Exhibit 10.22
MASTER LEASE AGREEMENT
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(Pennsylvania)
This Master Lease Agreement ("Agreement") is dated as of December 31,
2002 by and between COMMERCE COMMERCIAL LEASING, LLC ("Lessor"), having an
office at 0000 Xxxxxx Xxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000, and Pennexx Foods,
Inc. ("Lessee").
In consideration of the mutual agreements set forth below and the
payment of rent as provided for herein, and intending to be legally bound, the
parties agree as follows:
1. 1. LEASE. This Agreement establishes the general terms and conditions
under which Lessor may from time to time lease equipment and other property to
Lessee. The terms of this Agreement shall be deemed to form a part of each
Schedule executed by Lessee and Lessor which references this Agreement.
"Equipment" shall mean all items of equipment and other property described on
any "Schedule." Each Schedule shall constitute a separate lease agreement
("Lease") incorporating all of the terms and conditions of this Agreement. In
the event of a conflict between the provisions of any Lease and the provisions
of this Agreement, the provisions of the Lease shall prevail.
2. TERMS AND LEASE PAYMENTS. This Agreement shall become effective when it
is signed by Lessee and accepted by Lessor and shall remain in effect until the
last Lease term under any Schedule has expired. Individual Leases go into effect
and the term of a Lease begins when it is signed by Lessee and accepted by
Lessor ("Commencement Date"). Lessee hereby authorizes Lessor to insert the
Commencement Date on each Lease. Lessee shall pay to Lessor rent ("Lease
Payments") for each item of Equipment in the amount and at the times specified
in the Schedule for such Equipment. The first Lease Payment is due on the date
Lessor accepts the Lease or any later date designated by Lessor and interim rent
shall be due from the date Lessee accepts the Equipment. Subsequent Lease
Payments will be due as invoiced by Lessor for successive months until the
balance of the Lease Payments and any additional Lease Payment or expenses
chargeable to Lessee under a Lease are paid in full. LESSEE'S OBLIGATION TO PAY
THE LEASE PAYMENTS AND OTHER LEASE OBLIGATIONS IS ABSOLUTE AND UNCONDITIONAL AND
IS NOT SUBJECT TO CANCELLATION, DEFENSE, DEDUCTION, RECOUPMENT, REDUCTION,
SETOFF, CLAIM OR COUNTERCLAIM. THIS AGREEMENT AND ALL LEASES ARE
NON-CANCELLABLE. All Payments will be made to Lessor as set forth on the Lease
or any other place Lessor indicates in writing.
The amounts of each Lease Payment is based on the supplier's best estimate of
the Equipment cost including (if applicable), any installation, other related
costs and estimated sales or use tax. The Lease Payments will be adjusted
proportionately upward or downward if the actual total cost of the Equipment or
taxes is more or less than the estimate. In that event, Lessee authorizes Lessor
to adjust the Lease Payments by up to ten percent (10%). The Base Lease Rental
Payments referenced herein are indexed to the yield of the 7 year U.S. Treasury
Note as reported by the Wall Street Journal (Reference Yield). This proposal
assumes the Referenced Yield at 3.50%. The Base Lease Rental Payment will be
adjusted on or about the Base Commencement Date to reflect any change in the
Referenced Yield.
3. DELIVERY AND ACCEPTANCE. Lessee is responsible, at Lessee's own cost and
expense, to arrange for the delivery and installation of the Equipment (unless
such costs are included in the cost of the Equipment to Lessor). Lessee agrees
to accept the Equipment when it is delivered and to sign the Equipment
Acceptance supplied by Lessor.
4. DISCLAIMER OF WARRANTIES. Lessee acknowledges that Lessor is not the
manufacturer of the Equipment, nor the manufacturer's or vendor's agent. Nor is
the vendor an agent of Lessor. Lessee has selected the Equipment based upon
Lessee's own judgment. Lessee disclaims any reliance upon any statements or
representations made by Lessor and acknowledges that representations made by
Vendor, unless specifically contained in this Agreement, shall not be binding
upon Lessor. LESSOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR
WARRANTY OF ANY KIND, WHETHER DIRECT OR INDIRECT, EXPRESS OR IMPLIED, WITH
RESPECT TO THE SUITABILITY, MATERIALS, DURABILITY, DESIGN, WORKMANSHIP,
OPERATION OR CONDITION OF THE EQUIPMENT OR ANY PART THEREOF, ITS
MERCHANTABILITY, FITNESS FOR USE FOR THE PARTICULAR PURPOSES AND USES OF LESSEE.
Lessor shall not be liable to Lessee for any loss, damage or expense of any kind
or nature caused directly or indirectly by the Equipment or for any damages
based on strict or absolute tort liability or Lessor's or vendor's negligence,
or due to the repair, service or adjustment of the Equipment, or by any delay or
failure to provide any maintenance, repair, service or adjustment, or by any
interruption of service, or for any loss of business however caused. NO DEFECT
OR UNFITNESS OF THE EQUIPMENT OR THE FACT THAT THE EQUIPMENT SHALL NOT OPERATE
OR THAT IT SHALL OPERATE IMPROPERLY SHALL RELIEVE LESSEE OF ANY OBLIGATION UNDER
THE LEASE.
5. TITLE, PERSONAL PROPERTY, LOCATION AND INSPECTION. Lessor owns the
Equipment and Lessee has the right to use the Equipment for the full Lease term
provided Lessee complies with the terms and conditions of this Agreement and the
Lease. Lessee will keep and use the Equipment only at the Equipment Location
shown on the applicable Schedule. Although the Equipment may become attached to
real estate, it remains personal property and Lessee agrees not to permit a lien
to be placed upon the Equipment or to remove the Equipment from the Equipment
Location without Lessor's prior written consent. The Equipment is removable from
and is not essential to the premises at which the Equipment is located. Lessor
also has the right, at reasonable times, to inspect the Equipment. If the Lessee
elects in writing to return the equipment at the end of term, the Lessor may
enter the premises where the equipment is located during normal business hours
for the purpose of showing and demonstrating the equipment to prospective
purchasers or for an appraisal of the equipment. The Lessee shall provide
adequate electrical, power, lighting, heat, water and personnel sufficient to
allow for normal demonstrations of the equipment to potential buyers.
6. MAINTENANCE. Lessee shall: use the equipment in a careful and lawful
manner; comply with and conform to all laws, ordinances and regulations related
to the possession, use and maintenance of the equipment; maintain the Equipment
so that it is certified for use by all regulatory agencies where applicable; and
use the equipment exclusively for agricultural, business or commercial purposes.
Lessee is required, at Lessee's own cost and expense, to keep the Equipment in
good repair, condition and working order, except for ordinary wear and tear, and
Lessee will supply all parts and servicing required. All replacement parts used
or installed and repairs made to the Equipment will become Lessor's property.
Lessee may, with Lessor's prior written consent, make modifications to the
Equipment; so long as such modifications do not reduce the value or usefulness
of the Equipment or result in the loss of any warranty or any certification
necessary for the maintenance of the Equipment and such modifications must be
easily removable without causing damage to the Equipment. Before returning the
Equipment, Lessee agrees to remove such modifications and restore the Equipment
to its original condition unless otherwise directed by Lessor. If Lessee fails
to remove such modifications, Lessor is deemed the owner of such modifications.
Lessee shall enter into and maintain in force, for the term of the lease, a
maintenance contact with the manufacturer of the equipment or with an approved
service provider satisfactory to Lessor and take all actions necessary to cause
the equipment to remain eligible for the manufacturers maintenance program. This
includes all replacements, upgrades, enhancements, software related to the
equipment that are required by the manufacturer for such eligibility. Lessee
shall provide Lessor with a copy of the maintenance contract and maintenance log
upon request. Subject to Lessor's prior approval, and as long as Lessee
demonstrate the capabilities that Lessee have the adequate skills and expertise
Lessee may elect to maintain certain types of equipment with Lessee's own
personnel. LESSEE ACKNOWLEDGES THAT LESSOR IS NOT RESPONSIBLE FOR PROVIDING ANY
REQUIRED MAINTENANCE AND/OR SERVICE FOR THE EQUIPMENT. LESSEE WILL MAKE ALL
CLAIMS FOR SERVICE AND/OR MAINTENANCE SOLELY TO THE SUPPLIER AND/OR MANUFACTURER
AND SUCH CLAIMS WILL NOT AFFECT LESSEE'S OBLIGATION TO MAKE ALL REQUIRED LEASE
PAYMENTS.
7. ASSIGNMENT. EXCEPT AS OTHERWISE PROVIDED IN THAT CERTAIN GUARANTY
AGREEMENT OF EVEN DATE HERWITH FROM SMITHFIELD FOODS, INC. TO LESSOR, LESSEE
AGREES NOT TO TRANSFER, SELL, SUBLEASE, ASSIGN, PLEDGE OR ENCUMBER EITHER THE
EQUIPMENT OR ANY OF LESSEE'S RIGHTS UNDER THIS AGREEMENT
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OR ANY LEASE OR OTHERWISE PERMIT THE EQUIPMENT TO BE OPERATED OR USED BY, OR
COME INTO OR REMAIN IN THE POSSESSION OF ANYONE BUT LESSEE, WITHOUT LESSOR'S
PRIOR WRITTEN CONSENT. No sale, assignment, transfer or sublease, whether
authorized herein or in violation of the terms hereof, shall relieve Lessee of
its obligations, and Lessee shall remain primarily liable, hereunder and under
each Lease. Lessee agrees that Lessor may sell, assign or transfer all or any
part of any Lease and if Lessor does, the new owner will have the same rights
and benefits that Lessor now has and will not have to perform any of Lessor's
obligations and that the rights of the new owner will not be subject to any
claims, defenses, or setoffs that Lessee may have against Lessor. Any such
assignment, sale or transfer of a Lease or the Equipment will not relieve Lessor
of Lessor's obligations to Lessee under the Lease. Subject to the foregoing,
this Agreement inures to the benefit of and is binding upon the successors and
assigns of the parties hereto and thereto, as the case may be (and, without
limiting the foregoing, shall bind all persons who became a "new debtor" to this
Agreement and any Lease, as defined in Section 9-203(e) of Revised Article 9 of
the UCC).
8. PURCHASE, RETURN AND RENEWAL OF EQUPMENT. So long as no default or event
of default shall have occurred and be continuing and the Lessee shall have given
Lessor written notice to Lessor at least one hundred eighty (180) days, but not
more than two hundred seventy (270) days prior to the expiration of the initial
term or any renewal of any Lease, Lessee shall advise Lessor of Lessee's
intention to (i) purchase all but not less than all of the Equipment for the
then Fair Market Value In Use, In Place plus applicable taxes; (ii) renew the
lease on a month to month basis at the same rent payable in monthly installments
in the same amount and due on the same date as during the initial term; or (iii)
return the Equipment to Lessor at the end of the initial term or any renewal of
such Lease. If Lessee fails to so notify Lessor, or having notified Lessor,
Lessee fails to return the Equipment as provided herein, the Lease shall renew
for an additional term of four (4) months, and Lessee agrees to continue to make
lease payments at the same monthly lease payment as set forth in this Lease,
subject to the right of either party to terminate any renewal upon one hundred
twenty (120) days written notice, in which case Lessee will immediately deliver
the Equipment to Lessor as stated in this paragraph. Provided Lessee has given
such timely notice to return the Equipment, Lessee shall return all, but not
less than all, of the Equipment, to any location within the continental United
States as designated by Lessor. The Lessee must prepare the Equipment for
shipping according to the manufacturer's instructions using approved packaging
material and shall bear all risk of damage or loss until the Equipment is
returned to Lessor at the designated location. All costs and expenses associated
with the packaging, shipping, delivery and inspection of the returned Equipment
shall be paid by Lessee, including any cost we incur for deinstallation of
alterations to the Equipment. Lessee agrees that Lessee shall be liable for all
damage to the Equipment in excess of reasonable wear and tear.
9. LOSS OR DAMAGE. Lessee assumes and shall bear the entire risk of loss or
destruction of, or damage to the Equipment from any cause whatsoever, whether or
not insured. No such loss or damage relieves Lessee from any obligation under a
Lease. Lessee agrees to promptly notify Lessor in writing of any loss or
destruction or damage to the Equipment and Lessee will, at Lessor's option, (a)
repair the Equipment to good condition and working order, (b) replace the
Equipment with like Equipment in good repair, condition and working order,
acceptable to Lessor and transfer clear title to such replacement Equipment to
Lessor, such Equipment shall be subject to the Lease and be deemed the
Equipment, or (c) pay to Lessor the present value of the total of all unpaid
Lease Payments for the full Lease term plus the estimated fair market value of
the Equipment at the end of the originally scheduled Lease term, all discounted
at a rate equal to, unless set forth in a separate schedule, four percent (4.0%)
per annum whereupon the Lease shall terminate. All proceeds of insurance
received by Lessor as a result of such loss or damage will be applied, where
applicable, toward the replacement or repair of the Equipment or the payment of
Lessee's obligations.
10. INDEMNITY. Lessee assumes liability for and agrees to indemnify, defend
(if requested by Lessor) and hold harmless Lessor and its employees and agents
from and against any and all liabilities, losses, damages, penalties, claims,
suits and repossession or return of the Equipment, actions, costs and expenses,
including court costs and Lessor's attorneys fees, of whatever kind imposed or
incurred by or asserted against Lessor (collectively, "Claims"), whether based
on a theory of strict liability or otherwise, caused by or related to (a) the
manufacture, selection, purchase, installation, ownership, use lease,
possession, delivery, operation, storage, repair, disposition or return of the
Equipment, unless due to the action inaction of Lessor or (b) any defects in the
Equipment. Lessee agrees to reimburse Lessor for and to defend Lessor against
any Claims. This indemnity will continue even after the termination or
expiration of a Lease and repossession or return of the Equipment.
11. TAXES. Lessee agrees to pay all license and registration fees, sale and
use taxes, personal property taxes and all other taxes and charges, relating to
the ownership, leasing, rental, sale, purchase, possession or use of the
Equipment as part of the Lease Payment or as billed by Lessor (exclusive of any
tax based on the net income of Lessor). Lessee agrees that if Lessor pays any
taxes or charges on Lessee's behalf, Lessee will reimburse Lessor for all such
payments and will pay Lessor interest and a late charge (as calculated in
Section 14) on such payments with the next Lease Payment, plus reasonable costs
incurred in collecting and administering any taxes, assessments or fees and
remitting them to the appropriate authorities. Lessor shall not be obligated to
contest any valuation of a tax imposed on the Equipment or on this Agreement or
any Lease.
12. INSURANCE. During the term of a Lease, Lessee will keep the Equipment
insured, at its sole cost and expense, against all risks of a loss or damage in
an amount not less than the replacement cost of the Equipment. Lessee will also
obtain and maintain for the term of a Lease, comprehensive public liability
insurance and such policy shall provide Lessee with thirty (30) days prior
written notice of cancellation of termination of such policy covering both
personal injury and property damage in an amount reasonably acceptable to
Lessor. Lessor will be the sole named loss payee on the property insurance under
a separate lender's loss payable clause and named as an additional insured on
the public liability insurance. Lessee will pay all premiums for such insurance
and Lessee shall deliver proof of insurance coverage to Lessor satisfactory to
Lessor. If Lessee does not provide such insurance, Lessee agrees that Lessor has
the right, but not the obligation, to obtain such insurance and charge Lessee
for all costs. Lessee irrevocably appoints Lessor as Lessee's attorney-in-fact
to make claims for, receive payment of, and execute and endorse all documents,
checks or drafts in payment for loss or damage under any said insurance
policies.
13. DEFAULT. An "Event of Default" shall be deemed to exist if any of the
following occurs: (a) Lessee fails to pay any Lease Payment or other sum due
hereunder within ten (10) days of when due; (b) Lessee fails to observe or
perform any other term, covenant or condition of this Agreement, any Lease or
any other agreement with Lessor and such failure continues for ten (10) days
from the occurrence of such failure; (c) Lessee or any guarantor or surety, if
any, dies, or becomes insolvent or unable to pay its debts when due; stops doing
business as a going concern; terminates its organizational existence, merges,
consolidates, transfers all or substantially all of Lessee's or its assets; (d)
a writ of attachment or execution is levied upon the Equipment unless released,
satisfied or stayed within fifteen (15) days of such levy; (e) the filing by or
against Lessee of a petition under the Bankruptcy Code or under any insolvency
law provided for relief of debtors unless with respect to a petition filed
against Lessee, it is dismissed within forty-five (45) days; (f) the voluntary
or involuntary making of an assignment for the benefit of creditors, the
appointment of a receiver or trustee for Lessee or for Lessee's assets, the
commencement of any formal or informal proceeding for dissolution, liquidation,
settlement of claims against or winding up of the affairs of Lessee; (g) any
representation, warranty or signature herein or made by Lessee or any surety or
guarantor of Lessee's obligations, if any, in any document delivered to Lessor
in connection with this Agreement or any Lease shall be false or misleading in
any material respect when made; (h) Lessee is in default under any other
agreement with Lessor or any affiliate of Lessor (including without limitation
Commerce Bank, N.A.) or any other person; (i) Lessee engages in any criminal
conduct that subjects the Equipment to seizure and/or confiscation by
governmental authorities; (j) Lessee uses or permits use of the Equipment in a
fashion not covered by the required insurance policies; (k) without the prior
written consent of Lessor, Lessee attempts to remove, sell, transfer, encumber,
part with possession, or sublet any item of Equipment; (l) Lessee suffers a
material adverse change in its financial condition, business, operations or
assets and, as a result, Lessor deems itself or any of its Equipment to be
insecure; (m) the termination of all or substantially all of Lessee's business
relationship, if any, with Commerce Bank, N.A., its successors or assigns; or
(n) any default under any guaranty agreement executed in connection with this
Agreement or any Lease, if any.
14. REMEDIES. Lessor has the following remedies if an Event of Default
should occur: (a) Lessor may cancel or terminate the Leases; (b) upon written
notice to Lessee, declare the entire balance of the unpaid Lease Payments for
the full term of all Leases immediately due and payable, xxx for and receive all
Lease Payments and any other payments then accrued or accelerated under all
Leases or any other agreement plus the estimated fair market value of the
Equipment at the end of the originally scheduled term of all Leases, and all
accelerated Lease Payments and the estimated fair market value of the Equipment
will be discounted to the date of the default at four percent (4.0%) per year,
but only to the extent permitted by law; (c) charge Lessee interest on all
monies due Lessor at the rate of eighteen percent (18%) per annum from the date
of default until paid, but in no
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event more than the maximum rate permitted by law; (d) charge Lessee a
return-check or non-sufficient funds charge ("NSF Charge") to reimburse Lessor
for the time and expense incurred with respect to a check that is returned for
any reason including non-sufficient or uncollected funds, such NSF Charge is
stipulated and liquidated at Twenty Five Dollars ($25.00); (e) require that
Lessee return the Equipment to Lessor and in the event Lessee fails to return
the Equipment, peaceably enter upon the premises with or without legal process
where the Equipment is located and repossess the Equipment; (f) apply any
security deposit to any amounts owing from Lessee to Lessor; and/or (g) setoff
against any account maintained with Lessor or any affiliate of Lessor (including
without limitation Commerce Bank, N.A.) any and all amounts owing from Lessee to
Lessor hereunder or under any Lease. Such return or repossession of the
Equipment will not constitute a termination of the applicable Lease unless
Lessor expressly notifies Lessee in writing. In the event the Equipment is
returned or repossessed by Lessor and unless Lessor has terminated the
applicable Lease, Lessor will sell or re-lease the Equipment to any persons with
any terms Lessor determines, at one or more public or private sales, with or
without notice to Lessee, and apply the net proceeds deducting the costs and
expenses of such sales or re-lease, to Lessee's obligations with Lessee
remaining liable for any deficiency on the Leases and with any excess being
retained by Lessor. The credit for any sums to be received by Lessor from the
Leases during the remaining portion of the Lease Terms shall be discounted to
the commencement date of such Leases at an annual rate equal to the implicit
rate of interest with respect to such Lease. Lessee agrees that if notice of
sale is required by law to be given, seven (7) days notice shall constitute
reasonable notice.
Lessee is also required to pay (i) all costs and expenses incurred by Lessor in
connection with the enforcement of any remedies, including all expenses incurred
in connection with the return or other recovery of any Equipment or other
collateral, sale, re-lease or other disposition (including without limitation
costs of transportation, possession, storage, refurbishing, advertising,
broker's fees and reasonable attorneys' fees), and all other pre-judgment and
post-judgment enforcement related to actions taken by Lessor, and/or any actions
taken by Lessor in any bankruptcy case involving Lessee, this Equipment or other
collateral, and (ii) reasonable attorneys' fees (including consultation,
drafting documents, sending notices or instituting, prosecuting or defending
litigation or arbitration).
Whenever any Lease Payment is not made within ten (10) days of when due, Lessee
agrees to pay Lessor, within one month of the original due date, a late charge
of five percent (5.0%) for each delayed payment, as compensation for Lessor's
internal operating expenses arising as a result of each delayed payment, but
only to the extent permitted by law. This amount is payable in addition to all
amounts payable by Lessee as a result of the exercise of any other remedies.
Lessee agrees that any delay or failure to enforce Lessor's rights under this
Agreement or any Lease does not prevent Lessor from enforcing any rights at a
later time. No right or remedy referred to herein is intended to be exclusive,
but each shall be cumulative and shall be in addition to any other remedy
referred to above or otherwise available at law or in equity, and may be
exercised concurrently or separately from time to time. With respect to any
exercise by Lessor of its right to recover and/or dispose of any Equipment or
other collateral securing Lessee's obligations under any Lease, Lessee
acknowledges and agrees that: (i) Lessor shall have no obligation, subject to
the requirements of commercial reasonableness, to clean up or otherwise prepare
the Equipment or any other collateral for disposition; and (ii) Lessor may
comply with any applicable state or federal law required in connection with the
disposition of the Equipment or other collateral, and any actions taken in
connection therewith shall not be deemed to have adversely effected the
commercial reasonableness of any disposition of such Equipment and/or other
collateral.
15. SECURITY DEPOSIT. Lessor will retain any required security deposit to
insure Lessee's performance of Lessee's obligations. Any security deposit is
non-interest bearing. Lessor may apply any security deposit to cure any default
by Lessee, in which event Lessee will promptly restore any amount so applied. If
Lessee is not in default, any security deposit will be returned to Lessee at the
termination of a Lease.
16. COSTS AND EXPENSES. Lessee shall reimburse Lessor, upon demand, for all
reasonable costs and expenses incurred in connection with this Agreement or any
Lease, including without limitation attorneys' fees, processing fees, filing
fees, overnight delivery costs, long distance telephone charges, copying costs
and the cost of obtaining credit reports, certified articles of organization,
good standing certificates, lien searches and UCC-1 title insurance.
17. REPRESENTATIONS AND WARRANTIES. Lessee warrants and represents to
Lessor that (a) the Equipment will be used for business purposes, and not for
personal, family or household purposes, (b) Lessee is an entity duly organized,
validly existing and in good standing with the laws of the jurisdiction
specified below Lessee's signature, and the organizational number assigned to
Lessee in such jurisdiction, if any, is as specified below Lessee's signature,
(c) Lessee's full and accurate legal name is as first provided above, (d) Lessee
has the power and capacity to enter into this Agreement, all documents related
to the purchase of the Equipment and any other documents required to be
delivered in connection herewith (collectively, the "Documents"), and (e) the
Documents have been duly authorized, executed and delivered by Lessee and
constitute valid, legal and binding agreements, enforceable in accordance with
their terms, except to the extent that the enforcement of remedies herein or
therein provided may be limited under applicable bankruptcy and insolvency laws.
18. FINANCIAL INFORMATION. At Lessor's request, Lessee shall provide Lessor
with (i) audited or reviewed (as required by Lessor) annual consolidated and
consolidating financial statements, prepared in accordance with generally
accepted accounting principles applied on a basis consistent with the most
recent audited or reviewed, as applicable, financial statements provided to
Lessor by Lessee, including balance sheets, income and cash flow statements,
accompanied by the unqualified report thereon of an independent certified public
accountant reasonably acceptable to Lessor, as soon as available, and in any
event within 120 days after the end of each of Lessee's fiscal year; (ii) by
April 15 of each calendar year, each guarantor's, if any, annual financial
statement for the immediately preceding calendar year and copies of such
guarantor's state and federal tax returns for the immediately preceding calendar
year; and (iii) such other reports and financial information as may be requested
by Lessor.
19. UCC FILINGS. Lessee authorizes Lessor to file a financing statement
with respect to the Equipment with or without Lessee's signature where permitted
by the UCC and xxxxx Xxxxxx the right to sign such financing statement on
Lessee's behalf. The filing of a financing statement is not to be construed as
evidence that any security interest was intended to be created, but only to give
public notice of Lessor's ownership of the Equipment. If a Lease is deemed at
any time to be one intended as security then Lessee grants Lessor a first
priority security interest in the Equipment together with all related software
(embedded therein or otherwise) and general intangibles, and all additions,
accessories, attachments and accessions thereto whether furnished by the
supplier of the Equipment, all subleases, chattel paper, accounts and security
deposits relating thereto, and any and all substitutions, replacements or
exchanges for such item of Equipment, in each such case in which Lessee shall
from time to time acquire an interest, and any and all proceeds (including
insurance proceeds) of the Equipment and other collateral in and against which a
security interest is granted hereunder. 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 from time to time may reasonably request in order to carry out the intent
and purpose of this Agreement and to establish and protect the rights and
remedies created or intended to be created in favor of Lessor under the
Documents (including without limitation (i) lien searches and (ii) such UCC
financing statements, fixture filings and waivers as reasonably may be required
by Lessor in connection with any change in circumstances relating to Lessee, the
Equipment 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.
20. NOTICE. Written notices will be deemed to have been given when
delivered in person or if sent by certified mail, postage pre-paid return
receipt requested, or by reliable nationally recognized overnight courier,
addressed to the recipient at its address above or at any other address
subsequently provided in writing.
21. UCC - ARTICLE 2A PROVISIONS. Lessee agrees that these Leases are
"finance leases" as that term is defined in Article 2A of the Uniform Commercial
Code ("UCC"). Lessee acknowledges that Lessor has given Lessee the name of the
Supplier of the Equipment for each Lease. Lessor hereby notifies Lessee that
Lessee may have rights under the contract with the Supplier and Lessee may
contact the Supplier for a description of any rights or warranties that Lessee
may have under this supply contact. Lessee also waives any and all rights and
remedies granted Lessee under Sections 2A-508 through 2A-522 of the UCC.
22. CHOICE OF LAW. This Agreement and all Leases were made in the
Commonwealth of Pennsylvania; and they are to be performed in the Commonwealth
of Pennsylvania by reason of the Lease Payments Lessee is required to pay Lessor
in Commonwealth of Pennsylvania. This Agreement and all
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Leases shall in all respects be interpreted and all transactions subject to this
Agreement and all rights and liabilities of the parties under this Agreement and
all Leases shall be determined and governed as to their validity,
interpretation, enforcement and effect by the laws of the Commonwealth of
Pennsylvania except for local filing requirements. Lessee consents to and agree
that personal jurisdiction over Lessee and subject matter jurisdiction over the
Equipment shall be with the courts of the Commonwealth of Pennsylvania or the
United States District Court for the Eastern District of Pennsylvania solely at
Lessor's option with respect to any provision of this Agreement or any Lease.
Lessee also waives Lessee's right to a trial by jury.
23. ENTIRE AGREEMENT; SEVERABILITY; WAIVERS. This Agreement and all Leases
contain the entire agreement and understanding of the parties hereto. No
agreements or understandings are binding on the parties unless set forth in
writing and signed by the parties. Any provision of this Agreement or any Lease
which for any reason may be held unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective without invalidating the remaining provisions
of this Agreement and the Leases.
24. CONFESSION OF JUDGMENT. THE FOLLOWING SETS FORTH A WARRANT OF AUTHORITY
FOR ANY ATTORNEY TO CONFESS JUDGMENT AGAINST LESSEE. IN GRANTING THIS WARRANT OF
ATTORNEY TO CONFESS JUDGMENT AGAINST LESSEE, LESSEE, FOLLOWING CONSULTATION WITH
(OR DECISION NOT TO CONSULT WITH) SEPARATE COUNSEL FOR LESSEE, AND WITH
KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY WAIVES ANY AND ALL RIGHTS LESSEE
HAS, OR MAY HAVE, TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING BEFORE ENTRY OF
JUDGMENT UNDER THE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE
COMMONWEALTH OF PENNSYLVANIA. LESSEE ACKNOWLEDGES THAT PURSUANT TO THIS WARRANT
OF ATTORNEY, LESSOR IS AUTHORIZED TO ENTER A JUDGMENT AGAINST LESSEE WHICH WILL
GIVE LESSOR A LIEN AGAINST REAL PROPERTY AND WHICH MAY PERMIT LESSOR TO,
UTILIZING THE POWER OF STATE GOVERNMENT, SEIZE PERSONAL PROPERTY INCLUDING
LESSEE'S BANK ACCOUNTS. LESSEE SPECIFICALLY ACKNOWLEDGES THAT LESSOR HAS RELIED
ON THIS WARRANT OF ATTORNEY IN ENTERING INTO THIS LEASE.
LESSEE HEREBY EMPOWERS ANY PROTHONOTARY, CLERK, OR ATTORNEY OF ANY COURT OF
RECORD TO APPEAR FOR LESSEE AFTER AN EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT HEREUNDER IN THE
COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE AND WITH THREE (3) BUSINESS DAYS'
NOTICE TO LESSEE CONFESS JUDGMENT AGAINST LESSEE FOR ALL, OR ANY PART OF, THE
UNPAID OBLIGATIONS HEREUNDER TOGETHER WITH OTHER EXPENSES INCURRED IN CONNECTION
THEREWITH AND ATTORNEYS' FEES OF IN NO EVENT LESS THAN FIVE THOUSAND DOLLARS
($5,000), AND FOR SUCH PURPOSE THE ORIGINAL OR ANY PHOTOCOPY OF THIS LEASE AND
AN AFFIDAVIT OF LESSEE OR LESSEE'S COUNSEL AVERRING TO THE EVENT OF DEFAULT
SHALL BE A GOOD AND SUFFICIENT WARRANT OF ATTORNEY. SUCH AUTHORIZATION SHALL NOT
BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID
FROM TIME TO TIME. LESSEE HEREBY WAIVES ALL ERRORS AND RIGHTS OF APPEAL, AS WELL
AS RIGHTS TO STAY OF EXECUTION AND EXEMPTION OF PROPERTY, IN ANY ACTION TO
ENFORCE ITS LIABILITY HEREON.
THIS AGREEMENT IS NOT BINDING UNTIL ACCEPTED BY LESSOR.
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as of
the date first set forth above.
LESSOR:
COMMERCE COMMERCIAL LEASING, LLC
By: /s/ Xxxxxxx Frimmofredo
---------------------------------
Name: Xxxxxxx Frimmofredo
----------------------------------
Title: Vice President
---------------------------------
LESSEE:
PENNEXX FOODS, INC.
------------------
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------
Title: President
----------------------------------
Jurisdiction of Organization: Pennsylvania
Organizational Number: 2888377
Chief Executive Office: 0000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
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