Exhibit 10.9
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HSBC Business Credit (USA) Inc. LEASE AGREEMENT
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The undersigned lessor (herein, "Lessor") does hereby lease to the
undersigned lessee Coffee Holding Co., Inc. a Nevada corporation (herein,
"Lessee"), subject to the terms and conditions set forth, the equipment
described below, together with all attachments and accessories now or hereafter
affixed thereto, and substitutions and replacements thereof (herein, the
"Equipment"):
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Equipment Description
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Two (2) ICA Automatic Packaging Machines, S/N; V3649, S/N V3650, including all
attachment and accessories.
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No. of Rental Commencement Date Lease Expiration Date
Installments 36 July 19, 2002 July 19, 2005
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Rental Installment Other Terms: See $1 Purchase Rider
Amount attached hereto and by this reference made a
$11,770.71 part hereof.
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EQUIPMENT LOCATION:
Upon execution of this Lease, Lessee shall pay to Lessor the first N/A
Rental Installment(s) and a Security Deposit in the amount of $-0-. All rental
installments are based on an Equipment cost to Lessor equal to $383,763.60. In
the event the Lessor's cost is other than as set forth above, the rental
installment amount set forth above shall be adjusted accordingly.
TERMS AND CONDITIONS
1. Lessee acknowledges that it has reviewed and approved any written
Supply Contract and that Lessor has advised Lessee in writing of the identity of
the Supplier of the Equipment, that Lessee is entitled to the promises and
warranties, if any, of the Supplier or any third party provided by the Supplier
to Lessor in connection with or as part of the Supply Contract and that Lessee
may contact Supplier for an accurate and complete description of any such
promises and warranties, including any disclaimers and limitations of them or of
remedies. Lessee shall be deemed to have irrevocably accepted the Equipment
under this Lease by its execution of Lessor's form of Delivery and Acceptance
Certificate. If the Commencement Date is left blank above, then the Commencement
Date is the date of delivery and acceptance of the equipment as evidence by
Lessee's execution of the Delivery and Acceptance Certificate. The rental term
of the Equipment shall commence upon the Commencement Date and shall continue
until the lease expiration date set forth above. Lessee shall pay rent to
Lessor, monthly in advance, in the Rental Installment amounts, and for the
number of Rental Installments both as set forth above, on the first day of each
month (unless otherwise provided herein) during the term hereof, plus, in the
case of the first Rental Installment, the per diem equivalent of the Rental
Installment for each day from and including the Commencement Date to and
including the day immediately preceding the due date of such Rental Installment.
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2. All rentals shall be paid to Lessor at Lessor's address, or at such
other address as Lessor may specify by notice to Lessee. All such rentals shall
be paid without notice or demand, and Lessee's obligation to pay such rentals
shall be absolute and unconditional and not subject to any abatement, reduction,
set-off, defense, counterclaim or recoupment (for any reason whatsoever
(including, without limitation, Abatements due to any present or future claims
of Lessee against Lessor under this Lease or otherwise, or against the
manufacturer or vendor of the Equipment); nor, except as otherwise expressly
provided herein, shall this Lease terminate or the obligations of Lessee
hereunder be affected by reason of any defect in or damage to, or any loss or
destruction of, any Equipment front any cause whatsoever, or the interference
with the use thereof by any private person, corporation or governmental
authority, or the invalidity or unenforceability or lack of due authorization of
this Lease or lack of right, power or authority to enter into this Lease, or fur
any other cause, whether similar or dissimilar to the foregoing, any present or
future law or regulation to the contrary notwithstanding. If any rentals or
other sums due hereunder are not paid within 10 days of the due date thereof,
Lessee shall pay to Lessor on demand, as additional rental, an amount equal to
five percent (5%) of such past due rentals or sums.
3. To the extent that, contrary to the intention of the parties, the
transaction evidenced hereby is deemed to be a pledge or security agreement,
Lessee hereby grants a security interest in and to the Equipment to Lessor to
secure the obligations of Lessee hereunder.
4. Until the Equipment is returned to Lessor in accordance with the terms
of this Lease, Lessee shall: (a) use the Equipment solely in the conduct of its
business, (b) keep the Equipment at the address specified in this Lease, or as
set forth in the Delivery and Acceptance Certificate, and not remove all or any
part of the Equipment therefrom without the Lessor's prior written consent, (c)
use and preserve the Equipment in a careful, proper and lawful manner, and in
accordance with manufacturer's specifications and applicable insurance
requirements, (d) at its own expense, keep the Equipment in good repair,
condition and working order and furnish any and all parts and labor required for
that purpose, and in this connection shall use only spare and repair parts
manufactured or furnished by the manufacturer of the Equipment, (e) not make any
material alterations to the Equipment without the prior written consent of
Lessor, and Lessee agrees that all equipment, attachments, accessories and
repairs at any time made to or placed upon the Equipment shall immediately
become the property of Lessor, and shall be deemed to have been incorporated
into the Equipment and subject to the terms and conditions of this Lease as if
originally leased hereunder, (f) promptly notify Lessor of any loss of or damage
to the Equipment, (g) assume and shall bear the entire risk of loss of and
damage to the Equipment, and injury or death to persons, from any cause
whatsoever pursuant to the provisions of' this Lease, and provide full insurance
coverage as hereinafter provided, (h) xxxx and identify the Equipment with all
information and in such manner as Lessor may request from time to time and
replace promptly any such markings or identifications which are removed, defaced
or destroyed, (i) permit reasonable access by Lessor or its agents to the
Equipment during normal business hours for purposes of inspection, (j) protect
and defend, at its own cost and expense, the title of Lessor in and to the
Equipment from and against all claims, liens, encumbrances and legal processes
of Lessee's creditors or any other party claiming by or through Lessee, and (k)
NOT ASSIGN, SUBLET OR HYPOTHECATE ANY OF THE EQUIPMENT OR ANY INTEREST IN THIS
LEASE OR ALLOW THE EQUIPMENT TO BE USED BY PERSONS OTHER THAN EMPLOYEES OF THE
LESSEE, AND ANY ATTEMPT TO DO SO SHALL CONSTITUTE
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A DEFAULT HEREUNDER AND SUCH ASSIGNMENT, SUBLEASE OR HYPOTHECATION SHALL BE VOID
AND WITHOUT EFFECT.
5. Lessee shall, at its expense, insure and keep the Equipment insured
against all risks of physical loss at not less than the lesser of: (a) the full
replacement value thereof or (b) the Stipulated Loss Value (if any) shown herein
or on any addendum, amendment or attachment hereto (the "Stipulated Loss
Value"); but in any event an amount sufficient to avoid the effect of any
coinsurance clause. Lessee shall further, at its expense, provide and maintain
comprehensive public liability insurance against claims for bodily injury, death
and/or property damage arising out of the use, ownership, possession, operation
or condition of the Equipment, together with such other insurance as may be
required by law or reasonably requested by Lessor. All said insurance shall name
both Lessor and Lessee as parties insured and shall be in form and amount and
with insurers satisfactory to Lessor, and Lessee shall furnish to Lessor
certified copies or certificates of the policies of such insurance and each
renewal thereof. Each insurer must agree by endorsement upon the policy or
policies issued by it that it will give Lessor not less than 30 days' written
notice before such policy or policies arc cancelled, nonrenewed or materially
altered and, with respect to property insurance, that (aa) losses shall be
payable solely to Lessor, and (bb) no act or omission of Lessee or any of its
officers, agents, employees or representatives shall affect the obiligation of
the insurer to pay the full amount of any loss. Lessee hereby irrevocably
authorizes Lessor to make, settle and adjust claims under such policy or
policies of property insurance and to endorse the name of Lessee on any check or
other item of payment for the proceeds thereof; it being understood, however,
that unless otherwise directed in writing by Lessor, Lessee shall make and file
timely all claims under such policy or policies, and Lessee may, unless Lessee
is then in default, settle and adjust all such claims.
6. Lessee agrees to report and pay to the appropriate authority any and
all license fees, registration fees, assessments, charges and taxes, including
penalty and interest, if any, assessed against the Equipment or the ownership,
purchase, rental or use of the Equipment, except for taxes payable in respect to
Lessor's net income. Unless Lessee provides Lessor with a valid certificate of
exemption, Lessee shall pay all applicable sales or use taxes to Lessor.
7. LESSEE HEREBY WAIVES ANY RIGHT TO CANCEL, REPUDIATE OR TERMINATE THIS
LEASE. REVOKE ACCEPTANCE OF THE EQUIPMENT, ACCEPT PARTIAL DELIVERY OF THE
EQUIPMENT, "COVER" BY PURCHASING OR LEASING REPLACEMENT EQUIPMENT, RECOVER
SPECIAL OR CONSEQUENTIAL DAMAGES AND ANY RIGHT TO SEEK SPECIFIC PERFORMANCE
HEREOF.
THIS LEASE SETS FORTH THE FULL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE MODIFIED, EXCEPT IN A WRITING SIGNED BY THEM. NEITHER THIS LEASE NOR LESSEES
RIGHTS IN THE EQUIPMENT MAY BE ASSIGNED BY LESSEE.
8. The Equipment shall remain personal property notwithstanding the manner
in which it may be attached to realty, and title thereto shall remain in Lessor
exclusively. Lessee shall keep the Equipment free from all liens and
encumbrances. Lessee shall execute and/or to Lessor any further instruments and
assurances reasonably requested from time to time by Lessor to protect its
interest, and Lessee shall otherwise cooperate and defend the title of Lessor
and to
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maintain the status of the Equipment as personal property, including, without
limitation, the execution of financing statements, motor vehicle documentation
(for the purpose of obtaining titles in Lessor's name, noting liens on vehicles,
obtaining repossession title certificates or otherwise protecting Lessor's
interest in vehicles) and the furnishing of waivers with respect to rights in
the Equipment from the owners and mortgagees of the real estate on which the
Equipment is or will be located, all at Lessee's expense. Without limiting the
foregoing, Lessee hereby authorizes and irrevocably appoints Lessor as Lessee's
attorney-in-fact, coupled with an interest, with full power of substitution, to
execute and file such financing statements, motor vehicle documentation
(relating to titles, lien notation and/or repossession title certificates) and
other documents in all places where necessary to protect Lessor's interest in
the Equipment.
9. Lessor shall not be liable for any direct, indirect, special or
consequential damages or loss (a) resulting from the non-delivery, delivery,
manufacture, installation, use, ownership or operation of the Equipment or from
any defects in or failures, malfunctions, repairs, replacements or alterations
thereof, or (b) arising out of this Lease or any breach hereof, or (c) without
limitation, arising out of any other liability of any nature with respect to the
Equipment, or this Lease or any breach thereof (hereinafter "Liabilities"), and
Lessee shall and hereby does indemnify and hold harmless Lessor, its directors,
officers, employees, agents and representatives, from any and all claims,
actions, suits, proceedings, costs, expenses, damages and liabilities, including
attorneys' fees, arising out of, connected with, or resulting from, this Lease
or the breach thereof or the Equipment, including, without limitation, any and
at Liabilities. LESSEE UNDERSTANDS AND AGREES THAT LESSOR MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE
CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY, THE FITNESS OF THE EQUIPMENT
FOR A PARTICULAR PURPOSE, OR WITH RESPECT TO PATENT INFRINGEMENT OR THE LIKE.
THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS LEASE AND MAY NOT BE
MODIFIED, AMENDED DISCHARGED OR TERMINATED BY ANY WRITING OR ANY ACTION,
INACTION CONDUCT OR PAST DEALINGS OF THE PARTIES HERETO.
10. Lessee warrants to Lessor that (a) this Lease has been duly and
validly executed and delivered by Lessee and constitutes and will constitute the
valid and binding obligation of Lessee, and is and will be enforceable in
accordance with its terms; (b) the execution, delivery and performance of this
Lease by Lessee will not violate any law or other governmental requirement or,
if Lessee is a corporation, Lessee's corporate charter or by-laws; nor will it
constitute a default under any agreement, instrument or document to which Lessee
is now or hereafter a party or by which Lessee is now or will hereafter be bound
(c) all financial statements and information which have been or may hereafter be
submitted to Lessor relating to Lessee or any guarantor of Lessee's obligations
hereunder ("Guarantor") have been and will be complete, true and correct and
have been and will be prepared in accordance with generally accepted accounting
principles; Lessee agrees to deliver to Lessor at any time or times hereafter
such documents as Lessor may reasonably request to demonstrate Lessee's
compliance with this Lease.
11. So long as Lessee shall not be in default and fully performs all of
its obligations hereunder, Lessor will not interfere with the quiet use and
enjoyment of the Equipment by Lessee.
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12. Lessee hereby consents to any assignment or encumbrance by Lessor of
this Lease or all or any part of the rentals hereunder or the rights of Lessor
in the Equipment, with or without notice. Lessee agrees that the rights
hereunder of any assignee or creditor of Lessor shall not be subject to any
defense, setoff or counterclaim that Lessee may have against the Lessor, and
(that any such assignee or creditor shall have all of Lessor's rights hereunder,
but none of Lessor's obligations hereunder or any claim which Lessee may have
against Lessor. The rights of Lessee hereunder are subject and subordinate to
any security interest granted by Lessor in the Equipment.
13. Upon the expiration or earlier termination of this Lease with respect
to any Equipment, Lessee shall return such Equipment to Lessor in the condition
required by this Lease. Lessee shall make such return, at its expense, by
causing such Equipment to be assembled, crated and loaded on board such carrier
as Lessor shall specify and shipping the same, freight and insurance prepaid, to
the destination specified by Lessor. Lessee shall pay to Lessor on demand as
additional rental hereunder, the cost of any repairs necessary to then place the
Equipment in the condition required by the Lease. If Lessor shall so require,
Lessee will provide free storage and insurance for any Equipment at Lessee's
location for a period not exceeding sixty (60) days from date of expiration as'
earlier termination of this Lease. If, for whatever reason, Lessee fails to
return the Equipment or set forth herein, Lessee agrees to pay, at Lessor's sole
option, rental installments to Lessor in the same amount as hereinabove
provided, until so returned.
14. As used herein the term "Event of Loss" shall mean the actual or
constructive loss of the Equipment, by damage, theft, or otherwise, including
any failure to return the Equipment to Lessor upon the expiration or termination
of this Lease, unless Lessee shall have purchased the Equipment or renewed this
Lease, pursuant to the terms of any purchase or renewal option to this Lease.
Upon the occurrence of an Event of Loss, Lessee shall notify Lessor in writing
of such occurrence and pay to Lessor within 30 days of the date of the Event of
Loss, the Casualty Value. As used herein the term "Casualty Value" shall mean':
(a) the sum of any and all amounts then due and owing hereunder including
without limitation, accrued but unpaid rent (collectively, the "Accrued
Amounts") and the Stipulated Loss Value or, if none (b) the sum of the Accrued
Amounts and the aggregate of all future rentals reserved herein and discounted
to present value at a rate equal to the Federal Reserve Discount Rate for the
Federal Reserve Bank of New York then in effect (the "Discount Rate"), plus the
purchase option/agreement or estimated residual amount stated herein or in any
purchase option, purchase agreement or terminal rental adjustment clause
applicable to the Equipment, also discounted at the Discount Rate.
15. Each of the following shall constitute a default under this Lease: (a)
the breach by Lessee of its obligations to pay rent when due and the failure to
cure said breach within ten (10) days, (b) the breach by Lessee of any of the
other terms hereof, (c) if Lessee or any Guarantor dies or becomes insolvent or
ceases to do business as a going concern, (d) if Lessee or any Guarantor makes
an assignment for the benefit of creditors, (e) if a petition in bankruptcy or
for arrangement or reorganization is filed by or against Lessee or any
Guarantor, (f) if property of Lessee or any Guarantor is attached or a receiver
is appointed for Lessee or any Guarantor, or any of Lessee's or Guarantor's
property, (g) the occurrence of a default pursuant to the provisions of any
other agreement by and between Lessor or HSSC Bank USA ("Bank") or any
subsidiary or affiliate thereof and Lessee or any Guarantor, (h) the occurrence
of a default (with any applicable cure period having expired), under any
material agreement for the payment of
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money to which Lessee or any Guarantor is a party, (i) if false or misleading
representations or warranties are made or given either heretofore or hereafter
in connection with this Lease or the extension of credit hereunder by Lessor,
(j) if a material adverse change in Lessor's or any Guarantor financial or
business condition occurs, or (k) if there occurs any sale or disposition of:
(i) the principal business assets of Lessee or any Guarantor if Lessee or such
Guarantor is a sole proprietorship, (ii) a controlling interest in Lessee or any
Guarantor if Lessee or such Guarantor is a corporation, partnership or similar
entity or (iii) all or substantially all of the assets of Lessee or any
Guarantor.
16. In the event of any default under this Lease, Lessor may, at its
option, do one or more of the following: (a) terminate this Lease and Lessee's
rights hereunder, (b) proceed by appropriate court action to enforce performance
of the terms of this Lease and/or recover damages for the breach hereof; (C) by
notice in writing, cause Lessee, at Lessee's expense, promptly to return the
Equipment to the possession of the Lessor in accordance with the terms hereof,
or Lessor directly or by its agent, and without notice or liability or legal
process, may enter upon any premises where any Equipment is located, take
possession of such Equipment, and either store it on said premises without
charge or remove the same (any damages occasioned by such taking of possession,
storage or removal being waived by Lessee); and/or (d) declare as immediately
due and payable and forthwith recover from Lessee, as liquidated damages and not
as a penalty, an amount equal to the Casualty Value with interest thereon at a
per annum rate of eighteen percent (18%) from and after the date of demand
therefor.
In the event of any repossession of any Equipment by Lessor, Lessor may
(but need not), without notice to Lessee, (A) hold or use all or part of such
Equipment for any purpose whatsoever, (B) sell all or part of such Equipment at
public or private sale for cash or on credit and/or (C) relet all or part of
such Equipment upon such terms as Lessor may solely determine, in each case
without any duty to account to Lessee except as herein expressly provided. After
any repossession of Equipment by Lessor there shall be applied on account of the
obligations of Lessee hereunder the net proceeds actually by Lessor from a sale
or lease of such Equipment, after deduction of all expenses of sale and other
expenses recoverable by Lessor hereunder. No termination, repossession or other
act by Lessor after default shall relieve Lessee from any of its obligations
hereunder. In addition to all other charges hereunder, Lessee shall pay to
Lessor on demand all fees, costs and expenses incurred by Lessor as a result of
such default, including without limitation, reasonable attorneys', appraisers'
and brokers' fees and expenses and costs of removal, storage, transportation,
insurance and disposition of the Equipment. In the event that any court of
competent jurisdiction determines that any provision of this Section is invalid
or unenforceable in whole or in part, such determination shall not prohibit
Lessor from establishing its damages sustained as a result of any breach of this
Lease in any action or proceedings in which Lessor seeks to recover such
damages. To the extent permitted by law, Lessee hereby waives any right of
setoff or counterclaim in any action between Lessor and Lessee. The remedies
provided herein in favor of Lessor shall not be exclusive, but shall be
cumulative and in addition to all other remedies existing at law or in equity,
any one or more of which may be exercised simultaneously or successively.
As additional collateral security for the payment and performance of its
obligations hereunder, and under any other agreement by and between Lessor and
Lesser, Lessee hereby creates and grants in f of Lessor a security interest in
any and all equipment, fixtures, goods,
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inventory, documents, instruments, accounts, chattel paper, general intangibles
or other personal property or fixtures in which Lessor or Bank or any subsidiary
or affiliate thereof now has or may hereafter have a security interest.
17. If Lessee shall fail to make any payment or perform any act or
obligation required of Lessee hereunder, Lessor may (but need not) at any time
thereafter make such payment or perform such act or obligation at the expense of
Lessee. Any payment so made or expense so incurred by Lessor shall constitute
additional rental hereunder payable by Lessee to Lessor upon demand, The
performance of any act or payment of any monies by Lessor, as aforesaid, shall
not be deemed a waiver or release of any obligation or default on the part of
Lessee.
18. Lessee shall furnish to Lessor within 120 days after the end of each
fiscal year of Lessee during the term hereof a statement of profit and loss and
of surplus of Lessee for such fiscal year-end and a balance sheet of Lessee as
at the end of such year, all in accordance with generally accepted accounting
principles and in reasonable detail and certified by a reputable firm of
independent public accountants. Lessee shall furnish to Lessor such other
information about the condition and affairs of Lessee and any Guarantor and
about the Equipment as Lessor may from time to time reasonably request.
19. Lessee shall give Lessor immediate notice of any default hereunder,
any material adverse change in financial condition or operations of Lessee or
any Guarantor, or any loss, material damage or accident affecting the Equipment.
All notices under this Lease shall be in writing and sent to the address
hereinabove, or as the parties may designate. None of the provisions of this
Lease shall be held to have been waived by any act or knowledge of Lessor, but
only by a written instrument executed by Lessor and delivered to Lessee. If any
provision of this Lease or the application thereof is hereafter held invalid or
unenforceable, the remainder of this Lease shall not be affected thereby, and to
this end the provisions of this Lease are declared severable.
20. The parties hereto intend to comply with any and all applicable usury
laws now in effect or hereafter enacted; if any interest rate inherent in this
Lease would violate any such statute or regulation applicable thereto, the
rate(s) shall be deemed automatically amended to the highest lawful rate
allowed.
21. Subject to the terms hereof, this Lease shall be binding upon and
inure the benefit of Lessor and Lessee and their respective personal
representatives, successors and assigns. This Lease shall be construed and
enforced in accordance with, and governed by, the laws of the State of New York,
without regard to principles of conflicts of laws. LESSEE AGREES THAT LESSOR MAY
BRING ANY ACTION OR PROCEEDING TO ENFORCE THIS LEASE OR RELATED DOCUMENTS IN ANY
SUPREME COURT OF THE STATE OF NEW YORK OR ANY DISTRICT COURT OF THE UNITED
STATES LOCATED WITHIN THE STATE OF NEW YORK, AND AGREES THAT SERVICE OF PROCESS
BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, SHALL BE SUFFICIENT TO CONFER
PERSONAL JURISDICTION. LESSEE AND LESSOR WAIVE THEIR RIGHT TO TRIAL BY JURY IN
CONNECTION WITH ANY ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS LEASE
OR RELATED DOCUMENTS. This Lease is submitted to Lessor for acceptance or
rejection and will not
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become effective until accepted by Lessor in writing at its principal office.
This Lease is irrevocable by Lessee for the full term hereof and for the
aggregate rentals herein reserved.
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LESSEE'S INITIAL XX
XXXXXX: LESSEE:
HSBC Business Credit (USA) Inc. Coffee Holding Co., Inc.
One HSBC Center, 29th Floor, 0000 Xxxxx Xxxxxx, Xxxxxxxx, XX 00000
Xxxxxxx, XX 00000
By: /s/ X.X. Xxxxxx III By: /s/ Xxxxx Xxxxxx
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X. X. Xxxxxx III - VP Xxxxx Xxxxxx, V.P.
----------------------------------- -------------------------------------
(Print or Type: Name and Title) (Print or Type: Name and Title)
Date: July 19, 2002 Date: July 19, 2002
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HSBC Business Credit (USA) Inc. $1.00 PURCHASE RIDER
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This Rider is attached to and forms a part of that certain Lease
Agreement dated July 19, 2002 (such Lease Agreement being referred to herein as
the "Lease" by and between HSBC Business Credit (USA) Inc. ("Lessor") and Coffee
Holding Co., Inc. ("Lessee").
1. Immediately upon payment by Lessee of all of the installments now or
hereafter coming due, and performance by Lessee of all other obligations, under
the Lease, and notwithstanding any other provision in the Lease to the contrary,
Lessee shall purchase from Lessor all the equipment covered by the Lease
("Equipment") (for the sum of $1.00, plus all applicable sales and other taxes
("Purchase Price").
2. Upon final and irrevocable payment of the Purchase Price, Lessor shall
execute and deliver to Lessee a Xxxx of Sale conveying all Lessor's right, title
and interest to the Equipment, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, ON AN "AS IS, WHERE IS" BASIS, WITH ALL FAULTS.
HSBC Business Credit (USA) Inc. Coffee Holding Co., Inc.
By: /s/ X.X. Xxxxxx III By: /s/ Xxxxx Xxxxxx
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X.X. Xxxxxx III - V.P. Xxxxx Xxxxxx, V.P.
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(Print or Type: Name and Title) (Print or Type: Name and Title)
Date: July 19, 2002 Date: June 28, 2002
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HSBC Business Credit (USA) Inc. PAY PROCEEDS
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TO: HSBC Business Credit (USA) Inc. Date: July 19, 0000
Xxx XXXX Xxxxxx-00xx Xxxxx
Xxxxxxx, XX 00000
Reference is hereby directed toward that certain LEASE AGREEMENT dated
2002 for and in consideration of which your company has agreed to advance funds
in the amount of $383,763.60. Accordingly, the undersigned hereby irrevocably
authorizes your company to disburse said amount as follows:
Pay to: ICA S.P.A. $34,274.00
Pay to: Coffee Holding Co., Inc. $349,489.60
Very Truly yours,
Coffee Holding Co., Inc.
(name of Lessee)
By: /s/ Xxxxx Xxxxxx
---------------------------------
Title: V.P.
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HSBC Business Credit (USA) Inc. CORPORATE RESOLUTION
INCUMBENCY CERTIFICATE
(LEASE)
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I XXXXX XXXXXX, DO HEREBY CERTIFY THAT:
I am the duly elected, qualified and acting (Assistant) Secretary of
Coffee Holding Co. Inc. (the "Corporation").
The following resolutions were adopted by the corporation either at a duly
called meeting, or by unanimous written consent, of the Board of Directors of
the Corporation, such meeting having been held on or such consent being dated as
of 1 July 2002.
RESOLVED, that the Corporation be, and hereby is, authorized to lease
equipment, goods or materials from time to time (the "Leased Equipment") from
HSBC Business Credit (USA) Inc., Xxx XXXX Xxxxxx, 00xx Xxxxx, Xxxxxxx, XX 00000
or any assignee or successor thereof (collectively, "Lessor"), upon such terms
as the Corporation may from time to time require, and that any and all of the
officers of the Corporation be, and hereby are, authorized on behalf of the
Corporation to execute, acknowledge and deliver to Lessor one or more lessees on
such terms as the officer or officers executing such documents on behalf of the
Corporation may approve, such approval to be conclusively evidenced by the
execution thereof; and
RESOLVED FURTHER, that, if Lessor should require, the Corporation be, and
hereby is, authorized to pledge, mortgage or grant security interests in, from
time to time, any or all of the Corporation's assets, whether real, personal,
intangible, or a combination thereof, to secure the Corporation's obligations
under any such leases, and that any and all officers of the Corporation be, and
hereby are, authorized on behalf of the Corporation to execute, acknowledge and
deliver to Lessor any security documents upon such terms as the officer or
officers executing such security documents on behalf of the Corporation may
approve, such approval to be conclusively evidenced by the execution thereof;
RESOLVED FURTHER, that any and all officers of the Corporation be, and
hereby are, authorized and directed to do or cause to be done all such acts and
things as may be necessary, advisable, convenient and proper in connection with
the execution and delivery of leases authorized at this meeting and in
connection with or incidental to the consummation of the transactions
contemplated thereby, including the execution and delivery of any and all
instruments or agreements as may be required by Lessor in connection with such
leases and security documents; and
RESOLVED FURTHER, that Lessor may rely on these resolutions until written
notice of any modification, rescission or revocation of same shall, in whole or
in part, has been delivered to Lessor, but no such modification, rescission or
revocation shall, in any event, be effective with respect to any documents
executed or actions taken in reliance upon the foregoing authority prior to the
delivery to Lessor of such written notice of modification, rescission or
revocation.
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I CERTIFY THAT the Corporation is a corporation duly organized, existing
and in good standing under the laws of the state of its incorporation.
I DO FURTHER CERTIFY THAT the above resolutions have not been altered,
amended, repealed or rescinded.
I DO FURTHER CERTIFY THAT on this date the persons whose names, titles and
signatures are listed below are duly elected (or appointed). qualified and
acting officers of the Corporation and hold the offices set opposite their
respective names, that the signatures appearing opposite their respective names
arc the genuine signatures of such officers, that each of such officers is duly
authorized for and on behalf of the Corporation to execute and deliver any of
the documents contemplated by the foregoing resolutions for and on behalf of the
Corporation and is not prohibited by or in any manner restricted by the terms of
the Corporation's Certificate of Incorporation its By-Laws, or of any loan
agreement, indenture or contract to which the Corporation is a party or under
which it is bound, nor is the Corporation prohibited or restricted in connection
therewith by the ruling of any governmental authority or court. I also certify
that the foregoing authority shall remain in full force and effect and that
Lessor shall be entitled to rely upon same, until written notice of the
modification, rescission or revocation of same in whole or in part, has been
delivered to Lessor, but no such modification, rescission or revocation shall,
in any event, be effective with respect to any documents executed or actions
taken in reliance upon the foregoing authority prior to the delivery to Lessor
of such written notice of modification, rescission or revocation.
--------------------------------------------------------------------------------
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Name of Officer Title of Officer Signature of Officer
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Xxxxxx Xxxxxx Pres & CEO /s/ Xxxxxx Xxxxxx
--------------------------------------------------------------------------------
Xxxxx Xxxxxx V. Pres /s/ Xxxxx Xxxxxx
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IN WITNESS WHREOF, I have hereunto set my hand and affixed the seal of the
Corporation this 28th day of June 2002.
/s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx
-----------------------------------------
(Type or Print Name) Assistant Secretary
Member HSBC Group
13
