LEASE AGREEMENT #000-00000-000
--------------------------------------------------------------------------------
CUSTOMER: Xxxxxx Xxxx Xxxxx Inc. LESSOR: XXXXXXX XXXXXX & COMPANY
000 Xxxx Xxxxx Xxxxxx LEASING, INC.
Xxxxx 0000 000 Xxxxxx Xxxxxx XX
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
DESCRIPTION OF EQUIPMENT LEASED
Quantity Equipment Description (TYPE, MAKE, MODEL NO. & SERIAL
NO.)
See Attached Schedule A for Equipment Description
Equipment Location (if different from above): __________________________________
Name/Phone No. of Contact to Confirm Installations:_____________________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TRANSACTION TERMS
FIRST PAYMENT DUE DATE May 30, 1997
TOTAL MONTHLY RENT: $64,501.41(plus applicable taxes) SECURITY DEPOSIT: $ - 0 - TERM: Sixty (60) months
PURCHASE OPTION AT END OF TERM: $1.00 or Other (___________) Fair Market Value
(not to exceed 10%)
--------------------------------------------------------------------------------
We have written this Lease in plain language so that you may more easily
understand its terms. Please read your copy of the Lease carefully and feel free
to ask questions. We use the words "you" and "your" to mean each Customer named
above. The words "we", "us" and "our" refer to Xxxxxxx Xxxxxx & Company Leasing,
Inc., the owner of the Equipment.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS LEASE (INCLUDING THOSE ON THE
REVERSE SIDE) SHOULD BE READ CAREFULLY, BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. TERMS OR ORAL PROMISES WHICH ARE NOT CONTAINED IN THIS WRITTEN
LEASE CONTRACT MAY NOT BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS
LEASE ONLY BY ANOTHER WRITTEN AGREEMENT BETWEEN YOU AND US. YOU AGREE TO COMPLY
WITH THE TERMS AND CONDITIONS OF THIS LEASE. THIS LEASE IS NOT CANCELLABLE. YOU
AGREE THAT THE EQUIPMENT WILL BE USED ONLY FOR BUSINESS PURPOSES.
YOU CERTIFY THAT ALL THE INFORMATION GIVEN IN THIS LEASE AND YOUR APPLICATION
WAS CORRECT AND COMPLETE WHEN THIS LEASE WAS SIGNED. THIS LEASE IS NOT BINDING
UPON US OR EFFECTIVE UNTIL AND UNLESS WE EXECUTE THIS LEASE. THE LEASE WILL BE
GOVERNED BY THE LAWS OF THE STATE OF IOWA. YOU AGREE TO THE JURISDICTION AND
VENUE OF FEDERAL AND STATE COURTS IN LINN COUNTY, IOWA.
LESSOR: CUSTOMER:
XXXXXXX XXXXXX & COMPANY LEASING, INC. XXXXXX XXXX XXXXX INC
By:________________________________________ By:________________________
Title:_____________________________________ Title:_____________________
Date Accepted:_____________________________ Date Signed:_______________
--------------------------------------------------------------------------------
1. LEASE; DELIVERY AND ACCEPTANCE OF EQUIPMENT. You agree to lease the Equipment
described on the reverse side of this Lease from us when we accept this Lease at
our office in Iowa. You agree to be bound by all the terms of this Lease. When
you receive the Equipment, you agree to inspect it and to verify by telephone
such information as we may require. If we request, you will send us a written
certificate of acceptance or other evidence of acceptance. ONCE WE ACCEPT THE
LEASE, YOU MAY NOT CANCEL IT DURING THE FULL LEASE TERM. If you have signed a
purchase contract for the Equipment, by signing this Lease you have assigned it
to us, effective when we pay for the Equipment.
2. RENT. You agree to pay us Monthly Rent for the use of the Equipment, plus
applicable taxes, each month during the Term. The first Monthly Rent is due on
the date you accept the Equipment and each month after that on the date we tell
you. Monthly Rent must be received by that date at the address we tell you,
whether or not you receive an invoice. If required, you will pay a security
deposit when you sign this Lease. As long as you are not in default, we may
either apply your security deposit to the last Monthly Rent, or to your Purchase
Option or we may refund the security deposit to you when the Term expires and
the Equipment is returned in accordance with paragraph 14. To the extent allowed
by law, we may charge you a reasonable fee to cover our documentation and
investigation costs. You also authorize us to insert or correct missing or
incorrect information on the Lease, including your official name. We will send
you copies of such changes.
3. NET LEASE. YOU AGREE THAT YOU ARE UNCONDITIONALLY OBLIGATED TO PAY ALL
MONTHLY RENT AND OTHER AMOUNTS DUE FOR THE ENTIRE LEASE TERM NO MATTER WHAT
HAPPENS EVEN IF THE EQUIPMENT IS DAMAGED OR DESTROYED, IF IT IS DEFECTIVE, OR IF
YOU NO LONGER CAN USE IT. YOU ARE NOT ENTITLED TO REDUCE OR SET-OFF AGAINST
MONTHLY RENT OR OTHER AMOUNTS DUE TO US OR TO ANYONE TO WHOM WE TRANSFER THIS
LEASE FOR ANY REASON WHATSOEVER. EACH LEASE IS A `FINANCE LEASE' AS DEFINED IN
ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE, KNOWN IN IOWA AS ARTICLE 13.
4. DISCLAIMER OF WARRANTIES. THE EQUIPMENT IS BEING LEASED TO YOU IN AN AS-IS
CONDITION. NO SALESMAN OR AGENT OF VENDOR IS AUTHORIZED TO CHANGE ANY TERM OF
THIS LEASE. YOU AGREE THAT WE DO NOT MANUFACTURE THE EQUIPMENT, THAT WE DO NOT
REPRESENT THE MANUFACTURER OR THE VENDOR, AND THAT YOU HAVE SELECTED THE
EQUIPMENT BASED UPON YOUR OWN JUDGMENT. YOU HAVE NOT RELIED ON ANY STATEMENTS
MADE OR NOT MADE BY US OR OUR EMPLOYEES. WE DO NOT MAKE ANY REPRESENTATION OR
WARRANTY OF ANY KIND, DIRECT OR INDIRECT, EXPRESS OR IMPLIED, AS TO THE
SUITABILITY, DURABILITY, DESIGN, OPERATION OR CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY, FITNESS FOR USE FOR PARTICULAR PURPOSES OR OTHERWISE. WE SHALL
NOT BE LIABLE TO YOU AND YOU WILL NOT MAKE ANY CLAIM AGAINST US FOR ANY LOSS,
DAMAGE, OR EXPENSE OF ANY KIND CAUSED DIRECTLY OR INDIRECTLY BY THE EQUIPMENT.
5. TITLE AND SECURITY INTEREST. If the purchase option amount is $1.00 (a
"Dollar Purchase Option"), you shall have title to the Equipment immediately
upon delivery and shall be deemed to be the owner of the Equipment as long as
you are not in default under this Lease. In the event of a default, title to the
Equipment shall revert to us, free and clear of any rights or interests you may
have in the Equipment. If the Purchase Option is other than $1.00 (a "Stated
Purchase Option"), the Equipment is and shall remain our sole property during
the Lease Term. Unless you are in default under this Lease, you shall have the
right to peacefully possess and use the Equipment during the Lease Term. To
secure all of your obligations to us under this Lease, you hereby grant us a
security interest in (a) the Equipment, to the extent of your interest (b)
anything attached or added to the Equipment at any time (c) any money or
property from the sale of the Equipment, and (d) any money from an insurance
claim if the Equipment is lost or damaged. You agree that the security interest
will not be affected if this Lease is changed in any way. You hereby appoint us
(or our agent) as your true and lawful attorney-in-fact to affix your signature
to UCC financing statements prepared and filed on your behalf by us (or our
agent) with the same force and effect as if you had signed such financing
statements.
6. USE, MAINTENANCE, REPAIR. You will not move the Equipment from the Equipment
Location without our advance written consent. You will provide us reasonable
access to the Equipment so that we can check the Equipment's existence,
condition, and proper maintenance. You will use the Equipment according to its
intended purpose, as required by all applicable manuals and instructions, and
keep it eligible for any manufacturer's certification. At your own cost and
expenses, you will keep the Equipment in good repair, condition and working
order, except for ordinary wear and tear. All replacement parts and repairs will
become our property. You will not make any permanent alterations to the
Equipment. You may enforce all warranty rights, unless you are in default under
this Lease. For a description of those warranty rights you need to contact your
vendor.
7. TAXES. You agree to pay when due, either directly or by reimbursing us, all
taxes, fines, and penalties relating to this Lease or the Equipment. We will
file any required personal property tax returns, unless we agree otherwise in
writing. You agree to pay any reasonable fee required in order for us or our
designee to complete the calculation and filing of required personal property
tax returns. If this Lease contains a Dollar Purchase Option, you agree to file
any personal property tax returns. We do not have to contest any tax on the
Equipment or this Lease. Upon the termination or expiration of this Lease and if
applicable, you agree to promptly remit our estimate of personal property taxes,
which may become due and which relate to the Equipment .
8. INDEMNITY. We are not responsible for any injuries, damages, penalties,
claims or losses, including legal expenses, incurred by you or any other person
caused by the installation, transportation, manufacture, selection, purchase,
lease, ownership, possession, maintenance, condition, use, return, or
disposition of the Equipment. You agree to indemnify and reimburse us for and to
defend us against any claims for such losses, damages, penalties, claims,
injuries or expenses. This indemnity continues even after the Lease has expired
for acts and omissions that occurred during the Lease Term, whether or not
insurance coverage is in effect.
9. LOSS OR DAMAGE. You are responsible for any loss, destruction or damage to
the Equipment, whether or not insured, from the date the Equipment is shipped to
you until it is returned to us. You are required to pay all Monthly Rent even if
there is any such loss or damage. You must notify us in writing immediately of
any loss or damage. Then, at our option, you will either (a) repair the
Equipment so that it is in good condition and working order, eligible for any
manufacturer's certification, or (b) pay us the amount required by Section 12.
We will apply any insurance proceeds that we receive for the Equipment to reduce
any of your unpaid obligations.
10. INSURANCE. You agree to keep the Equipment fully insured against loss until
you have met all your obligations under this Lease. You agree to obtain a
general public liability insurance policy, covering both personal injury and
property damage, from a company that is acceptable to us. You will include us as
an additional insured or loss payee on such policy, whichever is applicable. You
agree to provide us with a certificate or other evidence of insurance acceptable
to us. We are under no duty to tell you if your insurance coverage is adequate.
If any insurance proceeds are paid as a result of any loss or damage to the
Equipment, you agree that such insurance proceeds will be paid first to us to
satisfy your obligations under this Lease. If you do not provide evidence of
proper insurance within 10 days of our request, we will have the right but not
the duty, to obtain such insurance at your expense on our interest in the
Equipment. You will pay all premiums and related charges, including interest at
up to 1.5% per month, or the highest legal rate, if less.
11. DEFAULT. You will be in default under this Lease if any of the following
happens: (a) we do not receive any Monthly Rent or other payment within 10 days
after its due date; (b) you or any of your guarantors break any promises in this
Lease or any guaranty and do not correct the problem within 20 days after we
send you written notice; (c) you or any of your guarantors become insolvent, are
liquidated or dissolved, merge, transfer substantially all of your stock or
assets, stop doing business or assign your rights or property for the benefit of
creditors; (d) a petition is filed by or against you or any of your guarantors
under any bankruptcy or insolvency law; (e) (for individuals) you or any of your
guarantors die or have a guardian appointed; or (f) you (or any affiliate) is in
default under any other agreement between you and us or our affiliate.
12. REMEDIES. If there is a default, we, at our sole discretion, may do any or
all of the following: (a) give you written notice of the default; (b) require
you to pay immediately to us, as compensation for loss of our bargain and not as
a penalty, (I) all unpaid Monthly Rents for the remainder of the Lease Term,
plus (ii) any other amounts due, including expenses we incur to take possession,
hold, repair and dispose of the Equipment, plus (iii) the Purchase Option
Amount, if stated, or if no fixed Purchase Option amount is given, our
reasonable estimate of the fair market value of like equipment. We will discount
all future Monthly Rents to their present value at the higher of the prime rate
of Firstar Bank in effect at the time of the default or 10%, (c) require you to
return the Equipment as provided in Section 14; and/or (d) pursue any other
remedy we may have. In the event you do not return the Equipment, we or our
agent may peacefully repossess it without a court order and you will not make
any claims against us or the Equipment for trespass, damage or any other reason.
Although you agree that we do not have to do so, if we sell the Equipment, we
will give you credit for the amounts we receive. You will immediately pay us any
amounts still owing. If this is not a true lease and if we are paid a price
which exceeds the amount you owe us plus our costs of sale, we will give you the
excess. You agree that we only need to give you 10 days advance notice of any
sale and no notice of advertising. You agree to pay all our costs of enforcing
our rights against you, including attorney's fees. You agree that we will keep
all of our rights against you, even if we do not chose to enforce them at the
time of the default. You also agree that we may telephone you at any reasonable
time to enforce our rights.
13. YOUR OPTIONS AT LEASE END. Provided you are not in default, upon the
expiration of a Lease with a Dollar Purchase Option, you shall purchase the
Equipment at the end of the Lease Term for such amount and we will release any
security interest we may have in the Equipment. Provided you are not in default,
upon expiration of a Lease with a Stated Purchase Option, you shall have the
option to (a) return the Equipment in accordance with Section 14; or (b) on 60
days advance written notice to us, purchase all but not less than all of the
Equipment for the Purchase Option amount, if stated, or if no fixed Purchase
Amount is given, our reasonable estimate of the fair market value of like
equipment as of the end of the Lease Term. If you elect to purchase the
Equipment, upon payment of the agreed upon price including all sales tax and
other applicable taxes, we will transfer the Equipment to you AS-IS-WHERE-IS,
WITHOUT ANY REPRESENTATION OR WARRANTY. If you fail to exercise the purchase
option (a) you will continue to pay Monthly Rent until the Equipment is received
and accepted by us pursuant to Section 14, and (b) all of the terms of the Lease
shall continue to apply, including your obligation to pay Monthly Rent.
14. RETURN OF EQUIPMENT. If (a) a default occurs, (b) you do not purchase the
Equipment at the end of the Lease Term, or (c) you do not extend the Lease Term,
you will immediately return the Equipment to any location(s) we may designate in
the continental United States. The Equipment must be properly packed for
shipment in accordance with the manufacturer's recommendation or specification,
freight prepaid and insured, maintained in accordance with Section 6, and in
Average Saleable Condition. Average Saleable Condition means that all of the
Equipment is immediately available for use by a third party buyer, user, or
lessee, other than yourself, without the need for any repair or refurbishment.
All Equipment must be free of markings. You will pay us for any missing or
defective parts or accessories. You will continue to pay Monthly Rent until the
Equipment is received and accepted by us.
15. ASSIGNMENT. YOU MAY NOT SELL, TRANSFER, ASSIGN, PERMIT A LIEN ON OR SUBLEASE
THE EQUIPMENT. We may, without notifying you, sell, assign, or transfer this
Lease and our rights to the Equipment. You agree that if we do so, the new owner
will have the same rights and benefits that we now have, but will not have to
perform any of our obligations. You agree that the rights of the new owner will
not be subject to any claims, defenses, or set-offs that you may have against
us. If you are given notice of a new owner, you agree to respond to any requests
about this Lease and if directed, to pay the new owner all Monthly Rent and
other amounts due under this Lease.
16. COLLECTION EXPENSES, OVERDUE PAYMENT, TERMINATION. You agree that we can,
but do not have to, take on your behalf any action which you fail to take to
comply with this Lease, and any expenses we incur will be in addition to the
Monthly Rent which you owe us. We may charge you a late charge to cover
collection costs, equal to 10% of any late payment, but not more than the
highest legal rate. To the extent allowed by law, any late payment will continue
to accrue interest at a rate not to exceed the highest legal rate from the due
date until paid. If you so request and we permit the early termination of this
Lease, you agree to pay a fee for such privilege.
17. YOUR REPRESENTATIONS. You state for our benefit that as of the date of this
Lease, (a) you have the lawful power and authority to enter into this Lease; (b)
the individuals signing this Lease have been duly authorized to do so on your
behalf; (c) by entering into this Lease, you will not violate any law or other
agreement to which you are a party; and (d) you are not aware of anything that
will have a material negative effect on your ability to satisfy your obligations
under this Lease.
18. YOUR PROMISES. You will take any actions we reasonably request to protect
our rights in the Equipment and to meet your obligations under this Lease.
During the term of this Lease, and any renewal, you agree to provide us with all
financial information we may reasonably request and permit us to obtain credit
reports and make other credit inquiries on you as we deem necessary.
19. MISCELLANEOUS. This Lease contains our entire agreement and supersedes any
conflicting provision of equipment purchase orders. TIME IS OF THE ESSENCE IN
THIS LEASE. If a court finds any provision of this Lease to be unenforceable,
the remaining terms of the Lease remain in effect. All our and your written
notices must be sent by certified or first class mail or recognized overnight
delivery service, postage prepaid, to your or our address given above or at such
other address as you or we may have been given in writing.
20. WAIVERS. WE AND YOU EACH AGREE TO WAIVE AND TO TAKE ALL REQUIRED STEPS TO
WAIVE ALL RIGHTS TO A JURY TRIAL. To the extent you are permitted by applicable
law, you waive all rights and remedies conferred upon a lessee by Article 2A
(sections 508-522) of the Uniform Commercial Code including but not limited to
your rights to (a) cancel or repudiate this Lease; (b) reject or revoke
acceptance of the Equipment (c) recover damages from us for any breach of
warranty or for any other reason; and (d) grant a security interest in any
Equipment in your possession. To the extent you are permitted by applicable law,
you waive any rights you now or later may have under any statute or otherwise
which; (I) require us to sell or otherwise use any Equipment to reduce our
damages, (ii) require us to provide you with notice of default, intent to
accelerate amounts becoming due or actual acceleration of amounts becoming due,
or (iii) may otherwise limit or modify any of our rights or remedies. ANY ACTION
YOU TAKE AGAINST US FOR ANY DEFAULT, INCLUDING BREACH OF WARRANTY OR INDEMNITY,
MUST BE STARTED WITHIN ONE (1) YEAR AFTER THE EVENT WHICH CAUSED IT. We will not
be liable for specific performance of this Lease or for any losses, damages,
delay or failure to deliver the Equipment.
Exhibit 10.22
ADDENDUM A TO LEASE AGREEMENT
Notwithstanding anything to the contrary in the attached Lease dated May 30,
1997 number 000-00000-000 (collectively the "Lease") between Lessor and Lessee:
1) Lessee hereby consents to Lessor collaterally assigning and granting a
security interest in the Lease plus the leased property described therein (the
"Collateral Assignment") to Firstar Bank Milwaukee N.A. (the "Assignee").
Furthermore, the Lessee agrees that the Collateral Assignment will not
materially change its duties under the Lease or materially increase the burden
or risk imposed on Lessee under the Lease or involve actual delegation of any
material performance by Lessor. Lessee hereby waives any claims, defenses or
termination of rights available under Article 2A-303 of the Uniform Commercial
Code against Assignee related to the Collateral Assignment or Assignee's
subsequent disposition of the Lease or the leased property described therein to
any subsequent transferee or purchaser.
2) Lessee acknowledges that the Collateral Assignment prohibits modifications or
rescissions of the Lease except upon the written consent of Lessor and Assignee.
3) Lessee acknowledges that each Lease constitutes a separate and independent
lease of personal property, and is independently enforceable by Lessor and
Assignee from any other lease and without the joinder of any other parties; and
Lessee waives any defenses or objections related to the foregoing.
4) Lessee acknowledges that the only "original" Lease is the Lease currently in
the possession of Lessor, which will be subsequently assigned to Assignee and
will ultimately be in Assignee's possession, and that all other Leases
constitute only copies and are all non-originals.
Accepted by initialing these 29 day of May, 1997.
Lessee: Xxxxxx Xxxx Xxxxx, Inc.
________________________________
Lessor: Xxxxxxx Xxxxxx & Company Leasing, Inc.
________________________________
ADDENDUM B
This Addendum A (the "Addendum") is attached to and made apart of that
Lease Agreement # 000-00000-000 dated May 30, 1997 (the "Lease Agreement")
executed by and between Xxxxxxx Xxxxxx & Company Leasing, Inc. ("Lessor") and
Xxxxxx Xxxx Xxxxx Inc. ("Lessee").
All terms defined in the Lease Agreement will have the same meaning
when used in this Addendum unless redefined herein.
Notwithstanding anything to the contrary stated herein, in the event
the Lessee requests to prepay the Lease Agreement the Lessor will grant the
request so long as the prepayment is on the following terms:
1) If the prepayment takes place within the first 12 months of the
Lease Agreement, Lessee will pay to the Lessor, only Lessor's net investment
(Lessor's Equipment Cost) plus all accrued interest due through the date of the
payoff plus any additional accrued interest so that when paid in full (combined
monthly payments and accrued interest), Lessor will have received interest equal
to one full year of interest, which both parties agree is at a rate of fourteen
percent (14%) per annum;
OR
2) If the prepayment takes place after the end of the 12th month of the
Lease Agreement, Lessee must pay in accordance with the terms of the Lease
Agreement including payment of the FMV Purchase Option.
All other terms and conditions remain the same.
LESSOR: LESSEE:
Xxxxxxx Xxxxxx & Company Xxxxxx Xxxx Xxxxx Inc.
Leasing, Inc.
By:_____________________________ By:___________________________
Title:__________________________ Title:________________________