rights or interest hereunder to be subject to any
lien, charge or encumbrance and will keep the Equipment free and clear of any
and all liens, charges, encumbrances and adverse claims (except those arising
from acts of Lessor). Lessor and its agents and employees shall have the right
to enter upon any premises where the Equipment or Items are then located to
inspect and examine the same and the maintenance records related thereto. Such
inspections shall be during normal business hours and upon reasonable notice;
provided that Lessor may inspect such Equipment Items and records without notice
and at any time if an Event of Default exists or if Lessor reasonably believes
that any Items or lessor's rights are in jeopardy of damage or loss. Lessee
agrees to assist Lessor in its inspections and examinations permitted hereunder.
All such inspection rights are for the sole benefit of Lessor and shall not be
construed to impose any obligation on Lessor, whether or not Lessor makes any
inspections or receives any reports.
13. Event of Loss
Each Lease is a net lease. Lessee assumes all risk of and shall indemnify
and hold harmless Lessor from and against all damage to and loss of the
Equipment from any cause whatsoever, whether or not such loss or damage is or
could have been covered by insurance (an "Event of Loss"). Except as otherwise
specifically provided herein, neither this Agreement nor any related Lease shall
terminate and there shall be no abatement, reduction, suspension or deferment of
Interim or Periodic Rental for any reason, including damage to or loss of the
Equipment or any one or more Items. Lessee promptly shall give Lessor written
notice of any material loss or damage, describing completely and in detail the
cause and the extent of loss and damage. Upon the occurrence of an Event of
Loss, at its option, Lessee shall: (i) repair or restore the damaged or lost
Items to good condition and working order; or (ii) replace the damaged or lost
Items with similar equipment of equal value in good condition and working order;
or (iii) pay Lessor in cash the Stipulated Loss Value of the damaged or lost
Items. Upon Lessee's complying with the foregoing, Lessor shall pay or cause to
be paid over to Lessee the net proceeds of insurance, if any, with respect to
such damage or loss. "Damage" and "loss" shall include damages and losses of any
kind whatsoever including, without limitation, physical damage and partial or
complete destruction, including intentionally caused damage and destruction, and
theft. Upon payment by Lessee of the Stipulated Loss Value for an Item, along
with any rent late charges, taxes or other amounts then due and owing, Lessor
will then deliver a Xxxx of Sale for the Item, and Lessee's obligation to pay
rent for the Item will terminate.
The "Stipulated Loss Value" of an Item as of any date shall equal a sum
computed by Lessor, which shall not exceed the amount determined by multiplying
the Total Cost of the Item by the Stipulated Loss Factor as set forth in the
applicable Closing Schedule for the Lease year during which the loss of the Item
occurs.
14. Ownership and Marking
Lessee has not and, by execution and performance hereof, will not have or
obtain any title to the Equipment or any other interest therein except as Lessee
hereunder and subject to all the terms hereof. Title to the Equipment shall at
all times remain in Lessor and Lessee at its expense shall protect and defend
the title of Lessor and keep it free of all claims and liens, other than the
rights of Lessee hereunder and claims and liens created by or arising through
Lessor. Lessee will treat this transaction as a lease for tax purposes and will
not claim any credit or deduction inconsistent with Lessor's ownership of the
Equipment. If Lessor supplies Lessee with labels designating its interest in the
Equipment, Lessee shall affix the same to and keep them in a prominent place on
the Equipment.
5
Notwithstanding the express intent of the parties, should a court of
competent jurisdiction determine that this Agreement is not a true lease, but
rather one intended as security, then solely in that event and for the expressly
limited purposes hereof, Lessee shall be deemed to have hereby granted Lessor a
security interest in this Lease, the Equipment, and all accessions thereto,
substitutions and replacements therefor, and proceeds (including insurance
proceeds) thereof, to secure the prompt payment and performance as and when due
of all obligations and indebtedness of Lessee to Lessor, now existing or
hereafter created; provided however, that the foregoing shall not apply if such
determination is made solely for purposes of federal tax laws and regulations.
15. Lessee's General Indemnities
Lessee will pay and defend, indemnify and hold harmless Lessor, any
successor, assignee or secured party of Lessor and any member, employee, persons
controlling or controlled by and any agents or attorneys of any of the
foregoing, on an after-tax basis from and against any loss, claim, cause of
action, damage, liability, cost or expense (including, but not limited to,
reasonable, out-of-pocket legal fees and costs) which may be asserted against or
incurred in any manner by or for the account of any of the foregoing persons:
(i) relating to the Equipment or any part thereof, including without limitation
the manufacture, construction, purchase, delivery, acceptance or rejection,
installation, ownership, sale, leasing, removal or return of the Equipment or as
a result of the use, maintenance, repair, replacement, operation or the
condition thereof (whether defects are latent or discoverable); (ii) by reason
or as a result of any act or omission of Lessee for itself or as agent or
attorney-in-fact for Lessor hereunder; (iii) as a result of claims for patent,
trademark or copyright infringement; (iv) as a result of product liability
claims or claims for strict liability; (v) resulting from claims for personal
injury, death or property damage or (vi) otherwise resulting or arising from any
claim, litigation or other proceeding, whether threatened or initiated,
asserting a claim arising from or in connection with this Agreement, any Lease,
any Certificate of Acceptance, any Closing Schedule or any transaction
contemplated hereby or thereby (including, without limitation, all costs
involved in connection with any subpoena or other governmentally sanctioned
request for the production of documents or witnesses in any case or proceeding,
whether involving an indemnified person as a party or otherwise); provided,
however, that no person indemnified hereunder shall be indemnified for any
losses, claims, damages, costs and expenses arising solely from the willful
misconduct or gross negligence of such indemnified person.
16. Lessee Return Provisions at Expiration of Lease Term
At least One Hundred and Twenty (120) days before the expiration of the
Term of the first Item accepted under each Lease, Lessee will give Lessor
written notice should the Lessee elect to return all such Items to Lessor in
accordance with the provisions provided below.
At the expiration of the Term or Renewal Term of each Item that Lessee
does not purchase, Lessee will at its sole expense and risk de-install, pack and
crate such Items and return them to Lessor (all in accordance with industry
standards and the manufacturer's recommendations and maintenance certification
standards) at any location designated by Lessor within the continental United
States in the good operating order and condition required under Section 11
hereof, free of all liens, claims and encumbrances as provided in Section 14
hereof, together with all related plans, specifications, operating manuals,
maintenance records and similar documents. If the Lessee returns such Items to
Lessor at any location designated by Lessor which is further than 1,000 miles
from Lessee's address as set forth in the first paragraph hereof, the
incremental expense associated with the shipping of such Items to a location
exceeding 1,000 miles from such Lessee location shall be borne equally by Lessor
and Lessee. 1,5 for any reason, Lessee fails to return any Item as required in
the proper condition, Lessees obligations under the related Lease shall continue
in full force and effect on a month-to-month basis as to the Item and Lessee
will continue to pay the current rent for the Item.
17. Lessor May Perform
If Lessee, at any time, shall fail to pay any sum which Lessee is required
by this Agreement to pay or shall fail to do or perform any other act Lessee is
required by this Agreement to do or perform, Lessor at its option may pay such
sum or do or perform such act, and Lessee shall reimburse Lessor on demand for
the amount of such payment and for the cost and expense which may be incurred by
Lessor for such acts or performance, together with interest thereon at the
Default Rate (as defined in Section 18 of this Agreement) from the date of
demand until paid.
18. Default
(a) Events of Default. Each of the following shall constitute an event of
default ("Event of Default"): (i) failure to perform and comply with the
provisions and conditions of Section 9 or Section 11 hereof, or failure to keep
the
6
Items free of liens, claims and encumbrances as provided in Section 14 hereof;
(ii) failure to pay any sum, including installments of rental, within ten (10)
days of the date when due; (iii) failure to perform and comply with any other
provision or condition of this Agreement within thirty (30) days after Lessor
shall have given Lessee written notice of default with respect thereto, (iv) any
representation or warranty made by Lessee to Lessor, whether made in this
Agreement or any Lease or in any certificate, agreement instrument or statement,
including income and financial statements, shall prove to have been incorrect in
any material respect when made; (v) any event of default occurs with respect to
any obligations of Lessee to Lessor on or with respect to any transactions,
debts, undertakings or agreements other than this Agreement or any event of
default occurs with respect to any material obligation of Lessee to any third
party; (vi) the failure of Lessee generally to pay its debts as they become due
in the ordinary course of business, or the filing of any application for the
appointment of a receiver for a major part of Lessee's assets or the filing of
any petition or application by or against Lessee under any present or future
laws for the relief of debtors or for the subjection of the property of a debtor
to the control of any court, tribunal or agency for the benefit of creditors,
including proceedings under the United States Bankruptcy Code, if the proceeding
commenced by such filing, if instituted against Lessee, shall not be dismissed
for a period of sixty (60) days; (vii) the execution by Lessee of a general
assignment for the benefit of creditors; (viii) Lessee winds up, dissolves or
otherwise terminates its corporate, partnership or limited liability company
existence, or consolidates with or merges with or into any entity, or sells,
leases or otherwise transfers substantially all of its assets to any entity, or
incurs a substantial amount of indebtedness other than in the ordinary course of
its business, or engages in a leveraged buy-out or any other form of corporate
reorganization, including conversions to Subchapter 'S' corporation status.
(b) Effect on Lessor's Obligation. Upon the occurrence of an Event of
Default, Lessor shall have no further obligation to Lessee to purchase Equipment
or Items or to lease any thereof to Lessee.
(c) Remedies.
Upon the occurrence of an Event of Default as provided above, Lessor may
at its option:
(i) proceed by appropriate court action or actions, either at law or
in equity, to enforce performance by the Lessee of the applicable
covenants of this Agreement and any applicable Lease or to recover damages
for the breach thereof; or
(ii) by notice in writing to the Lessee terminate Lessee's right of
possession of the Equipment, whereupon all rights of the Lessee to possess
and use the Equipment shall absolutely cease and terminate, but Lessee
shall remain liable as follows:
Upon such a termination, Lessee at its expense shall immediately redeliver
the Equipment to Lessor at the location specified in Section 16(b) hereof. If
Lessee shall fail to do so, Lessor may retake possession of the Equipment by
entering upon any premises at any reasonable time and thereafter Lessor may
hold, possess, sell, upgrade, lease to others or enjoy the same, free from any
right of Lessee, or its successors or assigns. If Lessor so retakes possession,
Lessee upon demand shall reimburse Lessor for all costs and expenses relating
thereto. Notwithstanding such redelivery or retaking, Lessor shall have a right
to recover from Lessee any and all amounts which under the terms of this
Agreement may be then due or which may have accrued to the date of such
termination, and also to recover forthwith from the Lessee its damages for loss
of a bargain and not as a penalty, an amount equal to the higher of Fair Market
Value or the Stipulated Loss Value of the Equipment as of the rent payment date
on or next preceding the date of default, less:
(A) the amount Lessor in fact receives from the sale of the
Equipment after deduction of all estimated expenses of such sale
(Equipment which Lessor is unable to recover shall at Lessor's option be
deemed worthless); or
(B) at Lessor's election, the present value of the non-cancelable
regularly scheduled rentals receivable from a subsequent lease of all or
part of the Equipment entered into by Lessor (discounted at the Default
Rate), and taking into account only the rentals receivable from the
commencement date of such subsequent lease until the end of the Term for
such Equipment.
In addition to all amounts and damages to which Lessor is entitled as set
forth above, Lessee shall be liable to Lessor for all costs and expenses
incurred by Lessor by reason of Lessee's breach or default. Lessee shall also be
liable for interest on any of the above-referenced amounts from and after the
due date at the Default Rate, or the legal limit whichever is smaller.
7
Lessor's costs and expenses incurred by reason of Lessee's breach or
default shall include, without limitation, costs and expenses of receiving or
retaking possession of the Equipment, storing, holding, transporting, insuring,
caring for, servicing, maintaining and renting the Equipment or Items and
collecting rents and professional fees and expenses with respect to or incurred
by reason of the breach or default, including legal fees and expenses for advice
and legal services in any actions or proceedings which Lessor may commence or in
which Lessor may appear or participate to exercise or enforce any rights or
remedies or to protect or preserve any rights or interests including, but not
limited to, attorneys' fees and costs incurred for representation in matters
arising under the bankruptcy statutes, including relief from stay motions and
motions concerning the assumption or rejection of executory contracts and leases
and in all reviews of and appeals from any such actions or proceedings.
The "Default Rate" of interest shall be a rate per annum computed monthly
which shall be five (5) percentage points above the prime rate, but not greater
than the maximum rate, if any, limited by applicable law. The "prime rate"
referred to in this Agreement shall mean the rate per annum announced by The
Chase Manhattan Bank, New York City, from time to time as its prime rate,
whether or not such rate is applied by said bank to any then outstanding loans,
changing with each announced change of such prime rate.
19. Rights Cumulative
Unless otherwise expressly provided herein, all rights and remedies of
Lessor are concurrent and cumulative. The exercise or partial exercise of any
remedy shall not restrict Lessor from further exercise of that remedy or any
other remedy.
20. Non-Waiver
Neither the acceptance by Lessor of any payment or any other performance,
nor any act or failure of Lessor to act or to exercise any rights, remedies or
options in any one or more instances shall constitute a waiver of any such
right, remedy or option or of any other then existing or thereafter accruing
right, remedy or option, or of any breach or default then existing or thereafter
occurring. No purported waiver by Lessor of any right remedy, option, breach or
default shall be binding unless in writing and signed by an officer of Lessor. A
written waiver by Lessor of any right remedy, option, breach or default shall
not constitute a waiver of any other then existing or thereafter accruing right
remedy or option or of any other then existing or thereafter occurring breach or
default.
21. Notices; Payments
(a) A written notice may be given: (i) by personal delivery of the same to
a corporate officer of the party to whom it is directed (the "Addressee"), or to
a general partner if the Addressee is a partnership, or to a member if the
Addressee is a limited liability company, or to the owner if the Addressee is a
sole proprietorship; (ii) by mailing the notice to the Addressee by first class
mail, registered or certified, with postage prepaid, addressed to the Addressee
at the address following its name in the opening paragraph of this Agreement or
to such other address as the Addressee may specify by notice in writing given in
accordance with this Section; or (iii) by overnight courier service. Notice
shall be effective upon delivery if sent pursuant to subsection (i) above,
effective three (3) days after mailing, or effective the next day if sent by
overnight courier. A "business day" shall be any day that is not a Saturday or
Sunday or a legal holiday.
(b) The Lessee shall make all payments to Lessor at the place where the
notice is to be mailed to Lessor pursuant to subsection (a) above. Payments are
deemed paid when received by Lessor.
22. Assignment
(a) LESSEE WILL NOT SUBLEASE OR LEND ANY ITEM OR SELL ASSIGN, TRANSFER OR
GRANT A SECURITY INTEREST IN ALL OR ANY PART OF ITS INTERESTS IN THE EQUIPMENT
OR ANY LEASE WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. Lessor's consent to an
assignment, sublease, transfer, sale or grant in any one or more instances shall
not impose any obligation upon Lessor to consent to any other or further
assignments. Lessor's consent to an assignment, sublease, transfer, sale or
grant shall not release Lessee from any obligations with respect to the Lease
unless expressly so stated in the written consent.
(b) All rights of Lessor hereunder may be assigned, pledged, mortgaged,
transferred or otherwise disposed of, either in whole or in part, without notice
to Lessee but subject always to the rights of Lessee under this Lease. If Lessee
is given notice of any such assignment, Lessee shall acknowledge receipt thereof
in writing. If Lessor assigns this Agreement or
8
any Lease or the rent due or to become due hereunder or any other interest
herein, whether as security for any of its indebtedness or otherwise, no breach
or default by Lessor hereunder or pursuant to any other agreement between Lessor
and Lessee shall excuse performance by Lessee of any provision hereof or give
rise to any defense, counterclaim or set off with respect to Lessee's
obligations under the Lease, it being understood that in the event of such
default or breach by Lessor that Lessee shall pursue any rights on account
thereof solely against Lessor through a claim for damages. No such assignee
shall be obligated to perform any duty, covenant or condition required to be
performed by Lessor under the terms of this Agreement.
23. Survival
The representations warranties, indemnities and agreements of Lessee, and
Lessee's obligations under any and all provisions of this Agreement, shall
survive the expiration or other termination of this Agreement, shall be binding
upon its successors and assigns and are expressly made for the benefit of and
shall be enforceable by Lessor and its successors and assigns.
24. Miscellaneous
(a) The term "Lessor" shall mean the Lessor named herein and its
successors and assigns.
(b) Whenever the context so requires, any pronoun gender includes all
other genders, and the singular includes the plural. If more than one person
constitute Lessee, whether as a partnership or otherwise, all such persons are
and shall be jointly and severally liable for all agreements, undertakings and
obligations of Lessee.
(c) All captions and section, paragraph and other divisions and
subdivisions are for convenience of reference only and shall not affect the
construction, interpretation or meaning of this Agreement or any Lease or of any
of the provisions thereof.
(d) THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF
THE STATE OF ILLINOIS, WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS
THEREOF.
(e) This Lease shall be binding upon and, except as limited in Section 22
hereof, shall inure to the benefit of Lessor and Lessee and their respective
successors and assigns.
(f) PROVIDED HEREIN. THIS LEASE CANNOT BE CANCELLED OR TERMINATED EXCEPT
AS EXPRESSLY
(g) Lessee's obligation to pay or reimburse Lessor for expenses as
provided hereunder shall be limited to reasonable expenses.
(h) LESSEE AND LESSOR EACH WAIVES FOR ITSELF AND ITS RESPECTIVE SUCCESSORS
AND ASSIGNS ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY MATTER ARISING
UNDER THIS AGREEMENT, ANY LEASE OR OTHER RELATED DOCUMENT.
(i) Lessee hereby authorizes Lessor, in such jurisdictions where such
action is authorized by law, to execute financing statements regarding the
Equipment on Lessee's behalf or to effect recordation or filing of such
financing statements without Lessee's signature thereon.
(j) For all purposes hereof, "day" shall mean a calendar day.
25. Article 2A Waivers
If Article 2A of the Uniform Commercial Code is adopted under applicable
state law and applies to this Agreement or to any Lease, then Lessee, to the
extent permitted by law, waives any and all rights and remedies conferred upon a
lessee by Sections 2A-so8 through 2A-522 of such Article 2A, including, but not
limited to, Lessee's rights to:
(i) cancel or repudiate this Agreement or a Lease;
(ii) reject or revoke acceptance of the Equipment;
9
(iii) claim, grant or permit attachment of a security interest in
the Equipment in Lessee's possession or control for any reason;
(iv) deduct from Interim, Rental or Periodic Rental payments, or
other amounts due hereunder, all or any part of any claimed damages
resulting from Lessor's default, if any, under this Agreement or any
Lease;
(v) accept partial delivery of the Equipment or an Item thereof;
(vi) "cover" by making any purchase or lease of or contract to
purchase or lease equipment in substitution for Equipment designated in
this Agreement or any Lease; and
(vii) obtain specific performance, replevin, detinue, sequestration,
claim and delivery or the like for any Equipment identified in any Lease.
To the extent permitted by applicable law, Lessee also hereby waives any
rights now or hereafter conferred by statute or otherwise which may
require Lessor to sell, lease or otherwise use or dispose of any Equipment
in mitigation of Lessor's damages or which may otherwise limit or modify
any of Lessor's rights or remedies.
26. No Affiliation with Suppliers
Lessee warrants that neither it nor any of its officers, directors (if a
corporation), partners (if a partnership) or members (if a limited liability
company) has, directly or indirectly, a substantial financial interest in the
manufacturer or supplier of any Equipment except as previously disclosed in
writing to Lessor.
27. Entire Agreement
This Agreement, applicable Leases, Certificates of Acceptance and Closing
Schedules shall constitute the entire agreement between the parties and shall
not be altered or amended except by an agreement in writing signed by the
parties hereto or their successors or assigns.
IN WITNESS WHEREOF Lessor and Lessee have signed this Agreement as of the
day and year first hereinabove written.
LESSOR: DNJ DIAPER, LLC LESSEE: RMED INTERNATIONAL INC.
By: [ILLEGIBLE] By: [ILLEGIBLE]
Its: Managing Member Its: V.P. Operations
10
Equipment Lease Schedule # 1
Lessor: DNJ DIAPER, LLC
Lessee: RMED INTERNATIONAL INC.
Master Lease Dated: June 19th, 2000
Equipment Location (including County): 0000 Xxxxx Xxxxxxxx Xxx, Xxx Xxxxxx, XX
00000-0000, Eau Claire County
1. Description of Equipment
--------------------------------------------------------------------------------
Quantity Manufacturer Description Serial
Number(s)
--------------------------------------------------------------------------------
One (1) PCMC Genesis XP Baby Diaper Machine including but not 8006
limited to the following component part features:
--------------------------------------------------------------------------------
Tissue Unwind, Debulker, Final Cutoff and
--------------------------------------------------------------------------------
Crossfolder, Horizontal Stacker, Web Combining
--------------------------------------------------------------------------------
System, SAP Applicator, Frontal Tape Applicator,
--------------------------------------------------------------------------------
Dust Reclaim System, Blowers, Tape Tab
--------------------------------------------------------------------------------
Applicator, small, medium, large and extra large
--------------------------------------------------------------------------------
change parts, hammer ill, Pulp unwind, drum
--------------------------------------------------------------------------------
former, adhesive application system,
--------------------------------------------------------------------------------
Nordson/Meltex adhesive system, Longitudinal
--------------------------------------------------------------------------------
Fold Former, Nonwoven Unwind, Acquisition Layer
--------------------------------------------------------------------------------
unwind, Backsheet Poly Unwind, Backsheet
--------------------------------------------------------------------------------
nonwoven unwind, Backsheet Lamination, Standing
--------------------------------------------------------------------------------
Leg Cuff unwind, Standing Leg Cuff Applicator,
--------------------------------------------------------------------------------
Fluff Pad Cutoff, Acquisition Layer Applicator,
--------------------------------------------------------------------------------
Leg Elastic Applicator, Waistband Applicator,
--------------------------------------------------------------------------------
Waistband Unwind, Final Contour Cutter, Vision
--------------------------------------------------------------------------------
Inspection System, Web Guides
--------------------------------------------------------------------------------
together with all components, parts, additions, accessions, attachments and
substitutions therefor and replacements thereof
Schedule 1
Equipment Lease Schedule # 1
Page 2
Lessor: DNJ DIAPER, LLC
Lessee: RMED INTERNATIONAL INC.
2. Lease Commencement Date: July 1st, 2000
3. Lease Term: 60 months
Basic Equipment Periodic
Term Cost Total Cost Rental
----- --------- ---------- --------
60 months $2,500,000.00 $2,500,000.00 $54,462.87
Monthly Rent is payable in advance on the 1st day of each calendar month
commencing on the Lease Commencement Date.
4. Stipulated Loss Value: Payable upon Event of Loss (see attached to Schedule)
5. Assignment of Purchase Right and Warranty - Warranty Disclaimer
Lessee hereby transfers to Lessor Lessee's right to purchase the Equipment
from the Manufacturer thereof on the terms set forth on the [purchase
order/contract] attached as Exhibit 1 hereto (the "Purchase Terms"). Lessor
agrees to purchase the Equipment from the Manufacturer on the Purchase Terms and
to pay for those "soft costs" identified on Exhibit 2 hereto provided that (i)
Lessee has delivered to Lessor on or before the Purchase Cut-Off Date all of the
documents, all of the documents, instruments and other items set forth on
Schedule A hereto and (ii) no Event of Loss, Event of Default or event which,
with the giving of notice, the lapse of time, or both, could result in an Event
of Default exists. In the event that the Lessee fails to meet the conditions set
forth in the previous sentence on or prior to the Purchase Cut-Off Date,
Lessor's obligations under this section shall terminate and be of no further
force or effect. Lessee transfers to Lessor all of Lessee's right, title and
interest in any and all warranties (if any) made by the Manufacturer of the
Equipment to Lessee. Lessee agrees that it will enforce, in its own name, all
warranties, representations and agreements made by the manufacturer and/or
supplier of the Equipment unless Lessor shall instruct lessee otherwise. LESSEE
CONFIRMS AND ACKNOWLEDGES THAT LESSOR IS NOT A MANUFACTURER, BROKER OR DEALER OF
THE EQUIPMENT AND THAT THE EQUIPMENT SELECTED BY THE LESSEE IS BEING PURCHASED
BY LESSOR AT THE REQUEST OF LESSEE FROM A SUPPLIER SELECTED BY LESSEE, AND
LESSEE, ACCORDINGLY, FURTHER ACKNOWLEDGES THAT LESSOR DISCLAIMS ANY EXPRESS AND
IMPLIED WARRANTIES WITH RESPECT TO THE EQUIPMENT OR USE THEREOF (INCLUDING ANY
WARRANTY AS TO THE CONDITION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE EQUIPMENT OR WITH RESPECT TO INTERFERENCE OR INFRINGEMENT) AND
AGREES TO HOLD LESSOR HARMLESS FROM ANY LOSSES IT MAY SUFFER IN CONNECTION
THEREWITH. Lessee confirms that no defect or unfitness of the Equipment shall
release it from any payment or other obligations under this Lease or the Master
Equipment Lease Agreement.
Schedule 1 2
Equipment Lease Schedule # 1
Page 3
Lessor: DNJ DIAPER, LLC
Lessee: RMED INTERNATIONAL INC.
6. Acceptance of Equipment
LESSEE HEREBY CONFIRMS THAT ALL ITEMS OF THE EQUIPMENT REFERRED TO ABOVE
HAVE BEEN RECEIVED AND INSTALLED BY LESSEE, ARE IN SATISFACTORY WORKING ORDER
AND CONDITION AND ARE ACCEPTABLE TO LESSEE, AND THAT LESSEE APPROVES PAYMENT BY
LESSOR TO THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT. THIS PARAGRAPH SHALL
CONSTITUTE THE CERTIFICATE OF ACCEPTANCE REFERENCED IN THE MASTER EQUIPMENT
LEASE AGREEMENT FOR THE ITEMS OF EQUIPMENT HEREIN LISTED.
7. Incorporation of Lease
This Equipment Lease constitutes a "Lease" under and as defined in the
Master Lease Agreement referenced above, which Master Lease Agreement is
incorporated herein in its entirety. Each party hereto also agrees that no
Closing Schedule to this Lease shall be required and that the matters set forth
herein with respect to the Equipment payment schedules, amounts and stipulated
loss values shall be conclusive.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute this Equipment Lease as of the date first above
written.
LESSOR: DNJ DIAPER, LLC LESSEE: RMED INTERNATIONAL INC.
By: [ILLEGIBLE] By: [ILLEGIBLE]
Its: Managing Member Its: V.P. Operations
Schedule 1 3
