EXHIBIT 10.14
MASTER LEASE AGREEMENT
Lessee Full Name and Full Address: Lease No.
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THE WHITE HOUSE, INC.
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Name and Phone No. of Lessee Contact: ▇▇▇▇▇ ▇▇▇▇▇▇
Lessee Form of Organization: CORPORATION Fed Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
(corporation, partnership, limited Date of Master Lease
liability company, individual, etc.): Agreement:
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Lessee's State of Organization: MD Lessee's State Organization
(if a corporation or registered Identification Number: D01984772
organization
For and in consideration of the mutual promises set forth below. CARLTON
FINANCIAL CORPORATION ("Lessor") and the lessee named above ("Lessee") agree as
follows:
1. MASTER LEASE. This Master Lease Agreement ("Master Lease") provides
terms and conditions the parties hereto intend be applicable to
various lease transactions. Each lease contract shall be evidenced by
a Lease Schedule, in the form attached hereto as Exhibit A, executed
by Lessor and Lessee that explicitly incorporates the provisions of
this Master Lease Agreement and sets forth specific terms of that
particular lease contract (each such Equipment Schedule, as it
incorporates this Master Lease, shall be called "this Lease"). Where
the provisions of a Lease Schedule conflict with the terms of this
Master Lease, the provisions of the Lease Schedule shall prevail. Each
Lease Schedule shall constitute a complete and separate lease
agreement independent of all other Lease Schedules and without any
requirement of being accompanied by an originally executed counterpart
of this Master Lease Agreement. One originally executed counterpart of
the Lease Schedule shall be stamped "Original" and retained by the
Lessor. If more than one counterpart of the Lease Schedule is executed
by Lessor and Lessee, all other counterparts shall be stamped
"Duplicate Original." Only transfer of possession or control by the
Lesser of the originally executed counterpart stamped "Original" shall
be effective for purposes of perfecting an interest in the Lease
Schedule by possession. This lease is subject to the terms and
conditions as stated on the Lease Commitment letter dated June 17,
2002.
2. NO WARRANTIES. Lessee agrees that it has selected each item of
Equipment and other property (the "Equipment") described in the Lease
Schedule based upon its own judgment and disclaims any reliance upon
any statements or representations made by Lessor. Lessee acknowledges
the supplier of the Equipment is not Lessor's agent. LESSOR MAKES NO
EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE EQUIPMENT AND
SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE AND ANY LIABILITY FOR CONSEQUENTIAL DAMAGES
ARISING OUT OF THE USE OR INABILITY TO USE THE EQUIPMENT. LESSEE
AGREES TO PAY THE RENT REQUIRED HEREUNDER WITHOUT REGARD TO THE
CONDITION OF THE EQUIPMENT.
3. FINANCE LEASE. Lessor and Lessee agree that this Lease is a "finance
lease" within the meaning of Article 2A of the Uniform Commercial
Code. The parties agree that the Lessor has not selected, manufactured
or supplied the Equipment. Lessee acknowledges receipt of a copy of
the contract evidencing Lessor's purchase of the Equipment. THERE ARE
NO WARRANTIES OR OTHER RIGHTS PROVIDED TO THE LESSEE BY THE LESSOR OR
THE SUPPLIER OF THE EQUIPMENT IN CONNECTION WITH THIS LEASE EXCEPT AS
DESCRIBED HEREIN.
4. NET AND NONCANCELLABLE LEASE. This is a net Lease and Lessee's
obligation to pay the rent and other amounts due hereunder is
unconditional and not subject to abatement, reduction or setoff,
defense, counterclaim or interruption of any kind. This Lease is a
non-cancelable lease and will not terminate in the event of any damage
to or destruction of the Equipment. To
the extent permitted by law, Lessee waives the right to (i) cancel
this Lease; (ii) repudiate this Lease; (iii) reject the Equipment;
(iv) revoke acceptance of the Equipment; (v) recover damages from
Lessor for any breaches of warranty or for any other reason; (vi)
grant a security interest in the Equipment to a third party (vii)
deduct from rents all or any part of claimed damages resulting from
Lessor's default, if any. This Lease may be terminated only as
expressly provided herein.
5. TERM AND AUTOMATIC EXTENSION. The initial term of this Lease (the
"Initial Term") respecting an item of Equipment shall commence and end
on the dates stated on the Lease Schedule as the commencement and
termination dates for that item of Equipment. Lessee or Lessor may
terminate this Lease at the expiration of the Initial Term by giving
the other at least 90 days prior written notice of termination. If
neither Lessee nor Lessor gives such notice, then the term of this
Lease shall be extended automatically on the same rental and other
terms set forth herein (except that in any event rent during any
extended term shall be payable in the amounts and at the times
provided in paragraph (7) for successive periods of one month until
terminated by either Lessee or Lessor giving the other at least 90
days prior written notice of termination.
6. SECURITY DEPOSIT AND ADVANCE RENTALS. The Security Deposit or Advance
Rentals specified on each Lease Schedule shall be paid by Lessee to
Lessor upon the signing of the Lease Schedule. Following completion of
the term of this Lease for that Equipment, and provided there has been
no breach of this Lease by Lessee, Lessor shall refund to Lessee
without interest the security deposit that relates to Equipment whose
lease term has expired. No security deposit shall be applied by the
Lessee to the last rent payment. Any Advance Rentals paid by Lessee
shall be applied to the last rent payments due during the Initial Term
of this Lease, except as otherwise agreed by Lessor.
7. RENT. Lessee shall pay Lessor as rent for the Equipment the periodic
amount shown on the Lease Schedule plus any sales or use tax levied
with respect to the Equipment. The rent for each period (which shall
be monthly unless otherwise provided in the Lease Schedule) shall be
paid in advance beginning on the commencement date shown on the Lease
Schedule and thereafter on the first day of each rent period unless
otherwise provided in the Lease Schedule. The rent for any partial
month or other period shall be paid at the rate of 9.5% (simple
interest) of the amount funded. Any rent, tax payment or other amount
due under this Lease which is not paid when due shall bear interest at
the rate of one and one-half (1.5%) percent per month or, if less, the
highest rate permitted by law. Lessee agrees to pay Lessor late
charges.
8. TITLE. Title to the Equipment shall at all times remain in Lessor and
Lessee shall protect and defend the title of Lessor and keep it free
of all claims and liens other than those of Lessee hereunder or
created by Lessor. If this Lease shall be construed by a court to be a
lease "intended as security" and not a "true" lease, then Lessee, to
secure all of Lessee's payment and performance obligations under this
Lease, hereby grants to Lessor a first priority security interest in
the Equipment (including, without limitation, all inventory, fixtures
or other property comprising the same) together with all related
software (embedded therein or otherwise) and general intangibles, all
additions, attachments, accessories thereto whether or not furnished
by the supplier of the Equipment, all subleases, chattel paper,
security deposits relating thereto, and any and all substitutions,
replacements or exchanges for any such item of Equipment or other
collateral and any and all insurance or other proceeds of the property
and other collateral to which a security interest is granted.
9. LAWS AND TAXES. LESSEE SHALL COMPLY WITH ALL LAWS AND REGULATIONS
RELATING TO THE EQUIPMENT AND ITS USE AND SHALL PROMPTLY PAY WHEN DUE
ALL SALES, USE, PROPERTY, EXCISE AND OTHER TAXES (EXCLUDING INCOME
TAXES) AND ALL LICENSE AND REGISTRATION FEES NOW OR HEREAFTER IMPOSED
BY ANY GOVERNMENTAL BODY OR AGENCY UPON THE EQUIPMENT OR ITS USE OR
THE RENTALS HEREUNDER. Lessee shall prepare and file all tax returns
relating to taxes for which Lessee is responsible hereunder which
Lessee is permitted to file under the laws of the applicable taxing
jurisdiction. Lessee agrees to indemnify and hold Lessor and any
Assignee (as defined below) harmless from, against and in respect of
any and all such taxes.
10. INSPECTION. Lessor shall have the right during normal business hours
to enter into and upon the premises where the Equipment is located for
the purpose of inspecting the same or observing its use.
11. ALTERATIONS. Without the prior written consent of Lessor, Lessee shall
not make any alterations, additions or improvements to the Equipment.
Any alteration, addition or improvement shall become the property of
Lessor and part of the Equipment for all purposes hereunder.
12. REPAIRS. Lessee, at its own cost and expense, shall keep the Equipment
in good repair, condition and working order and shall furnish or
purchase any and all parts, mechanisms, devices and labor required to
keep the Equipment in good mechanical and working order. If indicated
on the applicable Lease Schedule, Lessee shall at its own expense
cause the Equipment to be covered by a maintenance contract, with a
service organization acceptable to Lessor, at all times during the
lease term and until the Equipment has been returned to Lessor.
13. LOSS OR DAMAGE. Lessee hereby assumes and shall bear the entire risk
of loss, damage, theft and destruction to the
Equipment from any and every cause whatsoever (except normal wear and
tear resulting from proper use) during the period from and during the
delivery of the Equipment to Lessee until it is returned to Lessor. In
the event any item of Equipment shall become lost, stolen, destroyed,
damaged beyond repair, or rendered permanently unfit for any reason,
or in the event of condemnation or seizure, Lessee shall promptly pay
Lessor the sum of the following: (a) all rent and other amounts
payable by Lessee hereunder which are due but unpaid at the time of
computation; (b) the present value of all unpaid rents for the entire
balance of the Initial Term of this Lease (with respect to that
affected item or items of Equipment) at the time of computation,
computed using a discount rate of six percent (6%) per annum; (c) the
anticipated fair market value of such items of Equipment at the
expiration of the Initial Term of this Lease, which Lessor and Lessee
agree shall be conclusively deemed for this purpose to be equal to
____ percent (ten percent if no percentage has been specified) of the
original cost of such Equipment; (d) any Tax Loss suffered by Lessor
relating to such Equipment; (e) any set up costs related to such
Equipment that Lessor has not yet amortized; (f) any expenses incurred
by Lessor in enforcing its rights under this Agreement; (g) any
interest on any past due amounts as provided elsewhere in this
Agreement. Any insurance proceeds received by Lessor on insurance
purchased by Lessee shall be credited to Lessee's obligation under
this section and Lessee shall be entitled to any surplus.
14. DELIVERY AND ACCEPTANCE. Unless otherwise provided in a Lease
Schedule, Lessee shall pay the cost of transportation of the Equipment
to Lessee. Lessee shall bear the risk of loss during such
transportation. Upon delivery Lessee shall sign and deliver to Lessor
an acceptance certificate satisfactory to Lessor.
15. LOCATION OF USE. Unless otherwise stated on a Lease Schedule, the
Lessee will cause the Equipment subject to that Lease Schedule to be
located (after initial delivery to Lessee) at various store addresses
as provided by Lessee until such time as that Equipment is returned to
Lessor or returned in accordance with Lessor's instructions.
16. RETURN OF EQUIPMENT. Upon the expiration of or earlier termination of
this Lease with respect to an item of Equipment, Lessee shall return
the same directly to Lessor at its offices in Minneapolis, Minnesota,
or such other location as Lessor designates, in good repair, condition
and working order (ordinary wear and tear resulting from proper use
thereof alone excepted), completed and ready for further use. Lessee
shall pay all transportation and other expenses relating to such
return. Lessee authorizes Lessor to sell the Equipment while located
upon Lessee's premises. In the event Lessee breaches this section,
Lessor may, in lieu to its other remedies, require Lessee to purchase
the items of Equipment as to which the breach as occurred on the same
terms as if Lessee were exercising an option to purchase such
Equipment under this Agreement (and whether or not such an option was
granted to Lessee).
17. INSURANCE. Lessee at its expense shall provide insurance coverage in
amounts and with insurance carriers acceptable to Lessor for all risks
of: (a) loss, theft, damage or destruction to the Equipment with
coverage not less than the original cost of the Equipment (excluding
depreciation); and (b) public liability and property damage covering
personal injuries, death or property damage resulting from the
ownership, maintenance, use, operation or transportation of the
Equipment, with coverage of not less than $1,000,000 per occurrence.
Each of the insurance policies providing said coverage shall name
Lessor and any Assignee as loss payee and additional insured, provide
that the policy may not be canceled or materially altered without
thirty (30) days prior written notice to Lessor, and be primary
without right of contribution from any insurance carried by Lessor.
Lessee shall, if requested by Lessor, provide Lessor with a
certificate(s) evidencing said coverage prior to taking possession of
the Equipment. Lessee hereby irrevocably 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 or
returned premium under any insurance policy of Lessee's.
18. INDEMNITY. Lessee shall and does hereby agree to indemnify, defend and
hold harmless Lessor and any Assignee, and each of their directors,
officers, employees, agents of affiliates from any and all claims,
demands, actions, suits, proceedings, costs, expenses, damages, and
liabilities (including attorneys' fees) arising out of, connected with
or resulting from the delivery, possession, use, operation,
maintenance, repair or return of Equipment by Lessee or its employees,
agents, customers or invitees or vendors. Lessee's obligations under
the preceding sentence shall survive expiration of any rental term or
the termination of this Agreement.
19. REPRESENTATIONS AND WARRANTIES BY LESSEE. Lessee represents and
warrants to Lessor that: (a) this Lease constitutes the Lessee's
legal, valid and binding obligation and is enforceable against Lessee
in accordance with its terms; (b) Lessee's entry into and performance
under this Lease will not result in any breach, default or violation
under Lessee's charter documents (articles of incorporation and bylaws
in the case of a corporation or partnership agreement in the case of a
partnership or articles of organization and operating agreement in the
case of a limited liability company) or any other agreement to which
Lessee is a party or to which it or its property is subject; (c) there
are no suits or proceedings pending or threatened before any court,
government agency or arbitrator which, if determined adversely to
Lessee, would have a material adverse effect on its financial
condition or ability to perform its obligations under this Lease; (d)
that any financial statements or other information which Lessee has
furnished Lessor concerning the business or condition of Lessee was
true, correct and complete at the time furnished or as of the date of
such financial statements; (e) the Equipment shall remain personal
property; with respect to any
Equipment that is the subject of any sale and leaseback transaction
pursuant hereto, Lessee has good title to, rights in, and/or power to
transfer all of the same. The Equipment is removable from and is not
essential to the premises upon with it is located regardless of its
attachment to realty, and Lessee agrees to take such action at its
expense as may be necessary to prevent any third party from acquiring
any interest in the Equipment as a result of its attachment to realty
with respect to all of the Equipment leased hereto.
20. FINANCIAL STATEMENTS. Upon request by Lessor, Lessee will promptly
provide statements for its most recently completed fiscal year end or
quarter and any other financial information reasonably requested.
21. ASSIGNMENT BY LESSOR. Lessor may from time to time without notice to
Lessee sell, assign, pledge, transfer or convey to a third party (each
an "Assignee") all or part of Lessor's right, title and interest in
this Lease, the Equipment, or any sums payable therefor. Lessor may
grant a security interest in the same to such Assignee as collateral
security for any loans or advances made or to be made to Lessor by
such Assignee. Lessee, upon receipt of notice of any such transfer,
assignment or security interest and instructions from Lessor shall pay
its obligations under this Lease to the Assignee (or to any other
party designated by the Assignee). Upon any such transfer, assignment
or granting of a security interest by Lessor, Lessee's obligations
hereunder with respect to Assignee, including, without limit, its
obligation to pay the Assignee under rents and other sums due and to
become due under this Lease, shall be absolute and unconditional, and
shall not be subject to any abatement, reduction, recoupment, defense,
offset or counterclaim for any reason, including but not limited to
any defect in the Equipment, the condition, design, operation or
fitness for use or any loss or destruction of the Equipment or any
part thereof, the prohibition of or other restriction against Lessee's
use of the Equipment, the interference with such use by any person or
entity, any failure by Lessor to perform any of its obligations herein
contained, or any other cause, whether similar or dissimilar to the
foregoing. Upon notice of any intended transfer, assignment, or
granting of a security interest: (a) Lessee shall promptly submit to
Lessor such documents as may be reasonably required by the intended
Assignee, in form and substance satisfactory to the intended Assignee,
including without limitation: (1) a certificate that the Equipment was
delivered and accepted; (2) if Lessee is a corporation, a certified
copy of resolutions adopted by Lessee's Board of Directors authorizing
execution of this Lease; (3) an acknowledgement to the Lessor's
transfer, assignment or granting of a security interest; (4) a UCC-1
Financing Statement; (b) In the event of any such assignment,
transfer, or granting of a security interest: (1) Lessee shall send
copies of any notices which are requested hereunder to be sent to
Lessor to the Assignee as well as to Lessor; (2) Lessee shall not
permit this Lease to be amended or any provisions thereof to be waived
without the prior written consent of the Assignee; (3) Lessee agrees
not to look to the Assignee to perform any of Lessor's obligations
hereunder; (4) Lessee agrees that Assignee shall be exclusively
entitled to all of the rights and remedies provided to the Lessor
under this Lease; (c) No such transfer, assignment or granting of a
security agreement by Lessor shall relieve Lessor of any of its
obligations under this Lease or shall limit Lessee's rights to look to
Lessor for the performance of such obligations.
22. ASSIGNMENT BY LESSEE. LESSEE SHALL NOT ASSIGN, TRANSFER, PLEDGE, OR
HYPOTHECATE THIS LEASE, THE EQUIPMENT OR ANY PART THEREOF, OR ANY
INTEREST THEREIN. LESSEE SHALL NOT SUBLET OR LEND THE EQUIPMENT, OR
ANY PART THEREOF, OR PERMIT THE EQUIPMENT OR ANY PART THEREOF TO BE
USED BY ANYONE OTHER THAN LESSEE WITHOUT THE PRIOR WRITTEN CONSENT OF
LESSOR (OR FOLLOWING AN ASSIGNMENT, ANY ASSIGNEE OF WHICH THE LESSEE
HAS KNOWLEDGE OF) WHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD. If
Lessee is a corporation or a partnership, the change in ownership of
50% or more of the ownership interest in Lessee within a 12 month
period without the written consent of Lessor, which shall not be
unreasonably withheld, constitutes a prohibited assignment hereunder.
Subject always to the foregoing, this Lease inures to the benefit of,
and is binding upon the heirs, legatees, personal representatives,
successors, and assigns of the parties hereto. No sale, assignment or
sublease, whether authorized by Lessor or in violation of the terms
hereof, shall relieve Lessee of its obligations and Lessee shall
remain primarily liable hereunder and under each Lease Schedule.
Assigns shall become bound as a "new debtor" to this Master Lease and
the Lease Schedule(s) as set forth under UCC Section 9-203(e).
23. DEFAULT. Any one of the following events shall constitute an "Event of
Default" hereunder: (a) Lessee shall fail to pay when due any
installment of rent or other amount due hereunder; (b) Lessee shall
fail to observe or perform any other agreement to be observed or
performed by Lessee hereunder; (c) Lessee, any guarantor of this
Lease, or any partner of Lessee if Lessee is a partnership shall cease
doing business as a going concern or make an assignment for the
benefit of creditors; (d) Lessee, any guarantor of this Lease, or any
partner of Lessee if Lessee is a partnership shall voluntarily file,
take any action to authorize the filing, or have filed against it
involuntarily, a petition for liquidation, reorganization, adjustment
of debt or similar relief under the federal or state bankruptcy or
insolvency law; (e) a trustee, receiver, or liquidator be appointed
for Lessee, any guarantor of this Lease, or for all or a substantial
part of the assets of Lessee or any guarantor; (f) any individual
Lessee or individual guarantor of this Lease, or partner of Lessee if
Lessee is a partnership, shall die; (g) an event of default shall
occur under any other obligation Lessee or any guarantor of this Lease
owes to Lessor; (h) an event of default by Lessee shall occur under
any agreement involving Lessee's or a guarantor's indebtedness to a
lender for borrowed money; or (i) Lessee shall have terminated its
corporate existence, consolidated with, merged into, or conveyed or
leased substantially all of its assets as an entity to any person
unless: (i) such person executes and delivers to Lessor an agreement
satisfactory in form and substance to
Lessor, in its sole discretion, which shall not be reasonably
withheld, containing such person's effective assumption and its
agreement to pay, perform, comply with and otherwise be liable for all
of Lessee's obligations having previously arisen, or then or
thereafter arising, under this Lease together with any documents,
Agreements investments, certificates, opinions and filings by Lessor;
and (ii) Lessor (and any Assignee) is satisfied as to the
creditworthiness of such person. In the event of a failure to comply
under A or B the Lessor is required to provide notice of default and
allow Lessee ten (10) days to cure.
24. REMEDIES. Upon the occurrence of an Event of Default and at any time
thereafter, Lessor or Assignee may exercise from time to time any one
or more of the following remedies: (a) terminate this Lease as to any
portion or all of the Equipment; (b) take immediate possession of any
or all of the Equipment; wherever situated, and for such purpose enter
upon any premises without liability for so doing; (c) hold, use,
lease, sell or otherwise dispose of any or all of the Equipment in
such manner as Lessor in its sole discretion may decide. With respect
to any exercise of its rights to recover and/or dispose of any
Equipment, Lessee acknowledges and agrees that Lessor shall have no
obligation, subject to the requirements of commercial reasonableness,
to clean up or otherwise prepare the Equipment for disposition; (d)
accelerate the due date of all remaining rent payments due hereunder
for the entire remaining Initial Term of this Lease, or any renewal
term then in effect, whereupon said amounts shall be immediately due
and payable; (e) recover the sum of: (i) any accrued and unpaid rent,
plus (ii) the present value of all future rentals reserved in this
Lease and contracted to be paid over the unexpired Initial Term of
this Lease (or any renewal period then in effect), discounted at the
rate of six percent (6%) per annum; plus (iii) the anticipated
residual value of the Equipment as of the expiration of this Lease or
any renewal thereof, (iv) any indemnity payment, if then determinable;
(v) all reasonable costs and expenses incurred by Lessor in any
repossession, recovery, storage, repair, sale, re-lease or other
disposition of the Equipment, including but not limited to costs of
transportation, possession, storage, refurbishing, advertising and
broker's fees together with all attorney's fees and cost incurred in
connection therewith or otherwise resulting from Lessee's default
(including any incurred at trial, on appeal or any other proceeding);
and (vi) the value of all tax benefits lost to Lessor as a result of
Lessee's default of the enforcement by Lessor of any remedy; plus
interest on each of the foregoing at the rate of one and one-half
(1 1/2%) per month ("default interest") (f) expend such monies as
Lessor deems appropriate to cure or mitigate the effect of the Event
of Default, or to protect the Lessor's interest in the Equipment and
this Lease, with all such sums to be immediately reimbursed to Lessor
by Lessee; (g) setoff Lessee's security deposit or any other property
of Lessee held by Lessor against any amount owed by Lessee to Lessor;
and (h) exercise any other remedy permitted by law, equity or any
other agreements with Lessee or any guarantor of this Lease. No remedy
given in this paragraph is intended to be exclusive and each shall be
cumulative. No express or implied waiver by Lessor of any Event of
Default shall constitute a waiver of any subsequent Event of Default.
25. NOTICES. Any written notices hereunder shall be deemed to have been
given when delivered personally or deposited in the United States
mails, postage prepaid, certified mail, return receipt requested, and
if to Lessee, mailed to its address set forth at the heading of this
Agreement or to such other address as may be last known to Lessor, and
if to Lessor, addressed to Carlton Financial Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇
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Lessor may hereafter specify in a written notice to Lessee.
26. LABELING. Lessee shall keep all Equipment free from any marking or
labeling which might be interpreted as a claim of ownership thereof by
Lessee or any party other than Lessor or anyone so claiming through
Lessor. If Lessor requests Lessee shall cause the Equipment to be
plainly marked or tagged to indicate Lessor's interest in the
Equipment.
27. FURTHER ASSURANCES. Lessee agrees to execute or otherwise authenticate
and deliver such other documents, records, financing statements or
instruments necessary to effect the transactions contemplated by this
Lease or requested by Lessor to document or protect Lessor's ownership
interest in the Equipment. Lessee authorizes Lessor to file all
documents (including all ucc financing statements and amendments
thereto) that Lessor deems necessary to perfect its interest in this
Lease and Equipment. Lessee shall provide written notice to Lessor not
less than thirty (30) days prior to any contemplated change in the
name, jurisdiction of organization or address of the chief executive
officer of Lessee, or any change in its state organizational
identification number (if applicable).
28. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
Lessor and Lessee. This Lease shall not be amended, altered, or
changed, or any obligation hereunder waived, except by written
agreement signed by the parties hereto. No agent or employee of Lessor
shall have the power to waive any of the terms or provisions hereof,
or to incur additional obligations on behalf of Lessor, unless such
waiver or additional obligations are evidenced by an agreement in
writing signed by a duly authorized officer of Lessor and by the
Lessee. No agent or employee of Lessor shall have the authority to
receive any payment of rentals or other sums accruing hereunder except
remittances made payable to the order of Lessor for purposes of
forwarding same to Lessor, and no agent or employee shall have any
power to endorse for collection or otherwise any of those remittances.
29. SEVERABILITY. If any provision of this Lease is held invalid, that
invalidity shall not affect the other provisions that can
be given without the invalid provisions, and to this end the
provisions of this Lease are declared to be severable.
30. GOVERNING LAW; FORUM; WAIVER OF JURY TRIAL. This Lease shall be deemed
entered into in Minnesota and governed by the laws of the State of
Minnesota without regard to the conflicts of laws principal of that
state. Lessor and Lessee hereby irrevocably consent to the
nonexclusive personal jurisdiction of and venue in any United States
or State of Minnesota court sitting in Minneapolis or St. ▇▇▇▇,
Minnesota over any dispute arising under or involving this Lease or
any guaranty of the Lessee's obligations under this Lease. LESSOR AND
LESSEE EACH WAIVES ITS RIGHTS, IF ANY, TO A JURY TRIAL.
31. POWER OF ATTORNEY. Lessee irrevocably authorizes and appoints Lessor
as its attorney in fact to complete, amend and execute on Lessee's
behalf financing statements in connection with this Lease and to
conform the description of the property (including serial numbers) and
any such financing statements or other documentation. Lessee will also
promptly execute and deliver to Lessor such further documents and take
further action as Lessor may request to more effectively carry out the
intent and purpose of this Lease.
IN WITNESS WHEREOF, the parties hereunto set their hands as of the
date first written above.
LESSOR: LESSEE:
CARLTON FINANCIAL CORPORATION THE WHITE HOUSE, INC.
BY: BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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TITLE: TITLE: VP, CFO
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494559_1
Master Lease Agreement No.: __________ Lease Schedule No. ___________
Lessor: CARLTON FINANCIAL CORPORATION
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Lessee: THE WHITE HOUSE, INC.
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Supplier: APROPOS
Description of Equipment:
Quantity Serial Number Type and Model Number
SEE ATTACHED SCHEDULE A FOR EQUIPMENT
LOCATION OF EQUIPMENT (IF DIFFERENT FROM LESSEE'S ADDRESS)
TOTAL COST
$362,811.65
LEASE COMMENCEMENT DATE: 8/1/02 SCHEDULE OF PAYMENTS TOTAL BASIC RENT
$11,620.85
INITIAL TERM IN MONTHS FROM INITIAL BASIC RENTAL
LEASE COMMENCEMENT DATE: 36 PAYMENT PAYMENT ADVANCE PAYMENT
RENTAL PAYMENT PERIOD Due Date: 1st and Last No. 2-35 $23,241.70
Amount: at: $11,620.85
$23,241.70 Due on 1st day of
/X/ Monthly / / Annually the month SECURITY DEPOSIT
/ / Quarterly / / Other - see PLUS APPLICABLE PLUS APPLICABLE SALES $
/ / Semi-annually additional provisions SALES AND USE TAX AND USE TAX
ADDITIONAL PROVISIONS
1. INCORPORATION OF THE STANDARD TERMS AND CONDITIONS. This Lease Schedule
incorporates the terms and conditions of the
Master Lease Agreement dated
_____________________ between Lessor and Lessee. Capitalized terms used in
this Lease Schedule and not otherwise defined shall have the meanings
ascribed thereto in the
Master Lease Agreement.
2. PURCHASE OPTION. PROVIDED THERE ARE NO CONTINUING EVENTS OF DEFAULT,
LESSEE MAY AT THE END OF THE LEASE TERM PURCHASE THE EQUIPMENT FOR $1.00.
3. ENTIRE AGREEMENT. This Lease Schedule, together with the incorporated terms
and conditions contained in the
Master Lease Agreement, constitutes the
entire agreement between Lessee and Lessor and supersedes all prior and
contemporaneous writings, understandings, and agreements. No waiver,
consent, modification or change of terms of this Lease shall bind either
party unless in writing signed by both parties, and then such waiver,
consent, modification, or change shall be effective only in the specific
instance and for the specific purpose given. Any terms and conditions of
any purchase order or other documents submitted by Lessee in connection
with this Lease which are in addition to or inconsistent with the terms and
conditions of this Lease will not be binding on Lessor and will not apply
to this Lease. Lessee by the signature below of its authorized
representative acknowledges that it has read this Lease Agreement,
understands it, and agrees to be bound by its terms and conditions.
DATED:
----------------------------
Lessor: CARLTON FINANCIAL CORPORATION LESSEE: THE WHITE HOUSE, INC.
By: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------- --------------------------------
Its: Its: Vice President Finance &
------------------------------------- Administration, CFO
-------------------------------
494514_1
EXHIBIT A
SCHEDULE A OF EQUIPMENT TO LEASE SCHEDULE NO. 1
TO
MASTER LEASE AGREEMENT DATED __________
BETWEEN CARLTON FINANCIAL CORPORATION (LESSOR)
AND THE WHITE HOUSE, INC., (LESSEE)
VENDOR:
QTY DESCRIPTION
1 EVO D500 DT P4 1.7 20G8 128MB
1 KDS 15IN .28 50 HZ 1024X768
1 MULTITECH 33.6 EXT FAX MODEM
1 US ROBOTICS 33.6 EXT. FAX MODEM
1 HP 940C DESK JET 600DPI
1 256MB SYNCH DRAM 133MHZ DIMM
1 CPQ ML570T X900-2MB CACHE DUAL
2 CPQ P3900 X 2MB CPU KIT F/570
2 CPQ 2GB PC 100 SDRAM KIT 4X512
4 CPQ 36GB 56K SCSI UB UNIVERSAL
1 CPQ 431 SMART ARRAY CONTROLLER
1 LINKSYS PROCONNECT SWITCH BOX
3 LINKSYS PS2 CABLE KIT F/11770
1 CPQ 20/40GB DDS4 INT DAT DRIVE
10 SONY DDS4 20/40G DAT TAPE 150M
1 APC SMART UPS 3000VA 120V
1 CPQ ML350 G21.13GHZ 512/126MB
1 CPQ 512 MB PC133MHZ SDRAM ML350
2 CPQ 36GB HP ULTRA3 10K UNIVERS
1 CPQ 431 SMART ARRAY CONTROLLER
1 COMPUTONE RAS 2004
1 INF METACUBE ROLAP 19 USER
1 APROPOS CUBED
1 WINDOWS 2000 SERVER ED 10 USER
1 WINDOWS 2000 SERVER 5 CLIENT
1 CPQ 40/80G INT DLT TAPE DRIVE
1 CPQ DLT 40/80GB TAPES 21 PK
1 CPQ 256MB PC133MHZ SDRAM ML350
15 APROPOS CUBED
7 APROPOS CUBED
2 CPQ 36GB HP ULTRA3 10K UNIVERS
2 CPQ 512MB PC133MHZ SDRAM ML350
1 CPQ ML350 G21.13GHZ 512/128MB
1 CPQ431 SMART ARRAY CONTROLLER
1 CPQ 20/40GB DDS4 INT DAT DRIVE
1 COMPUTONE RAS 16 PROT INTELLIS
10 SONY DDS4 20/40G DAT TAPE 150M
5 MULTITECH 56K EXT FAX MODEM
6 COMPUTONE RJ45-DB25MODEM GOLD
1 MULTITECH 33.6 EXT FAX MODEM
2 DB25M-DB9F SERIAL MODEM CABLE
1 MAS90 GENERAL LEDGER
1 MAS90 E/U SUBSCRIPTION PLAN
1 MAS90 BANK RECONCILIATION
1 FRX 1 USER
1 MAS 200 SYS SETUP
1 MAS90 C/S VISUAL INTEGRATOR
1 MAS90 LIBRARY MASTER LICENSE
1 MAS90 CUSTOM OFFICE
1 MAS90 CS ADD'L 5 USER LICENSE
1 MAS90 ACCOUNTS PAYABLE
26 INFORMIX IDS 1 USER
26 INFORMIX ASSURANCE F/IDS
26 INFORMIX D4GL RT 1 USER
26 INFORMIX ASSUANCE F/D4GL
1 INFORMIX SQL DEV1U
1 INFORMIX SQL ASSURANCE F/DEV1U
1 RED HAT LINUX 6.0 FOR INTEL
2 BACKUP EDGE FOR LINUX/SCO UNIX
1 VSI FAX GOLD FOR LINUX
1 ZIP/SALES TAX DB MONTHLY UPDATE
1 APPOPOS CORPORATE LICENSE
1 APPOPOS ALLOCATION MODULE
1 APROPOS TRANSFERS PLUS
1 APROPOS OPEN TO BUY MODULE
1 APROPOS ▇▇▇ ▇▇▇▇▇ ▇▇ TRAINING
1 APROPOS METACUBE CB TRAINING
1 APROPOS LIBRA LOSS PREVENTION
3 CUSTOM CONFIGURATION
CORPORATE LEASING RESOLUTION
STATE OF MINNESOTA
COUNTY OF HENNEPIN
I, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ do hereby certify that I am the duly elected
and qualified Secretary of The White House, Inc., a
Maryland corporation;
that the following is a true and correct copy of resolutions duly adopted by
the Board of Directors of said Corporation at a meeting of said Board of
Directors convened and held in accordance with the By-Laws of said
Corporation on the 23RD day of MAY, 2002, and that said resolutions are now
in full force and effect:
"RESOLVED, that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as VP Finance & Administration,
CFO of this Corporation be, and he hereby is, authorized and directed to
negotiate, execute and deliver on behalf of this Corporation a lease
agreement with CARLTON FINANCIAL CORPORATION whereby this Corporation will
lease
Various Equipment
on terms and conditions which shall be determined by said officers to be
advisable and in the best interest of this Corporation, and the execution
of such lease agreement by said officers shall be conclusive evidence of
their approval thereof.
Said above-mentioned parties are further authorized and empowered to
deliver and pledge as collateral security for the payment of any such
leases, such assets of the Corporation as may be required and agreed upon
between the above-referred to officers and Carlton Financial Corporation as
Carlton Financial Corporation may require.
BE IT FURTHER RESOLVED, that the Secretary be and he hereby is
authorized to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Financial Corporation a certified copy of
these resolutions."
IN WITNESS WHEREOF, I have affixed my name as Secretary of said Corporation
and have caused the Corporate Seal of said Corporation to be hereunto affixed
this 12TH day JULY, 2002.
Affix Corporate Seal Here
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
(Secretary of Corporation)
to be attested by someone other than
signer on documents
DATE: 7-10-02
LEASE NO. _________
FROM: The White House, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TO: Insurance Carrier's Name: BROKER: ▇▇▇▇▇▇▇▇▇▇ INSURANCE ASSOCIATES
Insurance Contact with Phone #: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Fax #: ▇▇▇-▇▇▇-▇▇▇▇
Policy Number: ______________________________________________
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
To Whom It May Concern:
We have entered into a lease agreement with Carlton Financial Corporation
for the equipment shown below. This equipment is located at:
Same as above
This is a net lease and we are responsible for the insurance cost. Please
see that we have immediate coverage and notify Carlton Financial Corporation at
once. Kindly send a copy of the insurance policy to Carlton Financial
Corporation. The Lease requires Property Damage Coverage and Loss Payee Clause.
Liability Coverage and Additional Insured Clause with endorsements in their
favor attached. PLEASE LIST CARLTON FINANCIAL CORPORATION AND/OR ITS ASSIGNS AS
CERTIFICATE HOLDER.
YOUR IMMEDIATE ATTENTION IS REQUESTED.
EQUIPMENT TO BE INSURED: COST: $362,811.65
See Attached Schedule A of Equipment
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Mail to: Carlton Financial Corporation and/or its assigns
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ACKNOWLEDGEMENT AND AGREEMENT
THE WHITE HOUSE, INC., ("Lessee"), a
Maryland corporation, hereby
acknowledges notice of the Assignment of Schedule No. 1 to the
Master Lease
Agreement (as may be amended from time to time, the "Lease") dated __________,
__________, between CARLTON FINANCIAL CORPORATION, as lessor and Lessee as
lessee to Security State Savings (the "Bank"), and to induce the Bank to accept
such Assignment, agrees as follows:
1. Lessee acknowledges that CARLTON FINANCIAL CORPORATION ("Lessor") has
assigned to the Bank beneficial ownership of the Lease, a true, correct and
complete copy of which is attached hereto, but that it has not assigned and the
Bank has not assumed any of the obligations of the Lessor under the Lease.
Accordingly, Lessee will continue to look to Lessor rather than the Bank for the
performance of the obligations of Lessor under the Lease.
2. Lessee agrees to pay all remaining rentals provided for in the Lease
to the Lessor, without offset or reduction of any kind, for the benefit of and
remittance to the Bank. The Bank may from time to time instruct Lessee to make
payments under the Lease directly to the Bank or another party, and Lessee
agrees to make such payments as so directed by the Bank.
3. Lessee agrees that it shall not terminate the Lease (except as
provided in the Lease) and shall not amend the Lease without the prior written
consent of the Bank.
4. Lessee agrees to the Assignment of the Lease to the Bank by Lessor
notwithstanding any prohibition in the lease.
5. Lessee understands that the Bank makes no express or implied
warranties or representations as to any matter whatsoever, including, without
limitation, the condition of the Equipment (as defined in the Lease), its
marketability, or its fitness for any particular purpose. All of the Equipment
has been delivered to Lessee, and Lessee has found the equipment to be
satisfactory and has accepted it for all purposes of the Lease.
6. Lessee acknowledges that 34 rentals of $11,620.85 (plus applicable
taxes, if any) remain in the term of the Lease, and that the first rental is due
on September 1, 2002, and the final rental under the Lease will be due on June
1, 2005.
IN WITNESS WHEREOF, Lessee has caused this Acknowledgement and Agreement to
be executed by its duly authorized officer as of the date set forth below.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Its: VP, CFO
---------------------------------------
Date: 7-11-02
--------------------------------------