EQUIPMENT LEASE AGREEMENT
Equipment Lease Agreement, effective as of the 16th day of July, 1997, by
and between Deluxe Financial Services, Inc., a Minnesota corporation ("Lessor"),
and Northstar Computer Forms, Inc., a Minnesota corporation ("Lessee").
WHEREAS, Lessee and Deluxe Corporation, a Minnesota corporation and the
parent corporation of Lessor ("Deluxe"), are parties to that certain Agreement
of Purchase and Sale of Assets, effective as of July 21, 1996 (the "Asset
Purchase Agreement") pursuant to which Lessee purchased substantially all of the
assets of Deluxe's Financial Forms Division;
WHEREAS, pursuant to Section 10.4 of the Asset Purchase Agreement, Lessee
leased certain "DCOP Presses" from Deluxe for a term expiring as of the
effective date of this Agreement;
WHEREAS, ownership of the DCOP Presses has been transferred by Deluxe to
Lessor;
WHEREAS, Lessee wishes to lease the DCOP Presses from Lessor for the term
and subject to the conditions of this Agreement and Lessor is willing to lease
the DCOP presses to Lessee in accordance with this Agreement; and
WHEREAS, capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the respective covenants and
commitments of Lessor and Lessee that are hereinafter set forth and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Lessor and Lessee hereby agree as follows:
1. LEASE. Lessor hereby leases to Lessee, and Lessee hereby leases and
hires from Lessor the (i) five dual stream DCOP Presses, (ii) one PCD DCOP Press
and (iii) two spare Actuator Banks (collectively, the "Equipment") currently
located at Lessee's leased Roseville, Minnesota facility.
2. RENTAL.
2.1. As rental for the Equipment, Lessee agrees to pay Lessor the
following rental payments (the "Rental Payments"):
Monthly Rental
Item Per Press
---- ---------
Dual Stream DCOP Press $3,960
PCD DCOP PRESS $2,070
Actuator Bank 0
2.2. Rental Payments with respect to the first 15 days of this
lease shall be paid upon execution of this Agreement and with respect to
subsequent periods shall be paid in advance on or before the first day of each
month during the term of this lease at the office of Lessor, or to such other
person, firm or corporation or at such other place as Lessor may from time to
time designate in writing. In addition to the Rental Payments, Lessee shall pay
the amount of any personal property, or any other, taxes (excluding taxes
imposed on the income of the Lessor) and all maintenance, insurance and other
costs and expenses associated with the Equipment, payment thereof to be made
when due to the person or entity entitled thereto.
2.3. Should Lessee fail to pay the Monthly Rental or any sum
required to be paid to Lessor hereunder within ten (10) days after the due date
thereof, Lessee shall pay to Lessor interest on such delinquent payment from the
original due date thereof until such sum is fully paid at the lower of one
percent (1%) per month or the highest lawful contract rate allowed by the State
of Minnesota.
3. TERM OF LEASE.
3.1. Subject to Sections 3.2 and 3.3, this lease shall commence on
the Effective Date and continue for a period of 15 days and three years until
July 31, 2000.
3.2. Lessee shall have the right to terminate the lease of one or
more of the DCOP Presses upon written notice given at least 60 days prior to any
July 31 date occurring during the term of the Lease. Any such termination shall
be effective on the next succeeding July 3 1. The lease of the spare Actuator
Banks shall terminate concurrently with the last lease for a DCOP Press.
3.3. In addition to its termination rights under Section 3.2,
Lessee shall have the right to terminate the lease of the PCD DCOP Press
immediately upon written notice to Lessor in the event such press becomes
inoperative or substantially impaired due to the failure of one or more of its
components, if such failure cannot be remedied with reasonable efforts.
3.4. The Rental Payment payable for the first 15 days of the Lease
and Rental Payments payable with respect to a DCOP Press the lease of which is
being terminated under Section 3.3 shall be prorated for the month, based on the
ratio between the number of days in such month during which the lease is to be
in effect and the total number of days in such month.
4. NO WARRANTIES. THE EQUIPMENT IS LEASED ON AN "AS-IS" BASIS AND LESSOR
MAKES NO WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, AS TO ITS
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL LESSOR
OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES BY REASON OF ANY FAILURE OF THE EQUIPMENT TO OPERATE IN
ACCORDANCE WITH ITS SPECIFICATIONS OR LESSEE'S EXPECTATIONS.
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5. LOCATION AND RIGHT OF INSPECTION. The Equipment at all times shall be
located at the address of Lessee specified in this lease or, with prior written
notice to Lessor, at any other place of business of Lessee located in the United
States of America. Lessor shall at any and all times during Lessee's normal
business hours, upon reasonable notice and accompanied by a representative of
Lessee, have the right to enter into and upon the premises where the Equipment
is located for the purpose of inspecting the same or observing its use.
6. USE. The Equipment shall only be used for printing of Restricted
Products for customers of Lessee and printing of Requirements Products for
Lessor or Deluxe Corporation. Lessee shall operate the Equipment properly and
safely and shall comply with all laws, ordinances or regulations relating to the
operation of the Equipment. Lessee shall put the Equipment only to the use
described by the manufacturer.
7. REPAIRS, ALTERATIONS AND MAINTENANCE.
7.1. Except with respect to the PCD DCOP in the circumstances
described in Section 3.3, Lessee will keep and maintain the Equipment in good
working order and shall supply and install all replacement parts and accessories
required to maintain the Equipment in good working condition, which parts and
accessories shall be and become the sole property of Lessor. Lessee shall not,
without the prior written consent of Lessor, make any alterations,
modifications, additions, subtractions or improvements to the Equipment, but if
so authorized by Lessor, any such alterations, modifications, additions, or
improvements shall become the property of the Lessor and shall be deemed to be a
part of the Equipment. Lessee shall use on the Equipment only such compatible
parts as are approved by Lessor.
7.2. Lessee shall purchase from Lessor any required accessories and
replacement parts (or, with respect to non-proprietary off-the-shelf items, from
Lessor-approved suppliers, provided such items are equal in quality to those
available from Lessor) and, if purchased from Lessor, pay for such items the
prices charged by Lessor to its affiliates, plus I 00 percent, plus the cost of
shipping. Lessor makes no representation nor warranty whatsoever regarding the
availability or timeliness of delivery of any spare parts. Lessee is solely
responsible, at its own cost and expense, for promptly repairing any damage to
the Equipment, arranging for regular servicing of the Equipment, keeping
accurate records of servicing, and maintaining the Equipment in compliance with
all applicable safety and other laws, rules, codes and other regulations. At
the request of Lessee, Lessor will provide on-site maintenance of the Equipment
during Lessor's normal business hours at a cost of $120.00 per hour. Amounts
payable with respect of such maintenance shall be payable within 30 days of
Lessee's receipt of an invoice therefor.
7.3. Lessee shall, as soon as reasonably possible, implement any
updates of the Equipment requested by Lessor, but only if (a) such updates
relate to a safety concern and (b) Lessor simultaneously undertakes to implement
such updates with respect to the DCOP equipment in use in its own manufacturing
plants. Lessor will be responsible for the cost of
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any additional parts required for any such change, update or enhancement and any
other costs incurred in complying with this Section 7.3.
8. LOSS AND DAMAGE, INSURANCE; INDEMNIFICATION.
8.1. Lessee hereby assumes and shall bear the entire risk of loss,
theft, damage or destruction of or to the Equipment from any cause whatsoever
(ordinary wear and tear resulting from proper use excepted), and no loss, theft,
damage or destruction of or to the Equipment shall relieve Lessee of the
obligation to pay the Rental Payments or of any other obligation under this
lease, which shall continue in full force and effect.
8.2. Lessee, at its sole cost and expense, shall procure, maintain
and pay for insurance against the loss, theft, or damage of or to the Equipment
for the full replacement value thereof, naming Lessor as a loss payee. Lessee
shall also maintain an appropriate level of accident and other casualty and
liability insurance and shall name Lessor as an additional insured thereon, as
its interest may appear. Upon request by Lessor, Lessee shall provide Lessor a
Certificate of Insurance identifying Lessor as a loss payee.
8.3. If any event or accident shall occur with respect to the
Equipment which is a risk covered by Lessee's insurance, Lessee shall
immediately notify Lessor thereof, shall not compromise any such claim without
the consent of Lessor, shall allow Lessor to take over the conduct of any
related negotiations, and shall hold all sums recovered, together with any
monies received by Lessee under its policy of insurance, in trust for Lessor.
8.4. Lessee will indemnify and hold Lessor and its officers,
directors employees and agents harmless from and against any and all damages,
claims, losses, liabilities or obligations arising out of or related to any
claim that the Equipment was operated or maintained in an unlawful or unsafe
manner.
9. TRAINING. At the request of Lessee, Lessor will provide on-site
training during Lessor's normal business hours on the operation and maintenance
of the Equipment at a cost of $120.00 per hour. Amounts payable with respect of
such training shall be payable within 30 days of Lessee's receipt of an invoice
therefor.
10. CONFIDENTIALITY.
10.1. Lessee agrees that all information previously or hereinafter
disclosed to Lessee regarding the specifications, features, functionality,
performance and means of operation of the Equipment (including without
limitation the related computer controlled check numbering devices and any user
or technical manuals) constitutes valuable proprietary information of Lessor
("Confidential Information").
10.2. Lessee agrees that during the term of this Agreement and for a
period of five years thereafter, it shall (i) not use the Confidential
Information for any purpose (the "Authorized Purpose") other than for the
maintenance and operation of the Equipment in
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accordance herewith, (ii) not disclose the Confidential Information to any
third parties and (iii) limit disclosure of the Confidential Information to
such of its employees and/or representatives as have a direct "need to know"
in connection with the Authorized Purpose. The provisions of this Section 10
shall survive any termination or expiration of this Agreement.
10.3. Information shall not be deemed "Confidential Information"
insofar as and to the extent that it (i) is or becomes part of the public domain
without violation of this Agreement, (ii) is lawfully obtained by Lessee from a
third party without restriction on its further disclosure or (iii) is developed
by Lessee independent of any disclosure by Lessor.
11. DEFAULT.
11.1. If (i) Lessee shall fail to make a Rental Payment when due, (ii)
Lessee shall fail to make any other payment or perform or observe any other
covenant, condition or agreement to be performed or observed by it hereunder and
such failure shall continue for a period of ten (10) days after written notice
thereof by Lessor, provided, however, if the nature of such default is such that
it cannot be cured within the aforesaid ten (10) days, Lessee shall be permitted
such longer period of time as may be reasonably necessary to cure such default
on the condition that Lessee diligently pursues a course of action to effectuate
such cure, (iii) Lessee shall become insolvent or bankrupt or make an assignment
for the benefit of creditors or consent to the appointment of a trustee or
receiver, (iv) a trustee or a receiver shall be appointed for Lessee or for a
substantial part of its property without its consent and shall not be dismissed
for a period of sixty (60) days, (v) bankruptcy, reorganization or insolvency
proceedings shall be instituted by or against Lessee and, if instituted against
Lessee, shall not be dismissed for a period of (60) days, (vi) Lessee's business
is dissolved or Lessee terminates its existence or is discontinued or (vii)
Lessee attempts to remove, sell, transfer, encumber, part with possession or
sublet the Equipment or any item thereof without Lessor's prior written consent,
then, upon the occurrence of any such event (hereinafter called "Event of
Default"), Lessor may, at its option, declare this lease to be in default and
may do any one or more of the following with respect to any or all of the
Equipment, all as Lessor in its sole discretion may elect:
(a) cause Lessee, upon written demand of Lessor and at Lessee's
expense, to promptly return any or all items of the Equipment
to Lessor in accordance with all of the terms of Section 14
hereof, or Lessor, at its option, may take possession of any
or all items of the Equipment and remove the same without
liability for injuries suffered through or loss caused by
such repossession and repossession shall not constitute
termination of this lease. LESSEE WAIVES ANY AND ALL RIGHTS TO
NOTICE AND JUDICIAL HEARING WITH RESPECT TO THE REPOSSESSION
OR ATTACHMENT OF THE EQUIPMENT BY LESSOR FOLLOWING THE
OCCURRENCE OF AN EVENT OF DEFAULT HEREUNDER;
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(b) dispose of, hold, use, operate or keep idle the Equipment,
free and clear of any rights of Lessee for such action or
inaction or for any proceeds generated thereby;
(c) exercise any other right or remedy which may be available to
Lessor under the Uniform Commercial Code or any other
applicable law or proceed by appropriate court action to
enforce the terms hereof or to recover damages for the breach
hereof or to rescind this lease as to any or all of the
Equipment.
11.2. Notwithstanding any Event of Default, Lessee shall continue to
be liable for the Rental Payments (provided, however, if Lessor declares this
lease to be in default, Lessee's liability for Rental Payments shall extend only
until the next succeeding July 31) and other amounts owing under this Agreement
and for all legal fees and other costs and expenses resulting from the Event of
Default or the exercise of Lessor's remedies hereunder. No remedy granted to
Lessor is exclusive, but each shall be cumulative and in addition to any other
remedy referred to above or otherwise available to Lessor at law or in equity.
Any repossession or subsequent sale or lease by Lessor of any item of the
Equipment shall not bar an action for a deficiency as herein provided and the
bringing of any action or the entry of judgment against the Lessee shall not bar
the Lessor's right to repossess any item or all of the Equipment. No express or
implied waiver by Lessor of any Event of Default shall constitute a waiver of
any other default by Lessee. To the fullest extent permitted by applicable law,
Lessee hereby waives any rights now or hereafter conferred, by law or otherwise,
which may require Lessor to sell, lease or otherwise use any Equipment in
mitigation of Lessor's damages as set forth in this Section 11 or which may
otherwise limit or modify any of Lessor's rights or remedies under this Section
11.
12. ASSIGNMENT. Lessee shall not assign, pledge or hypothecate
this Agreement in whole or in part, nor any interest therein, nor shall Lessee
sublet or lend any item of the Equipment without the prior written consent of
Lessor.
13. OWNERSHIP. The Equipment is and shall at all times remain the
sole and exclusive property of Lessor. Lessee shall have no right, title or
interest therein or thereto, except as expressly set forth in this lease. The
Equipment shall remain personal property regardless of whether it becomes
affixed or attached to real property or permanently rests upon any real property
or any improvement thereon. Lessee agrees to execute all such agreements and
other documents, and to obtain the execution thereof in recordable form by all
parties having an interest in any real property to which any of the Equipment is
affixed, as Lessor may from time to time reasonably request in order to maintain
the identity of the Equipment as personal property of Lessor. Lessee consents
to the public recordation of all such agreements and documents.
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14. SURRENDER.
14.1. Except with respect to the PCD DCOP in the circumstances
described in Section 3.3, upon expiration of the lease for an item of Equipment,
Lessee shall return such item (together with any related technical manuals) to
Lessor in good condition, repair and working order, ordinary wear and tear
resulting from proper use thereof excepted, in the following manner (i) by
delivering the item, at Lessee's sole cost and expense, to any location selected
by Lessor within ▇▇▇▇▇▇ County, Minnesota or (ii) by loading the item on board
any carrier designated by Lessor and shipping the same, freight paid, F.O.B.
Lessor, to the location in said County by Lessor.
15. NOTICES. All notices required or permitted under this Agreement shall
be sufficient if delivered personally, by telecopy or mailed to the party at the
address set forth herein, or at such other address as either party may designate
in writing from time to time. Any such notice shall be effective upon receipt,
if delivered by messenger or by confirmed telecopy or two days after mailing if
delivered by United States mail, duly addressed, postage prepaid.
16. MISCELLANEOUS. Any provision of this Agreement which may be
determined by competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. No term or provision of this Agreement may be changed,
waived, discharged, or terminated orally, but only by an instrument in writing
signed by the party against which the enforcement of the charge, waiver,
discharge or termination is sought. The captions in this Agreement are for
convenience only and shall not define or limit any of the provisions hereof.
This Agreement shall in all respects be governed by, and construed in accordance
with, the laws of the State of Minnesota, including all matters of construction,
validity and performance. This Agreement and the Asset Purchase Agreement
constitute the entire, final, complete and exclusive agreement between the
parties with respect to the lease of the Equipment and supersede and replace any
previous or inconsistent agreements or representations, written or oral, with
regard to such subject matter. Time is of the essence hereunder.
During the term of this Lease, Lessor agrees, for itself and its
affiliates, not to lease DCOP Presses to any third party printer of internal
bank forms which competes with Lessee in the sale of such products.
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IN WITNESS WHEREOF, Lessor and Lessee have executed this Agreement
effective as of the date set forth above.
NORTHSTAR COMPUTER FORMS, INC. DELUXE FINANCIAL SERVICES, INC.
-------------------------------- --------------------------------
By: By:
----------------------------- -----------------------------
Its: Its:
-------------------------- --------------------------
Address: Northstar Computer Forms, Inc. Address: Deluxe Financial
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, No. Services, Inc.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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