EXHIBIT 10.36
PNC LEASING CORP PNCBANK
Pittsburgh, Pennsylvania
SCHEDULE OF LEASED EQUIPMENT Schedule Number: 00931-002
(First Amendment Tax Lease) Master Lease Agreement No.: 931
Master Lease Agreement Date: October 11, 1996
LESSEE: Xxxxxxxxx Foods Venture, L.P. SUPPLIER: Various-
770 North Center Refer to Supplement to
Xxxxxxxxxx, XX 00000 Schedule of Leased
Equipment attached
hereto and made a part
hereof.
1. SCHEDULE. This Schedule of Lease Equipment ("Schedule") is hereby made a
part of the Lease referenced above between the undersigned Lessor and the
undersigned Lessee. All terms and conditions of said Lease are
incorporated herein by reference.
2. EQUIPMENT. The Equipment which is subject to the Lease is described on the
supplement attached hereto and incorporated herein ("Supplement"), and
includes all cash and non-cash proceeds and products (including without
limitation insurance proceeds) of the Equipment, and all additions and
accessions thereto, substitutions therefor and replacements thereto.
3. TITLE OF EQUIPMENT. At Lessee's request, Lessor has purchased the
Equipment as a buyer in the ordinary course of business for value. Title
to the Equipment leased hereunder shall remain with the Lessor at all
times. Lessee shall have no right, title or interest in or to Equipment
except as expressly set forth in the Lease.
4. EQUIPMENT LOCATION. The Equipment shall be located at the address stated
in Supplement and shall not be removed without Lessor's prior written
consent.
5. INTERIM RENTAL TERM. The interim rental term of the Lease as respects the
Equipment described herein shall commence on the date of Lessor's first
advance of funds for the purchase of the Equipment and shall terminate on
the day before the commencement of the base lease term.
6. INTERIM RENT. Interim rent shall be calculated at the Bank's Prime Rate of
interest on the amount funded by Lessor from time to time, for the number
of days outstanding from each funding date until the lease commencement
date ("Interim Rent"), plus applicable taxes, if any. Interim Rent shall
be due and payable monthly during the interim rental term, upon receipt by
Lessee of Lessor's invoice therefor.
7. LEASE TERM. The base term of the Lease as respects the Equipment is set
forth in the Supplement.
8. RENT. The Lessee agrees to pay basic rent for the Equipment in the amount
and on the dates set forth in Supplement, plus applicable taxes, if any.
9. DEPRECIATION RECOVERY PERIOD. For purposes of Sections 168(e)(3) and
168(c) of the Code (as defined hereafter), the Equipment constitutes five
(5) year recovery property.
10. TAX INDEMNIFICATION.
(a) TAX ASSUMPTIONS. This Lease has been entered into on the basis that
Lessor is entitled to such federal, state and local income tax deductions,
credits and other benefits (the "Tax Benefits") as are provided to an owner
of property including, without limitation: (A) the Recovery Deductions (as
defined herein); and (B) the interest deduction under the Internal Revenue
Code of 1986, as amended (the "Code") in the full amount of any interest
paid or accrued by Lessor, using Lessor's method of tax accounting, for any
indebtedness incurred by Lessor in financing its purchase of the Equipment
(the "Interest Deductions").
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(b) TAX REPRESENTATIONS. Lessee represents and warrants to Lessor (the
"Tax Representations") that: (A) for purposes of Sections 168(e)(3) and
168(c) of the Code, each Item of Equipment constitutes an asset described
in the "property class" and "applicable recovery period" as designated
herein in paragraph 9; (B) the Lessor shall be entitled to claim federal,
state and local depreciation deductions (the "Recovery Deductions") which
are based upon, and will fully recover, the total cost of each Item of
Equipment, including, for federal income tax purposes, modified accelerated
cost recovery system deductions computed pursuant to Code Section
168(b)(1)(A) and (B) and 168(e)(3) based upon 100% of Lessor's original
cost of each Item of Equipment; (C) each Item of Equipment is not "limited
use property" within the meaning of Revenue Procedure 76-30 (1976-2 Cum.
Bull. 647), and no improvements, changes, additions, or alterations made by
or at the request of Lessee will cause such Item of Equipment to be
"limited use property"; (D) this Lease, including any and all Schedules,
constitutes a "true lease" for federal, state and local income tax purposes
and Lessor will be the "true owner" of each Item of Equipment entitled to
claim the Recovery Deductions and other Tax Benefits anticipated by Lessor
hereunder; (E) each Item of Equipment is reasonably estimated to have an
economic useful life of at least 125% of the initial term of the Lease and
have an economic value of at least 20% of Lessor's original cost of the
Item of Equipment at the expiration of the lease term; (F) each Item of
Equipment does not and will not require any improvements, modifications,
alterations or additions in order to render it complete for its intended
use by Lessee; (G) Lessor will not realize any taxable income as a result
of any improvements, modifications, alterations or additions to the
Equipment or any Item of Equipment made by anyone other than Lessor; (H)
all amounts includable in the gross income of Lessor with respect to each
Item of Equipment and all deductions allowable to Lessor with respect to
each Item of Equipment will be treated as derived from, or allocable to,
sources within the United States; and (I) Lessee will maintain sufficient
records to verify such use which records will be furnished to Lessor within
30 days after receipt of a demand therefor.
(c) TAX INDEMNITY. If for any reason whatsoever, including, without
limitation, the falsehood or inaccuracy of any Tax Representation
(excluding only a failure of Lessor to claim properly or timely the
Recovery Deductions or Interest Deductions for the appropriate year, or the
failure of Lessor to have sufficient taxable income to benefit from the
Recovery Deductions or Interest Deductions): (A) Lessor shall lose, shall
not have or shall lose the right to claim or there shall be disallowed,
eliminated, reduced, or recaptured with respect to Lessor, for federal,
state or local income tax purposes, all or any portion of the Tax Benefits
with respect to an Item of Equipment; or (B) the Lessor's anticipated net
after-tax economic and accounting yields and periodic net after-tax cash
flows over the term of the applicable Schedule (based upon the same
assumptions used by Lessor in originally evaluating the Lease and
applicable Schedule at the commencement of the term of the applicable
Schedule) (the Lessor's "Anticipated Economics") is adversely affected due
to (i) any income or deductions with respect to any Item of Equipment being
treated as derived from, or allocable to, sources without the United
States, or (ii) enactments of new income tax legislation or amendments and
other changes to the Code or any other state or local income tax law,
including the promulgation of regulations and judicial or administrative
rulings with respect thereto; or (C) the Lessor shall be required to
include any amount in its taxable income as a result of any improvements,
modifications, alterations or additions to any Item of Equipment made by
anyone other than Lessor (an occurrence of an event under (A), (B) and/or
(C) being referred to individually or collectively as a "Loss"); then, at
the option of the Lessor, (x) the rent over the remainder of the term of
the applicable Schedule shall, on and after the next succeeding rent
payment date, after written notice to Lessee by Lessor that a Loss has
occurred, be increased by such amount which, in the sole opinion of Lessor,
after deduction of all taxes owed by Lessor to any governmental or taxing
authority as a result of such increase in rent, will cause Lessor's actual
net after-tax economic and accounting yields and periodic net after-tax
cash flows over the term of the applicable Schedule (the Lessor's "Actual
Economics") to equal the Lessor's Anticipated Economics that would have
been available if such Loss had not occurred, and Lessee shall forthwith
pay to Lessor, on demand, an amount which, after deduction of all taxes
owed by Lessor to any governmental or taxing authority as a result of the
receipt of such amount, shall be equal to the amount of any penalties,
interest or additions to tax which may be assessed by any governmental or
taxing authority against Lessor attributable to the Loss, or (y) after
written notice to Lessee by Lessor that a Loss has occurred, Lessee shall
pay to Lessor, upon demand, in a lump sum, an amount which, after deduction
of all taxes owed to any governmental or taxing authority by Lessor as a
result of the receipt of such lump sum payment, will cause Lessor's Actual
Economics to be equal to the Lessor's Anticipated Economics that would have
been available if such Loss had not occurred plus an amount which, after
deduction of all taxes owed by Lessor to any governmental taxing authority
as a result of the receipt of such amount, shall be equal to the amount of
any penalties, interest, or additions to tax which may be assessed by any
governmental or taxing authority against Lessor attributable to the Loss.
(d) CALCULATIONS. All calculations of Lessor's Actual Economics with
respect to a Loss shall be determined on the basis of the assumption that
Lessor will be subject to federal, state and local corporate income tax
rates at the maximum statutory rate. Any written notice that any Loss has
occurred pursuant to this paragraph 10 shall be accompanied by a written
statement from Lessor
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describing in reasonable detail such Loss and the computations of the
amounts payable, either in a lump sum or revised rent payments as set forth
above, which computation shall be binding and conclusive upon Lessee,
absent manifest error.
(e) INTEREST. Upon failure to pay any indemnification amount when due, by
demand or otherwise, such unpaid obligation shall bear interest at a per
annum rate equal to the prime rate of interest as announced, from time to
time, by the Bank.
(f) CONSOLIDATED RETURN. As used in this paragraph 10, the term "Lessor"
shall include any successor or assign of Lessor and any member of an
affiliated group of which Lessor is, or may become, a member if
consolidated, joint or combined returns are filed for such affiliated group
for federal, state or local income tax purposes.
(g) SURVIVAL. The indemnities and assumptions of liabilities and
obligations provided for in this paragraph 10 shall continue in full force
and effect notwithstanding the expiration or other termination of this
Lease.
11. END OF TERM OPTIONS.
(a) Provided that no Event of Default will have occurred and is continuing,
on the expiration of the base lease term, at its option, Lessee may
purchase all of the Lessor's right, title and interest in and to all, but
not less than all of the Equipment described in this Schedule. On the last
day of the base lease term, the Lessee shall pay to the Lessor an amount
equal to the greater of (i) the fair market value of the Equipment
determined in accordance with the provisions of paragraph 11(b), or (ii)
the percent of the Equipment Cost stated in the Supplement hereto. In
order to exercise its option, Lessee shall notify Lessor in writing of its
intention to exercise such option at least 180 days prior to the expiration
of the base lease term. Lessee will deliver to the Lessor, on or before
the expiration of the base lease term, an appraisal of the Equipment as
described in subparagraph 11(b), together with the payment of the purchase
price in immediately available funds. Thereupon, the Lessor shall convey
the Equipment to the Lessee on an as-is, where-is basis without
representation or warranty whatsoever, except that the Equipment shall be
conveyed free and clear of any liens or encumbrances created due to or
through the acts or omissions of the Lessor.
(b) As used in paragraph 11(a), "fair market value" of the Equipment shall
be the value of the Equipment as of the last day of the base term of the
Lease, as determined by an independent appraiser Selected by the Lessee
and retained at Lessee's expense. The report of the appraiser shall be in
writing and delivered to the Lessor on or before the expiration of the base
lease term.
(c) In the event that the Lessee does not purchase the Equipment in
accordance with paragraph 11(a) above, then (i) Lessee shall continue to
pay rent for the remainder of the base lease term in the amount set forth
in the Supplement hereto, and (ii) this Schedule shall automatically be
extended for an additional term (the "Renewal Term") as stated in the
Supplement hereto, without further action on the part of the Lessor or the
Lessee. At the expiration of the Renewal Term and conditioned that no
Event of Default shall have occurred and be continuing, the Lessee may
either (i) purchase the Equipment at the fair market value as of the last
day of the Renewal Term as determined in accordance with paragraph 13
herein, or (ii) return the Equipment to the Lessor in accordance with
paragraph 12 herein.
12. RETURN OF EQUIPMENT. Lessee shall give Lessor written notice a minimum
of six (6) months prior to the expiration of this Lease of its intent to
return the Equipment. Upon the expiration or earlier termination of
this Lease, Lessee shall return each Item of Equipment, freight and
insurance prepaid, to Lessor (or Lessor's nominee) at a location
designated by Lessor. If requested by Lessor, Lessee will provide 180
days free storage at the Equipment's location at the expiration of the
term. During the storage period, Lessee shall maintain the Equipment in
operating condition for the purpose of on-site inspections by
prospective buyers and shall keep the Equipment insured in accordance
with paragraph 18 of the Lease. The Equipment and all parts thereto
shall be free and clear of all liens (other than Lessor liens), and
shall be free of all advertising or insignia and residual materials,
cleaned, painted, complete with no missing components or attachments,
and fully operational and able to perform its described task
effectively, without repair or overhaul, within the original tolerances
and specifications set by the manufacturer. Any and all costs of
dismantling, packing, and removing of the Equipment shall also be paid
by Lessee. If the Equipment is returned in a condition other than that
described, Lessor may commission an independent appraiser, licensed
professional engineer, or manufacturer technical representative,
obtained by Lessor at Lessee's cost and expense, to determine the extent
of costs to return the Equipment to the condition required herein.
Lessee shall promptly advance payment for all necessary repairs.
Lessee's obligations to pay for repairs shall be reduced by any proceeds
of insurance which Lessor has received due to the damage to the
Equipment. If Lessee fails to provide timely notice of return or fails
to return the Equipment at the end of the base lease term or any renewal
thereof to the designated location, and does not exercise the renewal or
purchase options provided for herein (if
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any), then this Lease, at Lessor's option, will be deemed extended on a
month-to-month basis for a minimum renewal term of three (3) months, with
rent due on the first of each month at the rate applicable during the base
lease or renewal term just ended.
13. FAIR MARKET VALUE AND ESTIMATED USEFUL LIFE. In all circumstances, except
where Lessee has elected to purchase the Equipment pursuant to paragraph
11(a), fair market value, fair market rental value and estimated useful
life of the Equipment shall be determined by an appraiser of recognized
standing selected by mutual agreement of the Lessor and Lessee. The
appraiser shall determine the fair market value of the Equipment on its in
place value without reduction or consideration of the cost of dismantling,
preparation for shipping or transportation of the Equipment. The
appraiser's decision shall be binding on the parties. If the Lessor and
Lessee are not able to agree on an appraiser, then each party shall select
an appraiser, and the two appraisers shall select a third appraiser. The
two appraisals which are closest in dollar amount and/or estimated life, as
the case may be, shall be averaged to determine the fair market value or
rental or the estimated useful life, as the case may be, which
determination shall be binding upon the parties. If Lessee has given
Lessor notice of Lessee's intentions to exercise its purchase or renewal
option, and the parties have obtained an appraisal of the Equipment as
provided for herein, Lessee shall be bound by the appraisal and shall
purchase the Equipment, or renew the Lease, as the case may be, at the
value determined by the appraisal. If Lessee fails or refuses to cooperate
in the appointment of an appraiser, the value determined by the appraiser
chosen by the Lessor shall be final and binding. The cost of the
appraisal(s) shall be borne by the Lessee.
14. MARKING OF EQUIPMENT. At Lessor's request, Lessee shall xxxx the Equipment
in a distinct and conspicuous manner with the name of the Lessor followed
by the words "Owner and Lessor" or other appropriate words designated by
Lessor. Lessee shall not alter, deface or remove any of Lessor's ownership
identification plates or markings on the Equipment and, upon Lessor's
request, Lessee shall affix or re-affix such identification.
15. INSURANCE. In addition to the requirements contained in paragraph 18 of
the Lease, the following insurance requirements shall apply:
LIABILITY COVERAGE:
(a) General liability including/comprehensive form:
premises/operations; products/completed operations; contractual
liability; independent contractors; broad form property damage;
personal injury; and collapse hazard.
(b) Bodily injury and Property Damage Combined Single Limit Per
Occurrence: $1,000,000.00.
(c) Fire-legal liability-custody, care or control, each occurrence:
$100,000.00.
PROPERTY COVERAGE:
(a) All risk of physical loss; Equipment must be insured for at least
the total original cost.
16. COVENANTS. By executing and delivering to Lessor, the Lease Acceptance
Certificate, Lessee warrants, covenants and agrees that (a) Lessee has
received all of the Equipment described in this Schedule at the location
described in paragraph 4 hereof; (b) Lessee has duly inspected and accepts
such Equipment without reservation; (c) Lessee is unconditionally bound to
pay to Lessor the total rent and other payments due under the Lease,
whether or not the Equipment described herein may now or hereafter become
unsatisfactory in any respect; and (d) notwithstanding anything contained
herein, Lessor and Lessee shall continue to have all rights which either of
them might otherwise have with respect to the Equipment described herein
against any manufacturer or seller of the Equipment or any part thereof.
17. ADDITIONAL PROVISIONS. (a) This Supplement is incorporated herein by
reference; (b) Lessee grants Lessor the right to insert the Equipment
description and payment dates, amounts, and terms in the Supplement at the
time of commencement of the basic lease term.
WITNESS the due execution hereof with the intent to be legally bound this 22nd
day of December, 1997.
LESSOR: PNC LEASING CORP LESSEE: XXXXXXXXX FOODS VENTURE, L.P.
BY: G/W FOODS, INC., IT'S GENERAL PARTNER
By: By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------- ------------------------------
Title: Title: President
--------------------------- ---------------------------
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PNC LEASING CORP PNCBANK
ASSIGNMENT OF EQUIPMENT PURCHASE AGREEMENTS
THIS Assignment of Equipment Purchase Agreements (hereinafter called
"Assignment") is made this 22nd day of December, 1997 by and between Xxxxxxxxx
Foods Venture, L.P. ("Assignor"), and PNC Leasing Corp., a wholly owned
subsidiary of PNC Bank, National Association ("Assignee").
WITNESSETH:
WHEREAS, Assignor has entered into certain Equipment Purchase Agreements
("Purchase Agreements") with the suppliers or manufacturers ("Vendors") of
certain equipment, pursuant to which the Vendors agreed to sell to Assignor the
equipment described in the Purchase Agreements ("Equipment") upon the terms and
conditions set forth in the Purchase Agreements;
WHEREAS, Assignor and Assignee have agreed that Assignee will purchase the
Equipment directly from the Vendors and will thereupon lease the same to
Assignor pursuant to a certain Master Lease Agreement ("Lease") entered into
between Assignor and Assignee dated October 11, 1996; and
WHEREAS, in order for Assignee to purchase the Equipment from the Vendors, it
will be necessary for Assignor to assign its right, title and interest in and to
the Purchase Agreement to Assignee.
NOW, THEREFORE, in consideration of the foregoing, in consideration of the
promises and mutual covenants and agreements hereinafter set forth, and with the
intent to be legally bound hereby, Assignor and Assignee do hereby mutually
covenant and agree as follows:
1. Assignor hereby sells, assigns, transfers, and sets over unto Assignee all
of Assignor's right, title and interest under, in, to and in respect to the
Purchase Agreements, including (without limitation) the right (i) to accept
and (ii) to take title to the Equipment and be named as "buyer" in any
documents of title, bills of sale, invoices, or similar documents to be
delivered by Vendors in respect of the Equipment under the respective
Purchase Agreements.
2. In the event that any of the Vendors hereafter require the making of any
down payments, progress payments or other advances, same shall be made by
Assignor, unless it is otherwise agreed to in writing by Assignee and
Assignor. Any such payments and/or advances shall be reimbursed to
Assignor when and if Assignee is required to make payment of the Purchase
Price therefore pursuant to the Lease including all schedules and
attachments thereto.
3. Assignee hereby accepts this Assignment of Assignor's right, title and
interest in and to the Purchase Agreements, and by this acceptance, agrees
to (a) purchase the Equipment directly from the Vendors and (b) pay the
balance of all payments due Vendors, at the time Assignee is required to
make payment of the Purchase Price to Vendors, pursuant to the Purchase
Agreements, provided, that there has been satisfactory compliance with the
terms and conditions contained in the Lease relating to the purchase by
Assignee of the Equipment; and provided further, that the Lease is in full
force and effect and no default hereunder has occurred.
4. Notwithstanding the foregoing Assignment, Assignee hereby designates
Assignor to perform all obligations and duties of Assignee under the
Purchase Agreement except (i) the purchase of the Equipment and (ii) the
payment of monies due the Vendors under the Purchase Agreements as of the
time of the completion of delivery and acceptance of the Equipment;
provided, however, the Assignor may not enter into any field orders, change
orders, or other amendments, modifications or supplements to any Purchase
Agreement without the written consent or countersignature of the Assignee,
noted thereon if such field orders, amendments or modifications would
(i) change the number of items of Equipment which the Assignee is obligated
to purchase under any Purchase Agreement; (ii) increase the aggregate
purchase price of the Equipment to an amount in excess of $259,998.66;
(iii) postpone beyond ___________ the time for delivery of the Equipment
and successful completion of the initial tests prior to acceptance of the
Equipment pursuant to the Purchase Agreements; (iv) change or modify in any
material way the performance standards or other requirements for the
Equipment referred to in any Purchase Agreement or related documents; or
(v) result in any recision, cancellation or termination of any Purchase
Agreement. Assignor agrees to such designation and agrees to perform such
obligations. The obligations of Assignor assumed hereby shall continue
until termination of the Lease or until Assignee declares a default
thereunder.
5. It is expressly agreed that, anything herein contained to the contrary
notwithstanding (a) the Assignor shall at all times remain liable to the
Vendors under the Purchase Agreements to perform all of the duties and
obligations of Buyer thereunder to the same extent as if this Assignment
had not been executed; (b) the exercise by the Assignee of any rights
assigned hereunder shall not release the Assignor from any of its duties or
obligations to any Vendor under any Purchase Agreement except to the extent
that such exercise by the Assignee shall constitute performance of such
duties and obligations, and (c) Assignee shall have no obligation or
liability under any Purchase Agreement by reason of or arising out of this
Agreement or be obligated to perform any obligation or duty of Assignor
under the Purchase Agreements or to make any payments (other than the
obligation of Assignee to pay the purchase price for the Equipment) or to
make any inquiry as to the sufficiency of any payment received by any
Vendor or to present or file any claim or to take any other action to
collect or enforce any claims for any payment assigned hereunder.
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6. In the event that Assignor notifies Assignee that Assignor has determined
not to lease any of said Equipment from Assignee (whether because of breach
of contract on the part of the Vendor or otherwise). Assignee hereby
automatically reassigns to Assignor, without recourse and without
representation or warrant of any kind whatsoever, the appropriate contract
rights and Purchase Agreements and releases Assignee's interests therein.
Assignee shall thereupon have no further obligations, responsibilities or
liabilities in connection with said contract rights, Purchase Agreements
and/or Equipment and Assignor hereby agrees to indemnify Assignee and hold
Assignee harmless from and against any and all claims, demands, actions or
proceedings arising out of or in any way relating to said contract rights,
Purchase Agreements and/or the Equipment by whomsoever asserted, and any
and all losses, damage, obligations, liabilities, costs or expenses
(including attorneys' fees) suffered, paid or incurred by Assignee in
connection therewith.
7. Assignor does hereby constitute, effective as of the time Assignee has
declared the Lease to be in default, the Assignee, its successors and
assigns, the Assignor's true and lawful attorney, irrevocably, with full
power in the name of the Assignor or otherwise, to ask, require, demand,
receive, compound and give acquittance for any and all monies and claims
for money due and to become due under, or arise out of, any Purchase
Agreement, to endorse any checks or other instruments or orders in
connection therewith, or to file any claim or to take any action or
institute any proceedings which the Assignee may deem to be reasonably
necessary or advisable.
8. Assignor does hereby represent and warrant that the Purchase Agreements
are, or will be, in full force and effect and enforceable in accordance
with their terms, except as limited by bankruptcy, insolvency,
reorganization and other similar laws affecting the enforcement of
creditors' rights, and the Assignor is not, or will not be, in default
thereunder. Assignor does hereby further represent and warrant that the
Assignor has not assigned or pledged any interest in any Purchase Agreement
to any entities or individuals other than the Assignee, and hereby
covenants that it will not assign or pledge, so long as this Agreement
shall remain in effect, the whole or any part of the rights hereby assigned
to any entity or individual other than the Assignee.
9. Assignor agrees that at any time and from time to time, upon written
request of the Assignee, Assignor shall promptly and duly execute and
deliver any and all such further instruments and documents and take such
further action as the Assignee may reasonably request in order that
Assignee obtain the full benefits of this Agreement.
10. All notices, requests, demands or other communications to or upon the
Assignee and Assignor shall be deemed to have been given or made when
deposited in the mails, postage for certified airmail prepaid or in the
case of telegraphic notice, when delivered to the telegraph company,
addressed to respective addresses contained in the Lease.
11. Neither this Assignment nor any provision hereby may be changed, waived,
discharged or terminated orally, but only by an instrument in writing by
the party against whom enforcement of the change, waiver discharge or
termination is sought.
12. This Assignment shall be binding upon the Assignor and its successors and
assigns and shall be binding upon and inure to the benefit of the Assignee
and its successors and assigns.
13. This Assignment and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the laws of the
Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be duly
executed with the intent to be legally bound.
ASSIGNEE: PNC LEASING CORP ASSIGNOR: XXXXXXXXX FOODS VENTURE, L.P.
By: G/W FOODS, INC., IT'S GENERAL PARTNER
By: By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------- --------------------------------
Title: Title: President
--------------------- ------------------------------
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PNC LEASING CORP PNCBANK
LESSEE ACCEPTANCE CERTIFICATE
LESSEE: XXXXXXXXX FOODS VENTURE, L.P. SUPPLIER: VARIOUS-REFER TO
770 NORTH CENTER SUPPLEMENT TO SCHEDULE
XXXXXXXXXX, XX 00000 OF LEASED EQUIPMENT
1. LESSEE ACCEPTANCE CERTIFICATE. This Lessee Acceptance Certificate
("Acceptance") is hereby made a part of that certain Master Lease Agreement
dated October 11, 1996, and that certain Schedule of Leased Equipment dated
December 22, 1997, both between Lessor and the undersigned Lessee. All
terms and conditions of said Lease and Schedule are incorporated herein by
reference.
2. ACCEPTANCE DATE. Lessee hereby agrees that if the base term of the Lease
has not commenced by the Lessee on or before ____________, 199__ for any
reason whatsoever, then upon written demand by the Lessor, the Lessee will
immediately reimburse Lessor for the total amount set forth in this
Acceptance Certificate ("Cost"), plus interest thereon at PNC Bank,
National Association's Prime Rate, in effect as of the date of funding,
plus two percent (2%) per annum, for the period from the date of funding by
Lessor of said Cost to the payment date to Lessor of said Cost.
3. EQUIPMENT. The Equipment subject to the Lease is described below and
includes all cash and non-cash proceeds and products (including without
limitation insurance proceeds) of the foregoing, and all additions and
accessions thereto, substitutions therefor and replacements thereto:
--------|----------------------------------------------------------|------------
QUANTITY| DESCRIPTION | COST
--------|----------------------------------------------------------|------------
| Refer to invoices attached hereto and made a part hereof.| $259,998.66
--------|----------------------------------------------------------|------------
The Total Equipment Cost including taxes levied at the time of sale, if
any, is: $259,998.66
4. EQUIPMENT LOCATION. The Equipment shall be located at the following
address and shall not be removed without Lessor's prior written consent,
which consent shall not be unreasonably withheld.
000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxx XX 00000
--------------------------------------------------------------------------------
Street City County State Zip Code
--------------------------------------------------------------------------------
PNC LEASING CORP Date: December 22, 0000
Xxxxxxxxxx, XX
Gentlemen:
All of the Equipment listed above was received by us and is in good order
and condition, installed to our satisfaction and acceptable to us.
We approve the payment of the invoice(s) covering the Equipment for the
amount(s) shown thereon.
Lessee represents and warrants (a) that the representations and warranties
as set forth in paragraph 25 of the Lease are true and correct as of the date
hereof; (b) that Lessee has satisfied or complied with all requirements set
forth in the Lease to be satisfied or complied with on or prior to the date
hereof; and (c) that no Event of Default under the Lease has occurred and is
continuing on the date hereof.
Date Equipment was first placed in service:____________________
LESSEE: XXXXXXXXX FOODS VENTURE, L.P.
BY: G/W FOODS, INC., IT'S GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: President
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PNC LEASING CORP PNCBANK
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS THAT Xxxxxxxxx Foods Venture, L.P.,
(hereinafter referred to as "Seller"), with its principal place of business at
000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 for and in consideration of the
sum of Two hundred and fifty nine thousand nine hundred and ninety eight Dollars
and 66/100 ($259,998.66) paid to it by PNC Leasing Corp. (hereinafter referred
to as "Purchaser") with an address at Xxxxxxxxxx, Xxxxxxxxxxxx 00000, has
granted, bargained, sold, conveyed, transferred, assigned and delivered, and by
these presents does grant, bargain, sell, convey, transfer, assign and deliver
unto Purchaser, its successors and assigns, all of its right, title and interest
in certain equipment (herein called "the Equipment"), which is described on
Exhibit A attached hereto and made apart hereof.
TO HAVE AND TO HOLD all singular the Equipment by these presents bargained,
sold and confirmed unto the Purchaser, its successors and assigns, forever.
AND, Seller, for itself, its successors and assigns, does hereby covenant
with Purchaser that at the time of this sale, Seller had legal title to the
Equipment, and at the time of delivery of the Equipment to the Purchaser, the
Seller's title to the Equipment was free and clear of all liens, claims and
encumbrances of any nature whatsoever.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed in its
name by an authorized officer as of this 22nd day of December, 1997.
ATTEST: SELLER: XXXXXXXXX FOODS VENTURE, L.P.
By: G/W FOODS, INC., IT'S GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------- ----------------------------
Title: President
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PNC LEASING CORP PNCBANK
SUPPLEMENT TO SCHEDULE OF LEASED EQUIPMENT NO. 00931-002, DATED DECEMBER 22,
1997
(First Amendment Tax Lease)
1. SUPPLEMENT: This Supplement is attached to and made and part of that
certain Schedule of Leased Equipment as described above between PNC LEASING
CORP as Lessor and XXXXXXXXX FOODS VENTURE, L.P. as Lessee, which Schedule
is incorporated in and made a part of the Master Lease Agreement between
the Lessor and Lessee, which is herein referred to as the "Lease."
2. EQUIPMENT DESCRIPTION:
--------|----------------------------------------------------------|------------
QUANTITY| EQUIPMENT DESCRIPTION | COST
--------|----------------------------------------------------------|------------
| Refer to invoices attached hereto and made a part hereof.| $259,998.66
--------|----------------------------------------------------------|------------
3. EQUIPMENT LOCATION: 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxx XX 00000
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Street City County State Zip Code
4. BASE LEASE TERM: The base term of the Lease as to the Equipment described
in this Supplement is sixty (60) months, commencing on ____________, and
terminating on _________________, unless sooner terminated under the terms
of the Lease.
5. RENT: Total rent of $________, plus applicable taxes, if any, is due and
payable as follows:
-----------------|---------------|----------|----------|---------|--------------
NUMBER AND TYPE | DATE PAYMENTS | AMOUNT OF| TAX ON | TOTAL | DATE PAYMENTS
OF PAYMENTS | COMMENCE | PAYMENT | PAYMENT | PAYMENT | TERMINATE
---------------------------------|----------|----------|---------|--------------
Sixty (60) | | | | |
Monthly | | | | |
Payments | | | | |
--------------------------------------------------------------------------------
6. PURCHASE OPTION: In accordance with subparagraph 11(a) of the Schedule,
Lessee may purchase all, but not less than all, of the Equipment described
herein, by paying to Lessor on the last day of the base term of the Lease,
an amount equal to the greater of (i) the fair market value of the
Equipment determined as provided in subparagraph 11(b) of the Schedule, or
(ii) twenty percent (20%) of the Equipment cost.
7. RENEWAL TERM: In accordance with subparagraph 11(c) of the Schedule,
Lessee may extend the Lease for a Renewal Term of twelve (12) months with a
monthly rent equal to __________ percent of the Equipment cost, plus
applicable taxes, with the first such rent being due and payable by Lessee
on_________________________.
WITNESS the due execution hereof with the intent to be legally bound this 22nd
day of December, 1997.
PNC LEASING CORP, LESSOR XXXXXXXXX FOODS VENTURE, L.P., LESSEE
By: G/W FOODS, INC., IT'S GENERAL PARTNER
By: By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Title: President
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