EXHIBIT 10.6
PURCHASE AGREEMENT ASSIGNMENT dated June 23, 1999 between GARDENBURGER,
INC., an Oregon corporation ("Assignor"), and BA LEASING & CAPITAL CORPORATION,
a California corporation ("Assignee").
INTRODUCTION
Assignor has entered into a purchase agreement no. SEE ATTACHED ANNEX
A, dated SEE ATTACHED ANNEX A, (the "Purchase Agreement") with SEE ATTACHED
ANNEX A ("Vendor"), a copy of which Purchase Agreement is attached hereto,
providing for the sale to Assignor of food processing equipment (the "Units"),
which Assignor desires to lease from Assignee under a Lease Agreement dated as
of May 28, 1998 between Assignor and Assignee (the "Lease"; defined terms
therein not otherwise defined herein being used herein as so defined).
NOW, THEREFORE, the parties hereto agree as follows:
1. Assignor hereby assigns to Assignee all of Assignor's right, title
and interest in and to the Purchase Agreement and the Units. Assignee hereby
accepts such assignment. Notwithstanding such assignment, Assignor may pay for
or make advances toward the purchase of one or more Units and then, subject to
satisfaction of the relevant conditions precedent in the Appendix, obtain
reimbursement from Assignee for such advances. Assignee hereby appoints Assignor
as its agent solely for the purpose of purchasing such Units on behalf of
Assignee under the Lease.
2. Neither Assignor nor Assignee may amend, modify, rescind, or
terminate the Purchase Agreement without the prior express written consent of
the other.
3. Notwithstanding this assignment, (a) Assignor shall at all times
remain liable to Vendor under the Purchase Agreement to perform all the duties
and obligations of the purchaser thereunder to the same extent as if this
Purchase Agreement Assignment had not been executed, (b) the exercise by
Assignee of any of the rights assigned hereunder shall not release Assignor from
its duties or obligations to Vendor under the Purchase Agreement, (c) Assignee
shall not be obligated to make any payment to Vendor other than an amount equal
to the purchase price of the Units as shown on the Purchase Agreement attached
hereto and (d) the obligation of Assignee to purchase the Units is conditioned
upon acceptance of the Units by Assignor and the fulfillment by Assignor of the
conditions set forth in the Lease.
4. Assignor represents and warrants that (a) Assignor has the right to
assign the Purchase Agreement without the Vendor's consent or, if not
assignable, consent has been obtained and a copy of which is attached hereto,
(b) the right, title and interest of Assignor in the Purchase Agreement so
assigned is and shall be free from all claims, liens, security interests and
encumbrances, (c) Assignor will warrant and defend the assignment against claims
and demands of all persons, (d) the Purchase Agreement contains no conditions
under which Vendor may reclaim title to any Unit after delivery, acceptance and
payment therefor and (e) the Purchase Agreement is and when the Purchase
Agreement Assignment is executed and delivered it will be in full force and
effect and enforceable in accordance with its terms and Assignor is not and will
not then be in default thereunder.
5. At any time and from time to time, upon the written request of
Assignee, Assignor agrees to promptly and duly execute and deliver any and all
such further documents and take such further actions as Assignee may reasonably
request in order to obtain the full benefits of this Purchase Agreement
Assignment and of the rights and powers herein granted.
IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement Assignment to be duly executed as of the day and year first written
above.
BA LEASING & CAPITAL CORPORATION GARDENBURGER, INC.
(Assignee) (Assignor)
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------------- -------------------------------
Title: Vice President Title: Chief Financial Officer
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Title: Assistant Vice President
ANNEX A TO PURCHASE AGREEMENT ASSIGNMENT
PURCHASE ORDER (sorted by assignment date and PO#)
[List of items purchased too extensive to display]
ACCEPTANCE CERTIFICATE NO. 001
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Reference is made to the Lease Agreement dated as of May 28, 1999 between
BA LEASING & CAPITAL CORPORATION, as Lessor, and GARDENBURGER, INC., as Lessee
(together with Appendix No. 1) thereto dated May 28, 1999, the "Lease");
capitalized terms not otherwise defined herein having the same meanings as in
the Lease). The Lease is incorporated herein by reference.
1. ACCEPTANCE; CONFIRMATIONS. Lessee confirms that (A) the items of
equipment delivered in ANNEX A have been delivered to, are in the possession of
and are accepted by Lessee for leasing under, and constitute "Units" subject to
and governed by, the Lease, (B) the Units (I) have been fully inspected by
qualified agents of Lessee and are in good order, operating condition and
repair, (ii) have been properly installed (subject only to any minor
undischarged obligations of suppliers, manufacturers or installers thereof to
promptly update and conform the same as provided by their respective agreements
and warranties), (iii) meet all recommended or applicable safety standards, (iv)
are, as of the Delivery Date set forth below, available for use and service by
Lessee and Lessor and (v) have been marked or labeled showing Lessor's interest
in the form and to the extent required by the Lease, (C) the dollar amounts set
forth in Annex A with respect to such equipment are correct and (D) Lessee must
pay the rent and all other sums provided for in the Lease with respect to such
Units.
2. DELIVERY DATE. The Delivery Date of the Units is June 24, 1999.
3. PURCHASE PRICE. The Purchase Price of the Units is $3,970,817.92, as set
forth in Annex A.
4. SCHEDULE. The Base Date and the Base Rent and any Interim Rent for the
Units will be determined pursuant to the relevant Appendix and set forth in a
Schedule to this Acceptance Certificate.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Acceptance
Certificate as of the Delivery Date set forth above.
Lessor: Lessee:
BA LEASING & CAPITAL CORPORATION GARDENBURGER, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------- -----------------------------------
Title: Vice President Title: Chief Financial Officer
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Title: Assistant Vice President
