Exhibit 10.2
Lease Agreement
Customer Number: 5033592
FARM CREDIT LEASING
1600 Colonnade
0000 Xxxxxxx XXXX
Xxxxxxxxxxx XX 00000-0000
Lessor and Lessee have executed this Lease Agreement effective March 6, 2002 and
hereby agree to the terms contained below and in any attachments made a part of
this Lease Agreement.
This Lease and the attachments hereto constitute the entire agreement of the
parties with respect to the leasing of the Equipment and the other subject
matter of this Lease. This Lease supersedes all prior written and/or oral
understandings or agreements with respect to the subject matter hereof, and no
change, modification, addition, or termination of this Lease shall be
enforceable unless in writing and signed by Lessor and Lessee.
Lessee:
Dakota Growers Pasta Company
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(Print or Type Full Name)
By:
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Signature Date
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Title (if Applicable)
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Signature Date
Address: Xxx Xxxxx Xxxxxx, X.X. Xxx 00, Xxxxxxxxxx, XX 00000-0000
STATE OF INCORPORATION/ORGANIZATION: North Dakota
REGISTRATION/ORGANIZATION NUMBER: 7604000
Lessor:
Farm Credit Leasing Services Corporation
By:
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Signature
1600 Colonnade
0000 Xxxxxxx XXXX
Xxxxxxxxxxx, XX 00000-0000
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Title
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Date
In consideration of the mutual covenants hereinafter contained, the parties
hereby agree as follows:
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1. LEASE OF EQUIPMENT. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, subject to the terms of this Lease Agreement ("Lease" or "Lease
Agreement"), the equipment and other property (collectively, the "Equipment",
any one item of which may be referred to individually as an "Item of Equipment")
described in any Schedule A ("Schedule A") executed by Lessor and Lessee and
made a part hereof. Lessee hereby authorizes Lessor to include in any Schedule A
the serial number and other information identifying the Equipment when
determined by Lessor. Time is of the essence in Lessee's payment and performance
of each of its obligations under this Lease.
Each such Schedule A when executed by the parties shall be deemed to be a part
of this Lease, it being understood and agreed that this Lease shall be a Master
Lease. All Schedules, addenda or other attachments to this Lease executed by
Lessor and Lessee are hereby incorporated herein and made a part hereof. Each
Schedule A, incorporating the terms and conditions of this Lease, shall
constitute a separate instrument of lease.
2. RENTALS/LEASE TERM. Lessee agrees to pay Lessor rentals for each Item of
Equipment leased under this Lease as set forth in the Schedule A applicable to
such Item of Equipment. All rentals shall be payable as described to Lessor at
Lessor's mailing address set forth in such Schedule A, or to such other person
or at such other place as Lessor may from time to time designate in writing.
"Scheduled Lease Commencement Date" for purposes of this Lease shall be the
first day of the month following the In-Service Date; provided, however, in the
event the Daily Billing Option is selected on the applicable Schedule A, the
Scheduled Lease Commencement Date shall be the In-Service Date. "In-Service
Date" shall be the date Equipment is delivered and accepted by Lessee for lease
as provided herein. The "Scheduled Lease Term" shall be as set forth in the
applicable Schedule A. Rentals for each Item of Equipment shall commence on the
Scheduled Lease Commencement Date with respect to each Item of Equipment. If the
In-Service Date occurs prior to the Scheduled Lease Commencement Date, Lessor
shall be entitled to a rental ("Interim Rent") for the period from such
In-Service Date to the Scheduled Lease Commencement Date (the "Interim Period").
Interim Rent shall be computed by dividing all rentals other than Interim Rent
due under the Lease by the actual number of days in the Scheduled Lease Term and
multiplying this result by the actual number of days from In-Service Date to
Scheduled Lease Commencement Date. Interim Rent (if any) shall be due on the
Scheduled Lease Commencement Date. The Scheduled Lease Term, including any
Minimum Term as described in Paragraph 3 below, together with the Interim
Period, if any, and any renewal period(s) shall constitute the Lease Term
("Lease Term") for each Item of Equipment. Lessee agrees to pay Lessor at the
expiration or other termination of the Lease Term, additional rents, as
described in the Schedule A or any other document executed in connection with
this Lease. The termination of this Lease with respect to certain Items of
Equipment shall not affect the continuation of this Lease with respect to other
Items of Equipment not subject to such termination. Unless otherwise provided in
the event the Lessee exercises the option to renew the Lease, rentals for the
renewal period shall be agreed to by the parties at the time of renewal.
3. MINIMUM LEASE TERM. The Minimum Lease Term, if any, ("Minimum Term") shall be
set forth in the Schedule A for each Item of Equipment and shall commence on the
Scheduled Lease Commencement Date. If the Minimum Term is less than the
Scheduled Lease Term, upon completion of the Minimum Term, the Lessee is deemed
to have continued the Lease on a month-to-month basis, until completion of the
Scheduled Lease Term unless the Lessee notifies the Lessor in writing thirty
(30) days prior to the end of the Minimum Term that it desires to terminate the
Lease.
4. FLOATING RENTAL RATE. Notwithstanding any provision to the contrary contained
in Paragraph 2 above, if Floating Rate is specified on the Schedule A applicable
to an Item of Equipment, the Lessee's rental obligation for such Item of
Equipment shall be adjusted at each rental due date based on the index specified
on such Schedule A. Rental adjustments will be calculated based on monthly
changes in the index up or down. Monthly changes in the index and the
outstanding lease balance for each Item of Equipment will be used to compute an
adjusted rental amount. Rental adjustments will be compounded and accumulated
monthly and billed to the Lessee based on the Rental frequency specified on the
appropriate Schedule A.
5. LATE CHARGES. If Lessee fails to pay any rental or other amount required to
be paid by Lessee to Lessor, within five (5) days after the due date thereof,
Lessee shall (in addition to all other amounts due Lessor) pay Lessor the lesser
of one and one-half percent (1.5%) per month, or the maximum amount allowed by
law until paid on such unpaid amounts.
6. SECURITY DEPOSIT. If a Security Deposit amount is specified in the Schedule
A, Lessee agrees to pay such amount to Lessor prior to the Scheduled Lease
Commencement Date. If Lessee has fulfilled all terms and conditions herein, the
Security Deposit shall be returned to Lessee without interest or it may be
applied to any purchase option exercised by Lessee at the expiration of the
Lease.
7. NO WARRANTIES/LESSEE'S OBLIGATIONS (VENDOR NOT AN AGENT). LESSEE ACKNOWLEDGES
THAT: LESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT NOR THE MANUFACTURER'S
AGENT NOR A DEALER THEREIN; THE EQUIPMENT IS OF A SIZE, DESIGN, CAPACITY,
DESCRIPTION AND MANUFACTURE SELECTED BY LESSEE; LESSEE IS SATISFIED THAT THE
EQUIPMENT IS SUITABLE AND FIT FOR ITS PURPOSES; LESSOR HAS NOT MADE AND DOES NOT
MAKE ANY WARRANTY OR REPRESENTATION
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WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, CONDITION,
MERCHANTABILITY, DESIGN OR OPERATION OF THE EQUIPMENT, ITS FITNESS FOR ANY
PARTICULAR PURPOSE, THE QUALITY OR CAPACITY OF THE MATERIALS IN THE EQUIPMENT OR
WORKMANSHIP IN THE EQUIPMENT NOR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER; LESSOR SHALL NOT BE LIABLE TO LESSEE AND LESSEE HEREBY WAIVES ANY
CLAIM IT MAY HAVE AGAINST LESSOR FOR ANY LOSS, DAMAGE (CONSEQUENTIAL OR
OTHERWISE) OR EXPENSE CAUSED DIRECTLY OR INDIRECTLY BY THE EQUIPMENT LEASED
HEREUNDER. NO DEFECT OR UNFITNESS OF THE EQUIPMENT NOR ANY REPRESENTATION AS TO
THE EQUIPMENT OR ANY OTHER MATTER BY VENDOR SHALL RELIEVE LESSEE OF THE
OBLIGATION TO PAY ANY RENTALS OR PERFORM ANY OTHER OBLIGATION UNDER THIS LEASE.
LESSEE UNDERSTANDS AND AGREES THAT NEITHER VENDOR NOR ANY SALES REPRESENTATIVE
OR OTHER AGENT OF VENDOR, IS AN AGENT OF LESSOR. NO SALES REPRESENTATIVE OR
AGENT OF VENDOR IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS
LEASE. Lessor hereby assigns to Lessee for the duration of this Lease all
warranties received by Lessor with respect to the Equipment, to the extent
assignable, and Lessor shall have no obligation whatsoever to make any claim on
such warranty.
8. LOCATION/INSPECTION/MARKING. The Equipment at all times shall be located at
the address specified in the applicable Schedule A unless Lessee has notified
Lessor in writing of a change of location for each Item of Equipment and Lessor
consents to such change. Lessee shall make the Equipment available for
inspection by Lessor's representatives during Lessee's normal business hours and
shall make Lessee's log, maintenance and other records pertaining to the
Equipment available for inspection and duplication by Lessor's representatives.
Lessee shall affix to or place on the Equipment such labels, plates, or other
markings indicating Lessor's ownership in the Equipment as may be directed and
supplied by Lessor.
9. USE. Lessee agrees all Equipment will only be used in Lessee's trade or
business and will be operated by competent and qualified personnel only and in
accordance with applicable operating instructions, laws, government regulations,
and applicable insurance policies.
10. RISK OF LOSS/GENERAL INDEMNITY. Lessee hereby assumes the risk of bodily
injury or death, and of damage to property, including the Equipment, and the
loss of such property, from whatsoever cause during the Lease Term. Lessee shall
indemnify and hold Lessor harmless from and against any and all claims, losses,
liabilities (including patent infringement, negligence, tort and strict
liability), damages, judgments, suits, and all legal proceedings, and any and
all costs and expenses in connection therewith (including attorneys' fees)
arising out of or in any manner connected with the manufacture, sale, purchase,
financing, ownership, delivery, rejection, non-delivery, possession, use,
transportation, storage, condition, operation, maintenance, repair, return or
other disposition of the Equipment or with this Lease, including, without
limitation, claims for injury to or death of persons, for damage to property,
for violation of any law, rule or regulation of any public authority, and for
environmental damage and clean-up. Lessee shall give Lessor prompt notice of any
such claim or liability. The provisions of this Paragraph shall survive the
expiration or termination of this Lease. Lessee agrees that upon written notice
by Lessor of the assertion of any claim, action, damage, obligation, liability,
or lien, Lessee shall, at its own cost and expense, at Lessor's written request,
assume the full responsibility for the defense thereof. Any payment pursuant to
this Paragraph shall include an amount equal to any taxes required to be paid by
Lessor as a result of the receipt of such payment.
11. ALTERATIONS/REPAIRS/PERSONAL PROPERTY. Any improvement, replacement,
addition, accessory, or repair part for the Equipment shall become the property
of Lessor free of all liens and encumbrances and shall be deemed part of the
Equipment. The Equipment is, and shall at all times be and remain, personal
property, notwithstanding that any Item of Equipment or any part thereof shall
now be or hereafter become in any manner affixed or attached to real property or
any improvements thereof.
12. MAINTENANCE. Lessee shall pay all costs and expenses of whatever nature
resulting from the use and operation of each Item of Equipment. Lessee, at its
expense, shall keep the Equipment in good repair, condition and working order,
in full compliance with all applicable manufacturer's recommendations, ordinary
wear and tear excepted.
13. TAXES. Lessee shall pay when due and be responsible for all charges, taxes
and fees which may now or hereafter be imposed or levied by any governmental
body or agency required to be paid or collected by Lessor on or relating to the
Equipment leased hereunder and the sale, purchase, rental, operation,
maintenance or use thereof (excluding any taxes on or measured by the net income
of Lessor) together with any penalties or interest applicable thereto, whether
the same be payable by or assessed to Lessor or Lessee. If under law or custom
such payments may be made only by Lessor, Lessee shall promptly notify Lessor
and shall reimburse Lessor, upon demand, all such payments made by Lessor. Upon
request, Lessee will furnish to Lessor a photocopy of evidence satisfactory to
Lessor reflecting payment by Lessee. The provisions of this Paragraph shall
survive the expiration or termination of this Lease.
14. PERSONAL PROPERTY TAXES. Wherever equipment is subject to personal property
taxes in the jurisdiction where the Equipment is located, Lessor will properly
report any and all property values for all lease transactions with the
appropriate property tax assessor or other proper official. Lessee shall
reimburse Lessor for all personal property taxes
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assessed by the applicable taxing jurisdiction. If Lessor does not notify Lessee
of Lessor's intent to file the applicable property tax return within fourteen
(14) days of the personal property tax return due date, or if Lessee has made a
written request that Lessor not file such return, Lessee shall file all property
values with the appropriate taxing jurisdiction and assume full responsibility
for the payment of all such taxes, assessments, penalties and interest when due.
Lessee shall also reimburse Lessor any costs and expenses incurred by Lessor
(including reasonable attorneys' fees), as a result of Lessee's failure to
report and pay such taxes and charges. The provisions of this Paragraph shall
survive the expiration or termination of this Lease.
15. INSURANCE. Lessee shall at its own expense acquire and maintain, during the
term hereof, with such insurers, in such form and under such policies as shall
be satisfactory to Lessor, both:
a) all risk property insurance, naming Lessor as loss payee, in amounts and
under coverages to provide for rebuilding, repairing or replacing the Equipment
in the event of any damage, destruction, loss or theft of the Equipment. The
amount of such insurance shall be at least equal to the Equipment Cost described
in the Schedule A for each Item of Equipment; and
b) general comprehensive public liability insurance including coverage for
any bodily injury, death, or property damage which may be caused by or related
to the Equipment or its operation, in amounts satisfactory to Lessor. Such
insurance shall name Lessor as an additional insured.
If any loss occurs it shall be paid by check or draft payable to Lessor. Lessor
may endorse Lessee's name thereon as Lessee's agent. Lessee shall furnish to
Lessor a certificate of insurance indicating that such insurance coverages are
in effect at the time the Equipment is delivered and shall deliver to Lessor,
prior to the scheduled expiration or lapse of such insurance coverage evidence
satisfactory to Lessor of renewal or replacement coverage. Each insurer shall
agree, by endorsement that, (i) such insurance cannot be canceled or altered
without at least thirty (30) days prior written notice to Lessor, and (ii)
insurance as to the interest of any named additional insured or loss payee other
than Lessee shall not be invalidated by any actions, inactions , breach of
warranty or conditions or negligence of Lessee or any other person other than
Lessor with respect to such policy or policies. If Lessee fails to pay insurance
required to be provided by Lessee under this Lease, Lessor may, but is not
obligated to provide such insurance. Lessee shall, upon demand reimburse Lessor
for any costs, fees, or expenses incurred in providing such insurance.
16. CASUALTY OCCURRENCE.
a) For purposes of this Lease, a "Casualty Occurrence" shall mean any Item
of Equipment destroyed, irreparably damaged, lost, stolen, unaccounted for, or
taken or requisitioned by condemnation or otherwise during the term of this
Lease.
b) In the event that any Item of Equipment shall suffer a Casualty
Occurrence, Lessee shall promptly and fully inform Lessor with respect thereto.
Lessee shall pay to Lessor, on the first day of the month following the giving
of such notice, an amount ("Casualty Loss Value") equal to the sum of: (i) the
amount which will cause the Lessor to realize the same rate of return up to the
date of the Casualty Occurrence that the Lessor would have realized had the
Lease of the Equipment been in effect for the entire Lease Term; and (ii) all
installments of rental then due with respect to that Item of Equipment. The
total rental described in the Schedule A which contained an Item of Equipment
for which a Casualty Loss Value was paid, shall be reduced by a percentage
derived by dividing the Cost of the Item of Equipment experiencing the Casualty
Occurrence by the Total Equipment Cost described in such Schedule A. Lessor
shall be entitled to receive and retain any proceeds from any insurance with
respect to such Item of Equipment up to the amount of the Casualty Loss Value.
Provided an Event of Default has not occurred and is continuing, Lessor shall
pay over such insurance proceeds to Lessee to the extent such amounts exceed the
Casualty Loss Value or the entire insurance proceeds received if Lessee has
previously paid the Lessor the Casualty Loss Value. Upon Lessor's receipt of
such payment, Lessee shall be entitled to whatever interest Lessor may have in
said Item of Equipment, in its then condition and location, without warranties,
express or implied, and this Lease shall terminate with respect to such Item of
Equipment.
17. LOSS AND DAMAGE. No loss, theft, damage, or destruction of Equipment shall
relieve Lessee of the obligation to pay rent or perform any other obligation
under this Lease. In the event of damage to any Item of Equipment which does not
constitute a Casualty Occurrence, Lessee shall at its sole cost and expense
immediately repair and restore such Item of Equipment to the condition required
by this Lease. Upon receipt of evidence reasonably satisfactory to Lessor of
completion of such repairs, Lessor will apply any insurance proceeds received by
Lessor on account of such loss to the cost of repairs..
18. EVENTS OF DEFAULT. The following shall constitute Events of Default:
a) Lessee shall fail to pay all or any part of a rental payment or any
other payment when due and payable; or
b) Lessee shall fail to perform or shall breach any of the other covenants
herein and shall continue to fail to observe or perform the same for a period of
ten (10) days after written notice thereof by Lessor; or
c) Without Lessor's consent, Lessee removes, sells, transfers, assigns,
parts with possession, or sublets any Item of Equipment; or
d) Lessee creates, incurs, or suffers to exist any mortgage, lien, or other
encumbrance or attachment of any kind whatsoever upon or affecting the Equipment
or this Lease or any of Lessor's interests thereunder; or
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e) Lessee becomes insolvent, makes an assignment for the benefit of
creditors, ceases or suspends its business, admits in writing its inability to
pay its debts as they mature; or bankruptcy, reorganization or other proceedings
for the relief of debtors or benefit of creditors shall be instituted by or
against Lessee; or
f) Any representation or warranty made by Lessee herein or in any document
or certificate furnished to Lessor proves to be incorrect in any material
respect when made; or
g) Lessee terminates its existence, changes its legal or organizational
status, consolidates with, merges into, or conveys or leases substantially all
of its assets as an entirety to any person; or
h) Lessee shall be in default under any other agreement executed with
Lessor at any time; or
i) Lessee shall be in default under any material obligation for the payment
of borrowed money, for the deferred purchase price of property or any payment
under any lease agreement.
The occurrence of an Event of Default with respect to any Schedule A shall, at
the sole discretion of Lessor, constitute an Event of Default with respect to
any or all Schedule As to which Lessor is then a party. Notwithstanding the
foregoing, Lessor may exercise all rights and remedies independently with
respect to each Schedule A.
In this Paragraph 18, "Lessee" also means any guarantor of Lessee's obligations
under the Lease and "Lease" also means any guaranty of those obligations.
19. REMEDIES UPON DEFAULT. Upon the occurrence of any Event of Default and at
any time thereafter, Lessor may do any one or more of the following with or
without terminating this Lease:
a) Declare the entire amount of rental and other charges due and to become
due hereunder for the entire Lease Term immediately due and payable;
b) Take immediate possession of any and all Equipment without notice;
c) Sell or lease any Equipment or otherwise dispose, hold, or use such
Equipment at Lessor's sole discretion;
d) Demand payment of all costs incurred by Lessor in the course of
correcting any default (including attorneys' fees and costs as described in
Paragraph 28 herein);
e) Proceed against any or all security given in connection herewith which
includes but is not limited to sureties and guarantors;
f) Upon notice to Lessee, cancel this Lease and any or all Schedules
executed pursuant hereto. Any cancellation or any termination hereunder shall
only occur upon such notice by Lessor and only as to such Items of Equipment
included in such notice. This Lease shall continue in full force and effect as
to the remaining Items of Equipment, if any;
g) Exercise any other right or remedy available to Lessor under the Uniform
Commercial Code ("UCC") or any other applicable law. If this Lease is deemed at
any time to be one intended as security or otherwise, Lessee agrees that the
Equipment shall secure all amounts whatsoever owing by Lessee to Lessor;
h) Recover from Lessee, not as a penalty but as liquidated damages, an
amount equal to the sum of: (i) any accrued and unpaid rentals as of the date
the Lessor obtains possession of the Equipment following Lessee's default
("Repossession Date"); plus (ii) the present value of all future rentals
reserved in the Lease and contracted to be paid over the unexpired term of the
Lease discounted at a rate equal to the six (6) month U.S. Treasury Xxxx rate as
of the Repossession Date; plus (iii) all costs and expenses incurred by Lessor
in any repossession, recovery, storage, repair, sale, re-lease or other
disposition of the Equipment including reasonable attorney's fees and costs
incurred in connection with or otherwise resulting from the Lessee's default;
plus (iv) the present value of the estimated residual value of the Equipment as
of the expiration of the Lease; discounted at a rate equal to the six (6) month
U.S. Treasury Xxxx Rate as of the Repossession Date; LESS the amount received by
Lessor upon sale or re-lease of such Items of Equipment, if any.
Notwithstanding Paragraph 19(h) above, Lessor and Lessee agree that in the event
it is adjudged or otherwise determined that following an Event of Default,
Lessor is entitled to the present value of any damages owed to Lessor, the
discount rate shall be equal to the six (6) month U.S. Treasury Xxxx rate in
effect at the time the Event of Default occurred. Lessor's rights and remedies
provided hereunder or by law shall be cumulative and shall be in addition to all
other rights and remedies available to Lessor. Lessor's failure to strictly
enforce any provisions of this Lease or any other right available to Lessor
shall not be construed as a waiver thereof or as excusing Lessee from future
performance.
With respect to any exercise by Lessor of its right to recover and/or dispose of
any Equipment or other Collateral (as such term is defined in Paragraph 25
herein) securing Lessee's obligations hereunder, Lessee acknowledges and agrees
as follows: (i) Lessor shall have no obligations, subject to the requirements of
commercial reasonableness, to clean-up or otherwise prepare the Equipment or any
other Collateral for disposition, (ii) Lessor may comply with any applicable
state or Federal law requirements in connection with any disposition of the
Equipment or other Collateral, and any actions taken in connection therewith
shall not be deemed to have adversely affected the commercial reasonableness of
any disposition of such Equipment and/or other Collateral, and (iii) Lessor may
sell the Equipment or Collateral at public or private sale at which Lessor may
purchase the Equipment or Collateral for its own account and apply the net
proceeds (after deducting all reasonable expenses of Lessor) to amounts owed to
Lessor after an Event of Default with Lessee remaining liable for any
deficiency.
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20. ASSIGNMENT/SUBLEASE.
a) LESSEE SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY PART OF ITS
RIGHTS OR OBLIGATIONS UNDER THIS LEASE OR ENTER INTO ANY SUBLEASE OF ALL OR ANY
PART OF THE EQUIPMENT WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. ANY ATTEMPTED
ASSIGNMENT BY LESSEE WITHOUT SUCH CONSENT SHALL BE NULL AND VOID AND SHALL BE AN
EVENT OF DEFAULT UNDER THIS LEASE. No sale, assignment or sublease, whether
authorized in this Lease or in violation of the terms hereof, shall relieve
lessee of its obligations, and Lessee shall remain primarily liable hereunder.
b) Lessor shall have the right, without notice to Lessee, to assign or
create a security interest in this Lease, or assign any of its rights or
interests in this Lease, or in the Equipment. If Lessee is given notice of such
assignment or security interest, Lessee shall acknowledge such assignment or
security interest in writing upon terms satisfactory to Lessor. Upon written
notice to Lessee from Lessor of any assignment or of any security interest
created by Lessor hereunder, Lessee shall pay rentals directly to such assignee
if directed by Lessor to do so. Lessee agrees to confirm in writing receipt of
any notice of assignment, syndication, participation or placement, as reasonably
may be requested by Lessor or any such assignee or participant (collectively,
the "Assignee"). Lessee hereby waives and agrees not to assert against any such
Assignee any defense, setoff, recoupment, claim or counterclaim which Lessee has
or may at any time hereinafter have against Lessor or any person other than such
Assignee, for any reason whatsoever. Lessee will provide reasonable assistance
to Lessor in whatever manner necessary in order to permit Lessor to complete any
resale, syndication, assignment, participation or placement of the transaction
contemplated by this Lease. Upon such assignment and except as may otherwise be
provided therein all references in this Lease to Lessor shall include such
Assignee. Lessee acknowledges that any assignment or transfer by Lessor shall
not materially change Lessee's duties or obligations under this Lease nor
materially increase the burdens or risks imposed on Lessee.
21. OWNERSHIP. Title to the Equipment shall remain with Lessor at all times and
Lessee shall have no right, title, or interest therein except as expressly set
forth in this Lease.
22. RETURN OF EQUIPMENT. If Lessee does not exercise any purchase option
provided in this Lease, at the expiration of the Lease Term or other termination
of this Lease, Lessee shall, at its own expense, deliver the Equipment to such
location as may be designated by Lessor. The Equipment shall be delivered by
Lessee to Lessor in the same condition as it was when delivered to Lessee,
normal wear and tear excepted. Lessor and Lessee agree that, notwithstanding
terms contained in the Lease to the contrary, the Lease Term shall not expire
until the Equipment is returned to Lessor as provided in this Paragraph. In
addition to Lessor's other rights and remedies, if the Equipment is not returned
in a timely fashion, or if repairs are necessary to place any Item of Equipment
in the condition required under this Lease, Lessee shall continue to pay to
Lessor per diem rent at the last prevailing rate under the applicable Schedule A
with respect to such Item of Equipment, for the period of delay in redelivery,
or for the period of time reasonably necessary to accomplish such repairs, as
applicable. Lessor's acceptance of such rent on account of such delay or repair
does not constitute a renewal of the term of the related Equipment or Schedule A
or a waiver of Lessor's right to prompt return of the Equipment in proper
condition.
23. LESSEE'S OPTIONS. So long as all amounts due Lessor have been paid and no
Event of Default has occurred and is continuing, Lessee may, upon at least sixty
(60) days advance written notice to Lessor, have the option at the expiration of
the Minimum Term to: (i) purchase the Equipment at fair market value; (ii)
continue the Lease as provided in Paragraph 3 of this Lease; or (iii) return the
Equipment to Lessor as provided in Paragraph 22 herein. So long as all amounts
due Lessor have been paid and no Event of Default has occurred and is
continuing, Lessee may, upon at least sixty (60) days advance written notice to
Lessor, have the option at the expiration of the Scheduled Lease Term to: (i)
purchase the Equipment at the Purchase Option Amount specified on the applicable
Schedule A or if no such amount is specified, at fair market value; (ii) renew
the Lease as provided in Paragraph 2 herein; or (iii) return the Equipment to
Lessor as provided in Paragraph 22 herein. As used in this Paragraph 23,
Equipment shall mean all, but not less than all, of the Equipment described in
any Schedule A.
24. NOTICES.
a) Any requirement of the UCC or other applicable statute of reasonable
notice shall be met if such notice is given at least ten (10) days before the
time of sale, disposition, or other event or thing giving rise to the
requirement of notice.
b) All notices or communications hereunder shall be in writing, personally
delivered, delivered by overnight courier service, sent by facsimile or other
electronic transmission (with confirmation of receipt), or sent by certified
mail, return receipt requested, addressed to the other party at its respective
address stated below the signature of such party or at such other address as
such party shall from time to time designate in writing to the other party, and
shall be effective from the date of receipt.
c) Lessor and Lessee may in writing at any time, and from time to time,
change the address to which notice shall be delivered or mailed.
25. FURTHER ASSURANCES/FINANCING STATEMENTS/SECURITY INTEREST. Lessee will
promptly execute, or otherwise authenticate, and deliver to Lessor such further
documents, instruments, assurances and other records, and take such further
action as Lessor may from time to time reasonably request in order to carry out
the intent and purpose of this
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Lease and to establish and protect the rights and remedies created or intended
to be created in favor of Lessor under this Lease (including, without limitation
(i) lien searches, (ii) certificates of title, and (iii) such UCC financing
statements, fixture filings and waivers as reasonably may be required by Lessor
in connection with any Item of Equipment, any change in circumstances relating
to Lessee, or otherwise); provided, however, Lessee hereby authorizes Lessor to
file any and all of the same without Lessee's authentication, to the extent
permitted by applicable law. Lessee shall provide written notice to Lessor not
less than thirty (30) days prior to any contemplated change in the name, the
jurisdiction of organization, or address of the chief executive office, of
Lessee and Lessee shall pay to Lessor all costs incurred by Lessor including
reasonable attorneys' fees, to prepare and file any documents, including UCC
financing statements, relating to any such change. In order to secure the prompt
payment of the rentals and all of the other amounts from time to time
outstanding under and with respect to this Lease, and the performance and
observance by Lessee of all the agreements, covenants and provisions hereof, or
in the event this Lease should be construed as a lease intended as security, or
otherwise, Lessee hereby grants to Lessor a first priority security interest in
the Equipment together with, all additions, attachments, accessories and
accessions thereto whether or not furnished by the supplier of the Equipment any
intangibles, including software, all security deposits, and any and all
substitutions, replacements or changes for any Item of Equipment, any other
property against which a security interest is granted by Lessee to Lessor
(collectively, the "Collateral"), and any and all insurance and/or other
proceeds of the Equipment and the Collateral and in such event Lessor shall have
all of the rights and remedies of a secured party under the UCC.
26. NON-CANCELABLE LEASE/OBLIGATIONS UNCONDITIONAL/ WAIVER. THIS LEASE CANNOT BE
CANCELLED OR TERMINATED EXCEPT AS EXPRESSLY PROVIDED HEREIN. LESSEE HEREBY
AGREES THAT LESSEE'S OBLIGATION TO PAY ALL RENTALS AND PERFORM ALL OTHER
OBLIGATIONS HEREUNDER SHALL BE ABSOLUTE, IRREVOCABLE, UNCONDITIONAL AND
INDEPENDENT AND SHALL BE PAID AND PERFORMED WITHOUT ABATEMENT; DEDUCTION OR
OFFSET OF ANY KIND OR NATURE WHATSOEVER. To the extent permitted by applicable
law, Lessee also hereby waives any rights now or hereafter conferred by statute
or otherwise which may require Lessor to sell, lease or otherwise use any
Equipment in mitigation of Lessor's damages as set forth in Paragraph 19 or
which may otherwise limit or modify any of Lessor's rights or remedies under
Paragraph 19. Any action by Lessee against Lessor for any default by Lessor
under this Lease, including breach of warranty or indemnity, shall be commenced
within one (1) year after any such cause of action accrues.
27. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents and warrants
that: (i) Lessee is duly organized, validly existing and in good standing under
the laws of the jurisdiction specified below the signature of Lessee, and the
organizational number assigned to Lessee by such jurisdiction, if any, is as
specified below the Lessee's signature; (ii) Lessee's full and accurate legal
name is as first provided above; (iii) Lessee is duly qualified to do business
wherever necessary to carry on its present business and operations; (iv) Lessee
has full power, authority and legal right to enter into and perform this Lease
and the execution, delivery and performance of such documents have been duly
authorized, do not require the approval of any governmental body, will not
violate any judgment, order, law or regulation applicable to Lessee or any
provision of Lessee's certificate of incorporation or bylaws, if any, or
constitute a default under, or result in the creation of any lien, charge,
encumbrance or security interest upon any assets of the Lessee under any
agreement or instrument to which Lessee is a party or by which Lessee or its
assets may be bound or affected; (v) this Lease and all schedules and
attachments shall have been duly entered into, delivered and shall constitute,
legal, valid and binding obligations of Lessee, enforceable in accordance with
their terms when executed by Lessor and Lessee; (vi) there are no pending or
threatened actions or proceedings to which Lessee is a party, and there are no
threatened actions or proceedings of which Lessee has knowledge which either
individually or in the aggregate would have a material adverse effect on the
business or operations of Lessee.
28. ATTORNEYS' FEES AND COSTS. Lessee acknowledges that Lessee shall be liable
for all reasonable attorneys' and other legal fees (including consultation,
drafting documents, sending notices or instituting, prosecuting or defending
litigation or arbitration) and other enforcement costs and expenses (including
court costs and other related litigation costs) incurred by reason of any
default, Event of Default, the exercise of Lessor's rights or remedies, Lessor's
enforcement or defense of any other provisions of this Lease, including all
expenses incurred in connection with the return or other recovery of any
Equipment or other Collateral, the sale, re-lease or other disposition thereof
(including but not limited to costs of transportation, possession, storage,
refurbishing, advertising and brokers' fees) and all other pre-judgment and
post-judgment enforcement related actions taken by Lessor, and/or any actions
taken by Lessor in any bankruptcy case involving Lessee, the Equipment or any
other Collateral.
29. FINANCIAL STATEMENTS. Lessee shall promptly furnish Lessor with Lessee's
annual certified financial statements. Lessee shall also furnish Lessor with
other financial information as Lessor may reasonably request. If Lessee does not
have certified financial statements available in the normal course of business,
Lessee shall provide uncertified financial statements that accurately reflect
Lessee's financial condition including copies of its most recent federal income
tax returns.
30. ENFORCEABILITY/CAPTIONS.
a) If any part, term, or provision of this Lease is held by any court to be
unenforceable or prohibited by law, the rights and obligations of the parties
shall be construed and enforced with that part, term, or provision limited so as
to make it
B-7
enforceable to the greatest extent allowed by law, or if it is totally
unenforceable, as if this Lease did not contain that particular part, term, or
provision.
b) This Lease shall not be effective unless and until accepted by execution
by Lessor at the address as set forth below the signature of Lessor.
c) This Lease shall inure to the benefit of Lessor, its successors, and
assigns, and all obligations of Lessee shall bind its permitted successors and
assigns.
d) The headings in this Lease have been included for ease of reference only
and shall not be considered in the construction or interpretation of this Lease.
31. CONSTRUCTION/JURISDICTION. THIS LEASE AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER, SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF MINNESOTA (WITHOUT REGARD TO
THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE
EQUIPMENT. Lessee hereby irrevocably submits and consents to the jurisdiction
and venue of the state and federal courts located in Minnesota for purposes of
resolving all disputes of any nature whatsoever regarding the Lease, or any
transaction contemplated hereby, and Lessee hereby irrevocably waives any
objection which it may now or hereafter have to the laying of jurisdiction or
venue in the federal or state courts of Minnesota. Lessor and Lessee agree that
a summons and complaint commencing an action or proceeding in any such court
shall be properly served and shall confirm personal jurisdiction by mailing a
copy thereof, by registered mail, postage prepaid, to such party at its address
designated pursuant to this Lease, or as otherwise provided under the respective
rules of the state or federal courts of Minnesota. Lessee agrees that any suit
to enforce any claim arising out of the Lease or any course of conduct or
dealing of Lessor shall be brought and maintained exclusively in any Minnesota
state or federal court. Nothing herein shall affect the right of Lessor to bring
any action or proceeding against Lessee in the courts of any other jurisdiction.
32. WAIVER OF JURY TRIAL. LESSEE AND LESSOR HEREBY IRREVOCABLY WAIVE THE RIGHT
TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT
IN ANY ACTION OR PROCEEDING TO WHICH LESSEE AND/OR LESSOR MAY BE A PARTY ON ANY
MATTER WHATSOEVER BASED UPON, ARISING OUT OF, OR IN ANY WAY PERTAINING OR
RELATED TO, OR CONNECTED WITH, THIS LEASE OR ANY OTHER AGREEMENT OR INSTRUMENT
EXECUTED IN CONNECTION HEREWITH OR ANY OBLIGATIONS HEREUNDER OR THEREUNDER. THIS
WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY LESSEE AND LESSOR, WHO
ACKNOWLEDGE THAT NO REPRESENTATIONS HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE
THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. THIS
WAIVER SHALL APPLY TO ANY AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS LEASE OR SUCH OTHER AGREEMENTS OR INSTRUMENTS.
33. FAIR MARKET VALUE. "Fair market value," as to each Item of Equipment for all
purposes in connection with this Lease, shall have the meaning and shall be
determined in accordance with the procedure set forth in this Paragraph 33. Fair
market value shall be determined on the basis of, and be equal in amount to, the
value which would be obtained in an arm's length transaction between an informed
and willing buyer-user (other than a lessee currently in possession or a used
equipment dealer) under no compulsion to buy, and an informed and willing seller
under no compulsion to sell, and, in such determination, costs or removal from
the location of current use shall not be a deduction from such value.
In the event Lessor and Lessee shall be unable to agree upon the fair market
value of an Item of Equipment, a determination of fair market value shall be
made under the provisions of this Paragraph 33. The party requesting such
determination shall deliver a written notice to the other party so indicating
and appointing an appraiser selected by the requesting party to determine the
fair market value. Within fifteen (15) days after the receipt of such written
notice the party receiving such notice shall deliver to the requesting party a
written notice appointing an appraiser of its selection to make such
determination. The two appraisers appointed in such written notices shall meet
promptly to determine the fair market value of such Item of Equipment as of the
applicable date. If within thirty (30) days after the initial written notice the
two appraisers so appointed by Lessor and Lessee shall be unable to agree upon
the fair market value of such Item of Equipment, such appraisers shall within
five (5) days thereafter appoint a third appraiser. The decision of the three
appraisers so appointed shall be given within a period of ten (10) days after
the appointment of such third appraiser. Any decision in which any two
appraisers so appointed and acting hereunder concur shall in all cases be
binding and conclusive upon Lessor and Lessee. The fees and expenses of the
appraisers shall be borne equally by Lessee and Lessor, unless the Lease shall
have been terminated pursuant to Paragraph 19, hereof, in which case Lessee
shall pay all such fees and expenses.
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FARM CREDIT LEASING
1600 Colonnade
0000 Xxxxxxx XXXX
Xxxxxxxxxxx Xx 00000-0000
Schedule A
Contract Number: 001-6092228
This Schedule A, when executed by both Lessee and Lessor shall be made a part of
that Lease Agreement dated March 6, 2002 ("Lease"), between Lessee and Lessor.
Lessee:
Dakota Growers Pasta Company
--------------------------------------------------------------------------------
( Print or Type Full Name)
By:
--------------------------------------------------------------------------------
Signature Date
---------------------------------------------------------------------
Title (if Applicable)
By:
--------------------------------------------------------------------------------
Signature Date
1600 Colonnade
0000 Xxxxxxx XXXX
Xxxxxxxxxxx, XX 00000-0000
Lessor:
Farm Credit Leasing Services Corporation
By:
---------------------------------------------------------------------
Signature
---------------------------------------------------------------------
Title
---------------------------------------------------------------------
Date
1
----------------------------------- ------------------------------------------------------- --------------------- -----------------
Lessee Xxxxxxx Xxxxxxx Xxxx, Xx, Xxx Xxxx, Xxxxxx Contact Phone
----------------------------------- ------------------------------------------------------- --------------------- -----------------
Xxx Xxxxx Xxxxxx Xxxxxxxxxx, XX 00000 Xxxxxx Xx Xxxxx 701-652-2855
----------------------------------- ------------------------------------------------------- --------------------- -----------------
Vendor Name Address, City, St, Zip Code Contact Phone
----------------------------------- ------------------------------------------------------- --------------------- -----------------
----------------------------------- ------------------------------------------------------- --------------------- -----------------
EQUIPMENT
------------ ------ --------- -------------------------------------------------------------------- --------------- ----------------
Fixed Purchase
Asset New/ MACRS Quantity/Year/Manufacturer/Model/Description/Serial Number Equipment Cost Option or TRA
ID No. Used Life amount by
asset if
applicable
--------- ------ --------- ------------------------------------------------------------------------ --------------- ----------------
274602 Used Two (2) Braibanti Long Goods Pasta Production Lines further described $5,000,000.00 $1,750,000.00
on the attached Exhibit A.
--------- ------ --------- ------------------------------------------------------------------------ --------------- ----------------
--------- ------ --------- ------------------------------------------------------------------------ --------------- ----------------
--------- ------ --------- ------------------------------------------------------------------------ --------------- ----------------
--------- ------ --------- ------------------------------------------------------------------------ --------------- ----------------
TOTAL NET EQUIPMENT COST (list sales tax separately, if applicable) $5,000,000.00
--------------------------------------------------------------------------------------------------- --------------- ----------------
----------------------------- ---------------------------------- ---------------------- --------------------------------------------
Down Payment: Refund Lessee? / / $ n/a Trade in: Refund Lessee? / / $ n/a
Purchase Option Type: / / FPO / / FMV / / TRA / / Other Purchase Option Cap: n/a
Transportation Addendum / / Yes /X/ No Addendum Date: Tax Indemnity Applies: / / Yes /X/ No Addendum Date:
Applies:
Federal Income Tax Exempt: / / Yes /X/ No Why? Sales Tax Exempt: / / Yes /X/ No If yes, Tax ID#:
If no, FCL to capitalize tax: / / Yes /X/No
----------------------------- ---------------------------------- ---------------------- ------------------------------------------
FCL USE ONLY
------------ ------------- ----------- ------------ ----------- -------------- -------------- -------------- ---------------------
FCPR FC DC Estimate Basis OF Promotion In-Service Term Expires Authorization Number
/ / Yes /X/ No Date
3/31/02
------------ ------------- ----------- ------------ ----------- -------------- -------------- -------------- ---------------------
2
EQUIPMENT LOCATION
Same as Lessee Mailing Address /X/
--------------- ---------------------------------------------------------- --------------------- ------- ------------ --------------
Asset ID Xx. Xxxxxxx/Xxxxxx Xxxxxxx/Xxxxx Xxxxx (Xx X.X. Xxx) Xxxx Xxxxx Zip Code County
--------------- ---------------------------------------------------------- --------------------- ------- ------------ --------------
--------------- ---------------------------------------------------------- --------------------- ------- ------------ --------------
--------------- ---------------------------------------------------------- --------------------- ------- ------------ --------------
--------------- ---------------------------------------------------------- --------------------- ------- ------------ --------------
--------------- ---------------------------------------------------------- --------------------- ------- ------------ --------------
LEASE PRICING
-----------------------------------------------------------------------------------------------------------------------------------
Lease Rate Scheduled Lease Minimum Lease Rental amount * Rentals Rental Total Number
Factor Term Term (Detail irregular rents (advanced or Frequency of Rentals
below) arrears)
-----------------------------------------------------------------------------------------------------------------------------------
.01439 60 Months 60 Months $ 71,949.94 Advance Monthly 60
-----------------------------------------------------------------------------------------------------------------------------------
Irregular Rent Detail*: / / Not Applicable
Mo/Yr $Payment Amount Mo/Yr $Payment Amount Mo/Yr $Payment Amount Mo/Yr $Payment Amount
-----------------------------------------------------------------------------------------------------------------------------------
1. $ 4. $ 7. $ 10. $
-----------------------------------------------------------------------------------------------------------------------------------
2. $ 5. $ 8. $ 11. $
-----------------------------------------------------------------------------------------------------------------------------------
3. $ 6. $ 9. $ 12. $
-----------------------------------------------------------------------------------------------------------------------------------
Daily Billing Option Floating Rate, indexed to 90-day Farm Credit Lessee Maximum Percentage for purposes of Terminal
/ / Yes / / No Discount Note / / Yes / / No Rental Adjustment % / / Not Applicable
-----------------------------------------------------------------------------------------------------------------------------------
Security Deposit Lessee Percentage for Purposes of Lease
$ / / Not Applicable Purchase Addendum % / / Not Applicable *Exclusive of applicable sales tax.
-----------------------------------------------------------------------------------------------------------------------------------
COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
3
