1
Exhibit 10.5
BANK OF AMERICA
LEASE INTENDED AS SECURITY
LEASE NUMBER
BANC OF AMERICA LEASING & CAPITAL, LLC 00989-00300
--------------------------------------------------------------------------------
THIS LEASE INTENDED AS SECURITY (this "Agreement") dated as of 9-1, 2000 between
BANC OF AMERICA LEASING & CAPITAL, LLC ("Lessor"), a Delaware limited liability
company having its chief executive office at 000 Xxxxxxxxxx Xx., 0xx Xxxxx, Xxx
Xxxxxxxxx, XX 00000, and CALAVO GROWERS OF CALIFORNIA ("Lessee"), a California
corporation, having its chief executive office at 0000 Xxx Xxxx Xxxxxx, Xxxxx
Xxx, XX 00000.
1. LEASE AGREEMENT; SCHEDULES. Subject to the terms and conditions hereof,
Lessor shall lease to Lessee, and Lessee shall lease from Lessor, the items of
personal property (collectively with all attachments and accessories thereto,
the "Units") described in one or more schedules (each, a "Schedule"; each
Schedule, together with this Agreement as it pertains thereto, a "Lease") which
incorporate by reference this Agreement. Each Schedule shall constitute a
separate and independent lease and contractual obligation of Lessee. Upon
delivery and acceptance by Lessee of each Unit, Lessee shall execute and deliver
the Schedule relating to the Unit, with all information required on the Schedule
fully completed, identifying and accepting the Unit.
2. TERM OF LEASE; RENTALS. The lease term with respect to any Unit shall consist
of an "Interim Term" (if any) and a "Base Term" as specified in the Schedule
covering such Unit. Lessee shall pay rent for the Interim Term ("Interim Rent")
and for the Base Term ("Base Rent") as specified in the applicable Schedule.
3. NET LEASE; DISCLAIMER OF WARRANTIES. EACH LEASE IS A NET LEASE. ALL COSTS,
EXPENSES AND OTHER LIABILITIES ASSOCIATED WITH THE UNITS SHALL BE BORNE SOLELY
BY LESSEE. LESSEE'S OBLIGATION TO PAY RENT AND ALL OTHER OBLIGATIONS UNDER ANY
LEASE ARE ABSOLUTE AND UNCONDITIONAL, AND NOT SUBJECT TO ANY ABATEMENT,
DEFERMENT, REDUCTION, SETOFF, DEFENSE, COUNTERCLAIM OR RECOUPMENT FOR ANY REASON
WHATSOEVER. NO LEASE SHALL TERMINATE, EXCEPT AS EXPRESSLY PROVIDED HEREIN, NOR
SHALL THE OBLIGATIONS OF LESSEE BE AFFECTED, BY REASON OF ANY DEFECT OR DAMAGE
TO, OR ANY DESTRUCTION, LOSS, THEFT, FORFEITURE, GOVERNMENTAL REQUISITION OR
OBSOLESCENCE OF ANY UNIT, REGARDLESS OF CAUSE. LESSEE ACKNOWLEDGES THAT LESSOR
IS NOT A MERCHANT OR MANUFACTURER, OR AGENT OF ANY SUCH PERSON, OR ENGAGED IN
THE SALE OR DISTRIBUTION OF THE UNITS, AND HAS NOT MADE, AND DOES NOT HEREBY
MAKE, ANY REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY, PERFORMANCE,
CONDITION, FITNESS OR SUITABILITY FOR LESSEE'S PURPOSES OF ANY OF THE UNITS, OR
MAKE ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE UNITS. LESSOR
SHALL NOT BE LIABLE TO THE LESSEE FOR, NOR SHALL LESSEE'S OBLIGATIONS UNDER ANY
LEASE BE AFFECTED BY, ANY LOSS, CLAIM, LIABILITY, COST, DAMAGE OR EXPENSE OF ANY
KIND CAUSED, OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY UNIT, OR BY
ANY INADEQUACY OF THE UNIT FOR ANY PURPOSE, OR BY ANY DEFECT IN, THE USE OR
MAINTENANCE OF, ANY REPAIRS, SERVICING OR ADJUSTMENTS OF, OR ANY INTERRUPTION OR
LOSS OF SERVICE OR USE OF, ANY UNIT, OR ANY LOSS OF BUSINESS, PROFITS,
CONSEQUENTIAL OR OTHER DAMAGE OF ANY NATURE. Lessor hereby transfers and assigns
to Lessee, to the extent allowable by law, for and during the lease term of each
Schedule, a non-exclusive interest in the Unit warranties, if any, of the
manufacturer, and hereby authorizes Lessee, when there exists no Event of
Default, to enforce such warranties and to obtain at its own expense the
customary services furnished by the manufacturer in connection with the Units.
4. USE, MAINTENANCE, LOCATION. Lessee shall use, operate, protect and maintain
the Units in good operating order, repair, condition and appearance, and in
compliance with all applicable insurance policies, laws, ordinances, rules,
regulations and manufacturer's recommended procedures, and shall maintain
comprehensive records regarding the Units. The Units shall be used solely for
commercial or business purposes, and not for any consumer, personal, home, or
family purpose, and shall not be abandoned. Lessee shall not, through
modifications, alterations or otherwise, impair the value or originally intended
function of any Unit without Lessor's prior consent. Any replacement or
substitution of parts, improvements, upgrades, or additions to the Units made by
Lessee shall become subject to the Lease and title shall vest in Lessor, except
that if no Event of Default exists, Lessee may at its expense remove
improvements or additions provided by Lessee that can be readily removed without
impairing the value and function of the Unit. If requested by Lessor, Lessee
shall cause each Unit to be plainly marked to disclose Lessor's ownership, as
specified by Lessor. Lessee shall not change the location or base of any Unit
specified in its Schedule without Lessor's prior consent. Lessee shall notify
Lessor at least 30 days before changing the location of its chief executive
office.
5. LOSS AND DAMAGE. Lessee assumes all risk of, and shall promptly notify Lessor
of any occurrence of, any damage to or loss, theft, confiscation or destruction
of (together, "Casualty") each Unit from any cause whatsoever from the date the
Unit is shipped by the vendor or manufacturer or otherwise made available to
Lessee ("Shipment Date"). If any Unit suffers a Casualty from the Shipment Date
until the Acceptance Date, Lessee shall pay Lessor any sum required to be paid
under any Progress Payment Agreement entered into between Lessor and Lessee in
relation to such Unit. If any Unit suffers a Casualty on or after its Acceptance
Date, Lessee shall, if the Casualty is damage that is reparable in the judgment
of Lessor, at its own expense promptly place the same in good repair, condition
or working order, and if the Unit is lost, stolen, confiscated, destroyed or
damaged beyond repair ("Total Loss"), on the rent payment date following such
occurrence (or, if none, within 30 days) pay Lessor the Balance Due therefor,
together with all other amounts owing under the Lease with respect to the Unit.
The "Balance Due" for each Unit is, after the Acceptance Date and before the
Base Date for such Unit, Lessor's Cost in respect of such Unit, together with
all Interim Rent accrued to the date of payment and all other amounts owing
under the Lease, and thereafter, the sum of (i) the present value, as of such
payment date, of the entire unpaid balance of all Base Rent for such Unit that
would otherwise have accrued under the Lease from such payment date to the end
of its scheduled Base Term and (ii) the present value, as of such payment date,
of the Purchase Amount therefor as specified in the applicable Schedule, in each
case, discounted at the implicit
Page 1 of 5
2
rate for the Lease reasonably determined by Lessor. Upon such payment, (a) the
Lease of such Unit shall terminate and Lessee thereupon shall become entitled to
possession of such Unit and (b) Lessee shall become entitled to proceeds of
insurance maintained by Lessee. If less than all Units in the applicable
Schedule suffer Total Loss, the remaining Base Rent under the Schedule shall be
reduced as reasonably calculated by Lessor and notified to Lessee.
6. INSURANCE. Lessee, at its own expense, shall keep each Unit insured against
all risks for the value of the Unit and in no event for less than the Balance
Due for the Unit, and shall maintain public liability insurance against such
risks and for such amounts as Lessor may require. All such insurance shall be in
such form and with such companies as Lessor shall approve, shall specify Lessor
and Lessee as insureds and shall provide that such insurance may not be canceled
as to Lessor or altered in any way that would affect the interest of Lessor
without at least 30 days' prior written notice to Lessor (10 days' in the case
of nonpayment of premium). All insurance shall be primary, without right of
contribution from any other insurance carried by Lessor, shall contain waiver of
subrogation and "breach of warranty" provisions satisfactory to Lessor, shall
provide that all amounts payable by reason of loss or damage to the Units shall
be payable solely to Lessor, unless Lessor otherwise agrees, and shall contain
such other endorsements as Lessor may reasonably require. Lessee shall provide
Lessor with evidence satisfactory to Lessor of the required insurance upon the
execution of any Schedule and promptly upon any renewal of any required policy.
7. INDEMNITIES. (a) Lessee shall indemnify Lessor, its successors and assigns
and their respective officers, directors, employees, agents and affiliates
("Indemnified Persons") against all claims, liabilities, losses and expenses
whatsoever (except those directly and primarily caused by the Indemnified
Person's gross negligence or willful misconduct), including reasonable
attorneys' fees and allocated costs of internal counsel (together, "Attorney
Costs"), in any way relating to or arising out of this Agreement, the Units or
the Leases at any time, or the ordering, acquisition, rejection, installation,
possession, maintenance, use, ownership, condition, destruction, return, or
disposition of the Units, including such matters based in negligence and strict
liability in tort, environmental liability, statutory liability, or
infringement.
(b) Lessee shall pay or reimburse Lessor and its successors and assigns on
demand for, and indemnify and hold harmless Lessor from, all taxes, assessments,
fees and other governmental charges paid or required to be paid by Lessor or
Lessee in any way arising out of or related to the Units or the Leases, before,
during or after the lease term, including foreign, Federal, state, county and
municipal fees, taxes and assessments, and property, value-added, sales, use,
gross receipts, excise, stamp and documentary taxes, and all related penalties,
fines, additions to tax, and interest charges (together, "Impositions"),
excluding only Federal and state taxes based on Lessor's net income, unless such
taxes are in lieu of any Imposition Lessee would otherwise be required to pay
hereunder. Lessee shall timely pay any Imposition for which Lessee is primarily
responsible under law and any other Imposition not payable or not paid by
Lessor, but Lessee shall have no obligation to pay any such Imposition that
Lessee is contesting in good faith and by appropriate legal proceedings, the
nonpayment of which does not, in the opinion of Lessor, result in a material
risk of adverse effect on the title, property, use, disposition or other rights
of Lessor with respect to the Units. Lessee shall furnish on Lessor's request
proof of payment of any Imposition paid by Lessee.
8. RETURN OF UNITS. Upon any termination or expiration of the lease term with
respect to any Unit, subject to any Lessee purchase of the Unit pursuant to the
applicable Schedule, Lessee shall, at its own expense, prepare and adequately
protect the Unit for shipment and either surrender it to Lessor in place or, if
instructed by Lessor, ship the Unit to Lessor, freight and insurance pre-paid,
at a place reasonably designated by Lessor, in the condition required under
Section 4 hereof and under the applicable Schedule, and able to be put into
immediate service and to perform at manufacturer's rated levels (if any),
together with all related manuals, documents and records. If Lessee does not so
surrender or return a Unit to Lessor, in addition to all other rights and
remedies available, at Lessor's election, such Unit shall continue to be subject
to all the terms and conditions of the Lease, with rent and other charges
continuing to accrue and be payable under the Lease with respect to such Unit
until it is so surrendered or returned to Lessor, except that Base Rent shall
accrue, payable on demand, at the rate of 150% of the rate applicable in the
last period for which Base Rent was payable.
9. EARLY TERMINATION. (a) Upon any rent payment date relating to a Lease, and no
less than 30 days' irrevocable notice to Lessor, from and after the expiry of
one-half of the applicable Base Term, provided no Event of Default exists,
Lessee shall have the option to terminate the Lease with respect to all and not
less than all Units covered thereby by purchasing the Units "as is and where is"
without warranties or representations of any kind, express or implied, for a
purchase price equal to the Balance Due plus all other amounts owing with
respect to the Units, plus early termination charges in the amount set forth in
paragraph (b) below. The purchase price of the Units and any early termination
charge shall be paid in immediately available funds at the time of exercising
such option.
(b) Upon any termination of the Lease before the scheduled expiration of the
Base Term, due to the exercise of any early termination option, a Casualty or a
default, in addition to all other amounts to be paid by Lessee, Lessee shall pay
Lessor an amount (the "Make-Whole"), equal to the greater of (A) the amount (not
less than zero) that must be added thereto in order that the Make-Whole plus the
Balance Due on the early termination date is equal to the sum of the present
values (using discount rates per annum for each obligation equal to the Formula
Yield (as defined below) as of the early termination date of (x) all remaining
installments of Base Rent and (y) the Purchase Amount (collectively, the
"Discounted Payments"), or (B) an amount equal to 2% times the Balance Due.
"Formula Yield" for each obligation shall mean, as of any date of determination,
the rate, as published by Telerate Systems, Inc. or other source, for United
States Government Treasury obligations of maturities corresponding to the
weighted average life, rounded to the second decimal place, of the Discounted
Payments. If no maturity exactly corresponds to such rounded weighted average
life for such obligation, yields of the two most closely corresponding published
maturities shall be calculated pursuant to the foregoing sentence and the
Formula Yield shall be interpolated from such yields on a straight-line basis.
10. LESSEE REPRESENTATIONS AND AGREEMENTS. Lessee represents, warrants and
agrees as follows:
(a) Lessee has duly authorized the execution, delivery and performance of this
Agreement, each Schedule, and all other documents contemplated hereby, which
are, or upon signing, will be, binding on Lessee and do not contravene any other
Page 2 of 5
3
instrument or agreement to which Lessee is party.
(b) Lessor has and shall at all times continue to have a perfected security
interest in the Units and the other Collateral, subject to no prior liens or
security interests, to secure the obligations specified in Section 17(g) of this
Agreement.
11. PERSONAL PROPERTY. The Units shall remain personal property at all times,
notwithstanding the manner in which they may be attached or affixed to realty,
and title shall at all times continue in Lessor. Lessee shall obtain and record
such instruments and take such steps as may be necessary (a) to prevent any
person from acquiring any right or lien in or on any Unit, whether by reason of
such Unit being deemed to be attached to real or other property, or otherwise,
and (b) to ensure Lessor's right of access to and removal of the Unit, in
accordance with the Lease.
12. DEFAULT AND REMEDIES. (a) Each of the following is an "Event of Default"
hereunder and under any and all Leases then in effect: (1) Lessee fails to pay
within five days of the day when due any installment of rent or other sum owing
by Lessee under any Lease; (2) Lessee fails to maintain insurance in respect of
any Unit as required, or sells, leases, subleases, assigns, conveys, encumbers
or suffers to exist any lien or charge against, any Unit without Lessor's prior
consent, or any Unit is subjected to levy, seizure or attachment; (3) Lessee
fails to perform and comply with any other covenant or obligation under any
Lease, or any progress payment, assignment, security or other agreement related
to any Lease or Unit (together, "Related Agreements") and, if curable, such
failure continues for 30 days after written notice thereof by Lessor to Lessee,
(4) any representation, warranty or other written statement made to Lessor in
connection with this Agreement, any Lease, Related Agreement, or any guaranty,
by Lessee or any person providing such guaranty ("Guarantor"), including
financial statements, proves to have been incorrect in any material respect when
made; (5) Lessee (x) enters into any merger or consolidation with, or sells or
transfers all, substantially all or any substantial portion of its assets to, or
enters into any partnership or joint venture other than in the ordinary course
of business with, any entity, (y) dissolves, liquidates or ceases or suspends
the conduct of business, or ceases to maintain its existence, or (z) enters into
or suffers any transaction or series of transactions as a result of which Lessee
is directly or indirectly controlled by persons or entities not affiliates of
Lessee as of the date of this Agreement; (6) Lessee undertakes any general
assignment for the benefit of creditors or commences any voluntary case or
proceeding for relief under the Bankruptcy Code, or any other law for the relief
of debtors, or takes any action to authorize or implement any of the foregoing;
(7) the filing of any petition or application against Lessee under any law for
the relief of debtors, including proceedings under the Bankruptcy Code or for
the subjection of property of Lessee to the control of any court, receiver or
agency for the benefit of creditors if such petition or application is consented
to by Lessee or not dismissed within 60 days from the date of filing; (8) any
payment default or other event of default occurs under any other bilateral or
multi-lateral lease, or credit, or other agreement or instrument to which Lessee
and Lessor or any affiliate of Lessor are now or hereafter party; (9) any
payment default or other event of default occurs under any other lease, or
credit, or other agreement or instrument or any combination thereof to which
Lessee is now or hereafter party and under which there is outstanding (on a
present value basis for all future rent, in the case of leases), owing or
committed an aggregate amount greater than $100,000.00; (10) the repudiation of
or breach or default under any guaranty relating to any Lease; or (11) the
occurrence of any event described in clauses (5), (6), (7), (8) or (9) of this
Section with reference to "any Guarantor" in lieu of "Lessee", or any Guarantor
dies.
(b) Upon the occurrence of an Event of Default, and in addition to all other
rights and remedies provided herein or under law, all of which rights and
remedies are cumulative and not exclusive, Lessor may: (i) proceed by
appropriate court action or actions, either at law or in equity, to enforce
performance by Lessee of the applicable covenants under any or all Leases, and
(ii) terminate any and all Leases, whereupon (A) Lessee's right to retain
possession and use of the Units shall cease, (B) the aggregate Balance Due,
together with all other amounts owing under the Leases shall be immediately due
and payable, and (C) Lessor may pursue any and all remedies available to it
under applicable law, including as a secured party under the Uniform Commercial
Code. Lessor may also recover from Lessee all Attorney Costs in the amount of
15% of all amounts due on or after the time of such breach or default (but not
to exceed the amount actually incurred).
(c) The exercise or partial exercise of, or failure to exercise, any remedy
shall not restrict Lessor from further exercise of that remedy or any other
remedy otherwise available. To the extent permitted by applicable law, Lessee
waives any right to require Lessor to sell, release or otherwise use or dispose
of any Units or otherwise mitigate Lessor's damages, or that may otherwise limit
or modify any of Lessor's rights or remedies.
13. ASSIGNMENT, ETC. (a) Lessor (and any subsequent assignee) may assign or
transfer any or all of Lessor's interest in any Lease, Unit or rentals therefrom
without notice to Lessee. Lessee agrees that the rights of any assignee shall
not be affected by any breach or default of Lessor or of any prior assignee.
Lessee further agrees that (i) no such assignee shall be required to assume any
of the obligations of Lessor under any Lease except the obligation in respect of
the application of any insurance monies received by such assignee, as provided
above, and the obligation of non-interference as provided below, and (ii) any
assignee expressly assuming the obligations of Lessor shall thereupon be
responsible for Lessor's duties under the applicable Lease accruing after any
such assignment and Lessor shall be released from such duties. Lessor may
disclose to any potential or actual assignee or transferee any information
regarding Lessee, any Guarantor and their affiliates.
(b) LESSEE SHALL NOT ASSIGN, PLEDGE, HYPOTHECATE OR IN ANY WAY DISPOSE OF ALL OR
ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER ANY LEASE, OR ENTER INTO ANY
SUBLEASE OF ANY UNIT, WITHOUT LESSOR'S PRIOR CONSENT.
14. FINANCIAL AND OTHER DATA. (a) During the term of any Lease, Lessee shall (i)
maintain books and records in accordance with generally accepted accounting
principles ("GAAP") and prudent business practice, (ii) promptly and in no event
later than 120 days after each fiscal year end furnish Lessor annual audited
financial statements of Lessee and of any Guarantor, prepared in accordance with
GAAP consistently applied, together with an unqualified opinion of an
independent auditor, and (iii) at Lessor's request, furnish Lessor all other
financial information and reports reasonably requested by Lessor at any time,
including quarterly or other interim financial statements of Lessee and of any
Guarantor. Lessee shall furnish such other information as Lessor may reasonably
request at any time concerning Lessee, Guarantor and their respective affairs,
or any Unit. Lessee shall
Page 3 of 5
4
promptly notify Lessor of any Event of Default or event or circumstance which,
with notice, lapse of time or both, would be an Event of Default.
(b) Lessee represents and warrants that all information furnished and to be
furnished by Lessee or any Guarantor to Lessor is accurate, and that all
financial statements Lessee or any Guarantor has furnished and hereafter may
furnish to Lessor reasonably reflect and will reflect, as of their respective
dates, results of the operations and the financial condition of Lessee, such
Guarantor or other entity they purport to cover.
(c) Credit and other information regarding Lessee, any Guarantor or their
affiliates may be shared by Lessor with its affiliates and agents.
15. INSPECTION; NON-INTERFERENCE. (a) Lessor, its agents and employees shall
have the right to enter any property where any Unit is located and inspect any
Unit, together with its related books and records, at any reasonable time. Such
right shall not impose any obligation on Lessor.
(b) So long as no Event of Default exists, Lessor shall not, and each direct or
indirect assignee or transferee of Lessor agrees that it shall not, interfere
with the rights of use and enjoyment of the Units by Lessee.
16. OTHER CHARGES; APPLICATION. If Lessee fails to pay within ten days of the
date due any amount of regularly scheduled Interim Rent or Base Rent, Lessee
shall pay a late charge equal to five percent (5%) of the amount not timely
paid. Lessee shall pay interest at the per annum rate equal to the lesser of (a)
15% or (b) the highest rate permitted by applicable law ("Default Rate") on (i)
any sum other than regularly scheduled Interim Rent and Base Rent owing under
any Lease and not paid when due, and (ii) any Balance Due not paid when due.
Payments received under any Lease will be applied, first, to interest, fees and
other amounts owing, other than Interim Rent or Base Rent, then to Interim Rent
or Base Rent, in order of Acceptance Date.
17. MISCELLANEOUS. (a) Lessee's indemnity and reimbursement obligations,
including under Section 7, shall survive the termination or cancellation of any
Lease or this Agreement.
(b) At Lessor's request, Lessee shall execute, deliver, file, and record such
financing statements and other documents, agreements and instruments as Lessor
shall deem necessary or advisable to protect Lessor's interest in the Units and
to effectuate the purposes of any Lease and the Related Agreements. Lessee
hereby irrevocably appoints Lessor as Lessee's agent and attorney-in-fact for
Lessee, coupled with an interest, (i) to execute, deliver, file, or record any
such item, and to take such action for Lessee and in Lessee's name, place and
stead, and (ii) to enforce claims relating to the Units against insurers,
vendors and other persons, and to make, adjust, compromise, settle, and receive
payment under such claims; without any obligation to do so.
(c) Time is of the essence.
(d) The invalidity of any portion of this Agreement, any Schedule or Related
Agreement shall not affect the force and effect of the remaining valid portions
thereof. The term "including" is not limiting. The term "affiliate" includes any
entity controlling, controlled by or under common control with the referent
entity; "control" includes the ownership of 25% or more of the voting stock of
any entity. The term "guaranty" includes any guaranty, surety instrument,
indemnity, "keep-well" agreement, or other instrument or arrangement providing
third party credit support to Lessor relating to any Lease or Unit.
(e) This Agreement, the Schedules, the approval letter by Lessor dated N/A,
19__ in relation hereto and any replacement or successor letter thereto
(together, the "Approval Letter") and the Related Agreements, constitute the
entire agreement between the parties with respect to the leasing of the Units.
Any amendment to such documents must be made in writing and signed by the
parties hereto or thereto. Such documents may be executed in one or more
counterparts. Where multiple counterpart originals of any Schedule exist, only
the counterpart marked "Lessor's Copy" shall be deemed chattel paper and
evidence a monetary obligation of Lessee.
(f) All demands, notices, requests, consents, waivers and other communications
under the Agreement, any Lease, the Approval Letter, or any Related Agreement
shall be in writing and shall be deemed to have been duly given when personally
delivered or three business days after being deposited in the mail, first class
postage prepaid, or the business day after delivery to an express carrier,
charges prepaid, or when sent by facsimile transmission (with electronic
confirmation of receipt), addressed to each party at the address or fax number
set forth below the signature of such party on the signature page, or at such
other address or fax number as may hereafter be furnished in writing by such
party to the other.
(g) (i) To secure the payment and performance of its obligations under the Lease
relating to such Unit and the repayment of any advances, with interest and fees,
made by Lessor on account of the Unit, and (ii) as a separate grant of security,
to secure the payment and performance of its obligations under all other Leases
and all other lease, loan or other obligations owing by Lessee to Lessor, in
each case, now existing or hereafter arising, Lessee hereby grants to Lessor a
security interest in all Lessee's right, title and interest in and to each Unit,
together with (A) all attachments, accessories and accessions to, and
substitutions and replacements for, the Unit, (B) all rights to chattel paper
arising from the Unit, (C) all insurance, warranty and other claims against
third parties with respect to the Unit (including claims for rent upon any lease
of the Unit), (D) all software and other intellectual property rights used or
useful in connection therewith, (E) all proceeds of any of the foregoing,
including insurance proceeds, and (F) all books and records pertaining to any of
the foregoing, in each case, now existing or hereafter arising and including,
with respect to clause (ii) of this subsection, Units as to which Lessee has
satisfied its end of term purchase obligation under the applicable Schedule
(together, the "Collateral").
(h) To the extent specified in any Approval Letter, Lessee shall reimburse
Lessor upon demand for costs and expenses incurred by Lessor in connection with
the execution and delivery of this Agreement and the other documents
contemplated hereby.
Page 4 of 5
5
Lessee shall reimburse Lessor on demand for all costs and expenses, including
Attorney Costs, incurred in connection with any amendment of any Lease or
related document requested by Lessee, or any waiver.
(i) THIS AGREEMENT, EACH SCHEDULE AND (UNLESS OTHERWISE SPECIFIED THEREIN) THE
RELATED AGREEMENTS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE INTERNAL
LAWS OF THE STATE OF GEORGIA, TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF
WHICH, AND THE FEDERAL COURTS LOCATED THEREIN, THE PARTIES HERETO SUBMIT.
(j) LESSOR AND LESSEE EACH WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER HOWEVER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH ANY LEASE ON THE UNITS.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Agreement as of the
date first above written.
BANC OF AMERICA LEASING & CAPITAL, LLC CALAVO GROWERS OF CALIFORNIA
(Lessor) (Lessee)
By: /s/ P. Xxxxxx Xxxxx III By: /s/ Xxxxx X. Xxxxx /s/ XXXXXX XXXXXXX
----------------------------------- -------------------------------------------------
Printed Name: P. Xxxxxx Xxxxx III Printed Name: Xxxxx X. Xxxxx Xxxxxx Xxxxxxx
------------------------- ---------------------------------------
Title: Vice President Title: Treasurer Vice President
-------------------------------- ----------------------------------------------
Address: 0000 Xxxxxxxxx Xxxx. Address: 2530 Red Hill
------------------------------ --------------------------------------------
0xx Xxxxx Xxxxx Xxx, Xxxxx
------------------------------ --------------------------------------------
Xxxxxx, XX 00000
------------------------------ --------------------------------------------
Facsimile: 000-000-0000 Facsimile: 000-000-0000
---------------------------- ------------------------------------------
Page 5 of 5
6
BANK OF AMERICA
SCHEDULE TO LEASE SCHEDULE
BANC OF AMERICA LEASING & CAPITAL, LLC INTENDED AS SECURITY NUMBER 001
--------------------------------------------------------------------------------
This Schedule ("Schedule"), dated as of SEPTEMBER 1, 2000 between BANC OF
AMERICA LEASING & CAPITAL, LLC ("Lessor") and CALAVO GROWERS OF CALIFORNIA
("Lessee") is executed pursuant to Lease Intended as Security Number 00989-00300
dated SEPTEMBER 1, 2000 incorporated in this Schedule by this reference (the
"Lease Agreement"). Unless otherwise defined in this Schedule, capitalized terms
used in this Schedule have the respective meanings assigned to such terms in the
Lease Agreement. If any provision of this Schedule conflicts with any provision
of the Lease Agreement, the provisions contained in this Schedule shall prevail.
Lessee hereby authorizes Lessor to insert the serial numbers and other
identification data of the Units, dates, and other omitted factual matters or
descriptions in this Schedule.
1. DESCRIPTION OF UNITS. The Units subject to this Schedule ("Units"), which
have a cost to Lessor ("Lessor's Cost") in the aggregate of 42,331.05, inclusive
of taxes, shipping, installation and other related expenses, if any ("Soft
Costs"), are as follows:
LESSOR'S COST
-------------
QUANTITY DESCRIPTION SERIAL NUMBER (INCLUDING SOFT COSTS)
-------- ----------- ------------- ----------------------
12 Latitude CPIS500GT, 14.1 TFT. US $35,936.16
10 Advanced Port Replicator w/Monitor Stand 2,930.20
Shipping & Handling 420.00
Capitalized Tax 3,044.69
2. ACCEPTANCE. Lessee acknowledges and represents that the Units (a) have been
delivered to and received and inspected by Lessee, (b) are in good operating
order, repair, condition and appearance, (c) are of the manufacture, design and
capacity selected by Lessee and are suitable for the purposes for which the
Units are leased, and are acceptable and satisfactory to Lessee, (d) do not
require any additions or modifications to make them suitable for use, other than
ancillary modifications or additions normally made by lessees of similar assets,
and are available for use and lease by Lessee and Lessor, and (e) have been
irrevocably accepted as "Units" leased by Lessee under this Schedule as of the
date written below (the "Acceptance Date").
3. TERM. The term of the Lease for any Unit is for an "Interim Term" (if any)
beginning on the date of funding by Lessor as to the Unit, and continuing
through and including the day preceding the Base Date; and for a "Base Term" of
THIRTY-SIX (36) months, beginning on the first to occur of the 5th day of the
calendar month during or following the last date of funding as to the Units (the
"Base Date").
4. RENTAL. Interim Rent shall be due Lessor for each day in the Interim Term and
shall equal the daily equivalent of the initial Base Rent. Interim Rent shall be
payable on the Base Date. Base Rent shall be payable in advance in THIRTY-SIX
(36) consecutive monthly rental installments of $1,353.31 each, the first Base
Rent installment being payable on the Base Date and the remaining Base Rent
installments being payable on the same day of each succeeding month.
5. LOCATION OF UNITS. The Units will be located or, in the case of mobile
equipment, principally based at 0000 Xxx Xxxx Xxxxxx. Xxxxx Xxx, XX 00000.
6. END OF TERM PURCHASE. At the end of the original Base Term, or within 15 days
thereafter, Lessee shall purchase the Units "as is and where is", without
representations or warranties of any kind, express or implied, for the cash
amount of one dollar ($1.00) ("Purchase Amount").
7. FURTHER REPRESENTATIONS AND AGREEMENTS. Lessee represents, warrants and
agrees as follows:
(a) All representations and warranties of Lessee contained in the Lease
Agreement are restated as of the Acceptance Date and are true and correct as of
such date.
(b) There has been no material adverse change in the operations, business,
properties or condition (financial or otherwise) ("Material Adverse Change") of
Lessee or any Guarantor since August 25, 2000. There is not pending against
Lessee any litigation, proceeding, dispute or claim that may result in a
Material Adverse Change as to Lessee or that may call into question or impair
Lessee's legal or other ability to enter into and perform its obligations under
this Lease.
(c) The operation and maintenance of any Unit in the ordinary course by Lessee
do not require the entry into any software or other intellectual property rights
agreement with any licensor or other person, except as disclosed to Lessor in
writing prior to the Acceptance Date.
7
BANC OF AMERICA LEASING & CAPITAL, LLC CALAVO GROWERS OF CALIFORNIA
(Lessor) (Lessee)
By: /s/ P. Xxxxxx Xxxxx III By: /s/ Xxxxx X. Xxxxx /s/ XXXXXX XXXXXXX
----------------------------------- ------------------------------------------------
Printed Name: P. Xxxxxx Xxxxx III Printed Name: Xxxxx X. Xxxxx Xxxxxx Xxxxxxx
------------------------- --------------------------------------
Title: Vice President Title: Treasurer Vice President
-------------------------------- ---------------------------------------------
Acceptance Date: 9/1/00
-----------------------------------
