EXHIBIT 10.2
Vendor Provides Credit Application Only; Vendor has
No Documentation or Credit Evaluation Responsibility
Xxxxxxx Financial Corporation
VENDOR ACREEMENT
This Vendor Agreement is entited into as of the 20th day of Nov., 1996
by and between Xxxxxxx Financial Corporation ("FFC") and Tasty Fries, Inc.
("Vendor") and sets forth the terms and conditions which will apply to any
leases, installment sale contracts or other chattel paper that FFC may elect to
purchase from Vendor or to otherwise fund.
1. DEFINITIONS. The following terms, wherever used in this Agreement, have
the meanings ascribed to them in this section:
(a) "Advance Payments" shall mean any payment made to Vendor
subsequent to execution and delivery of the Contract but prior
to written confirmation from Lessee of Delivery and Acceptance
of Collateral.
(b) "Contract" means either (i) a non-cancelable full pay-out
lease or rental agreement arising out of a lease or rental of
Equipment or (ii) an installment sale contract or other
chattel paper arising out of a sale of equipment.
(c) "Equipment" means any tangible or intangible personal property
sold or leased by Vendor under a Contract, together with all
additions, replacements. substitutions, parts, repairs,
accessories, accessions or attachments thereto. ("Equipment"
as used herein shall include all financed property, including
but not limited to, Software (as defined herein) and other
intangible property.)
(d) "Lessee" means that party (as well as guarantor if any) who is
obligated to pay under a Contract.
(e) "Lessee Default" means: (i) failure of a Lessee under any
Contract to make a Payment within ninety (90) days of the due
date of that Payment; (ii) failure of any Lessee to perform
any of its material obligations under any Contract; (iii)
insolvency of any Lessee, inability of any Lessee to pay its
debts as they mature, the making by any Lessee of an
assignment for the benefit of creditors, or institution of any
proceeding by or against any Lessee alleging that the Lessee
is insolvent or unable to pay its debts as they mature.
(f) "Obligor Guaranty" means any guaranty given by any person or
entity guaranteeing the payment and/or performance of a
Contract purchased by FFC.
(g) "Payment" means any payment, whether or not earned by
performance, receivable by FFC on account of a Contract
funded by FFC.
2. DOCUMENTATLON. Vendor may submit to FFC a Credit Application for a
prospective Contract. If FFC for any reason declines to proceed, it
shall so notify Vendor as soon as is practicable. If FFC approves the
transaction, it shall provide a completed Contract and completed
supporting documents necessary to fulfill the transaction. Said
Contract and Documents shall be forwarded to the Vendor or Lessee as
the parties from time to time determine.
3. REPRESENTATION AND WARRANTIES. Vendor represents and warrants that
(each representation and warranty shall be considered as having been
made concurrently with each sale of a Contract to FFC as an inducement
to purchase the Contract);
(a) Vendor is a corporation duly organized, validly existing and
in good standing under the laws of the state or province of
its incorporation, duly qualified and in good standing as a
domestic or foreign corporation authorized to do business in
each jurisdiction where such qualification is necessary.
(b) Vendor is duly authorized to execute and deliver this
Agreement.
(c) During the term of any Contract, Vendor agrees that it may
enhance, but will not seek or attempt to displace, or displace
Lessee's Equipment or any other product.
4. ELIGIBILITY REQUIREMENTS. In order for a Contract to be an Eligible
Contract, all of the following must be true and correct:
(a) The Contract arises from a bona fide lease, rental or sale of
the Equipment described in the Contract; the Equipment is in
all respects in accord with the requirements of the Contract
and has been delivered to and unqualifiedly accepted by the
lessee or vendee thereunder; none of the Equipment is or will
be a fixture under the laws of any jurisdiction where the
Equipment is or may be located;
(b) The Equipment subject to the proposed lease is in compliance
with all applicable laws and regulations. The Equipment which
is the subject of the Lease are not subject to any lien, claim
or security interest except the interest of the Lessee or
Vendee of the Equipment and a lien on the Equipment in FFC's
favor; and the Contract is one which FFC is and will continue
to be authorized by law to purchase and hold;
(c) At the time of FFC's funding of the Contract, Vendor had good
title to the related Equipment, subject only to the interest
of the Lessee;
(d) There exists no setoffs, counterclaims or defenses on the part
of any Lessee under the Contract or any Lessee Guaranty which
may be raised against FFC;
5. COVENANTS. Until the termination of this Agreement and for as long as
any Contract purchased hereunder is unpaid, Vendor agrees that it will
notify FFC promptly upon Vendor's learning of (i) any change in the
name of the vendee or lessee under any
Contract entered into by FFC; (ii) any adverse credit information which
Vendor may acquire or have knowledge of with respect to any Lessee of
any Contract funded by FFC; (iii) any and all litigation or other
matters or events concerning Vendor or any Obligor which might
reasonably be construed to affect adversely FFC's interest in a
Contract, Payments under the Contract or related Equipment or Software
or any of FFC's rights under this Agreement. Notwithstanding anything
to the contrary, Xxxxxxx shall be entitled to a right of first refusal
("ROF") during the term of this Vender Agreement and for one year
thereafter in the event of termination under paragraph 7. Accordingly,
if within that tune. Vendor secures alternative lease service, or
elects to provide an alternative lease service ("ALS"), then Xxxxxxx
shall have 45 days to match the written verified terms of the ALS. FFC
shall remit funds due to the vendor under the Contract within three
business day upon receipt of all properly executed Contract and lease
documents, and upon oral confirmation of delivery and acceptance by the
lessee/licensee. "Acknowledgment by the Lessee of delivery and
acceptance of Vendor's product" shall be defined as the written
execution by an authorized and designated officer of Lessee, at the
designated portion of Xxxxxxx'x Lease, confirming delivery and
acceptance of the Vendor's product and shall be referred to as
"Acknowledgment". In the event Xxxxxxx makes an "Advance Payment" to
Vendor under terms outlined in and Advance Payment Rider ("APR"), for
each Contract, and the written confirmation from Lessee of Delivery and
Acceptance is not received by Xxxxxxx within sixty (60) days ofthe
payment (or as otherwise stated in the APR), then upon rcquest by
Xxxxxxx, all Payments therefore made by Xxxxxxx to Vendor shall
immediately become due and owing from the Vendor, including interest on
the daily outstanding balance at an annualized rate equal to the Prime
Rate plus 2%. In the event of a dispute, the parties stipulate that
venue and jurisdiction shall be fixed in DuPage County, Illinois.
6. COLLECTIONS. If, Vendor receives a Payment on account of a Contract
funded by FFC, Vendor agrees to hold the amount in trust for FFC and
immediately forward the Payment to FFC, Vendor hereby authorizes FFC to
endorse, in writing or by stamp, in Vendor's name or otherwise any and
all checks, drafts, notes, bills of exchange and orders, howsoever
received by FFC, representing any Payment under any Contract funded by
FFC.
7. AGREEMENT PERIOD/TERMINATION. This Agreement shall continue in effect
for three (3) consecutive years commencing upon the execution date as
shown on the first page hereof, after which the Agreement shall
automatically renew for three (3) year periods. This Agreement may be
terminated by either party at any time upon thirty (30) days' written
notice to the other, provided,
however, that all of the rights and obligations of the parties,
including Vendor's warranties and representations, applicable to
Contracts funded by FFC prior to such termination shall survive such
termination.
IN WITNESS WHEREOF, FFC and Vendor have executed this
Agreement as of the date set forth on the first page hereof.
TASTY FRIES, INC. XXXXXXX FlNANCIAL
("Vendor") CORPORATION ("FFC")
By:/S/ XXXXXX X. XXXXX By:/S/
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Title:PRESIDENT Title:PRESIDENT
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Address: 000 Xxxxxx Xxxxxxx, Address: One Xxxxxxx Financial Place
Suite One 0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000 Lisle, IL 60532-0810
Term Sheet Addendum to Vendor Agreement
The following amends and is part of the Vendor Agreement between Tasty
Fries, Inc. ("Vendor") and Xxxxxxx Financial Corporation ("FFC").
PROJECTIONS: Vendor's projections are that it will generate
fifteen million dollars ($15 million) of funding
requirements under its program for the lease of
equipment.
FUNDING: Funding by FFC to Vendor shall be subject to FFC's
credit standards and shall be predicated on a cost
per unit from Vendor of no more than $15,000. The
monthly rate factor to be charged customer is as
follows:
36 months .036555
48 months .029930
60 months .026060
Plus applicable taxes, if any.
MARKET
CONDlTIONS: The parties recognize that market conditions,
including the prevailing interest rates, may require
either party to amend the forecasted pricing herein.
In those instances where conditions require pricing
modification, each party shall notify the other in
writing, and shall reasonably cooperate in amending
the pricing set forth herein. Failure to agree to any
modifications shall cause this agreement to
terminate.
MISCELLANEOUS: The construction of Addendum shall govern and control
over the Vendor Agreement where and if there is a
conflict between the documents.
AGREED:
TASTY FRIES, INC. XXXXXXX FINANCIAL
CORPORATION CORPORATION ("FFC")
By: /S/XXXXXX X. XXXXX By: /S/PRESIDENT
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Its: PRESIDENT Its: PRESIDENT
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