EXHIBIT 10.7
FIRST AMENDMENT TO LEASE entered into as of June 4, 1998 by
and between BA LEASING & CAPITAL CORPORATION, a California corporation,
with its principal office at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 ("Lessor") and GARDENBURGER, INC., an
Oregon corporation, with its principal office at 0000 X.X. Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 ("Lessee") with reference to the
following:
A. Lessor and Lessee have entered into a Lease Agreement dated as
of December 17, 1997, and an Appendix No. 1 to the Lease
Agreement dated as of December 17, 1997 (together the "Lease";
all defined terms therein not otherwise defined herein being
used with their meanings as defined therein); and
X. Xxxxxx and Lessee now desire to amend the Lease as hereinafter
set forth:
NOW, THEREFORE, the parties hereto agree as follows:
1. In paragraph D entitled UTILIZATION PERIOD of the Appendix to
the Lease, replace the date "April 15, 1998 " with "June 15,
1998."
2. In paragraph E entitled RENT, subparagraph E 1. entitled
ADVANCE RENT of the Appendix to the Lease, delete the first
sentence and replace with:
"Advance Rent shall accrue from, and including, the date of
any Advance with respect to a Unit pursuant to an Advance
Request to, but excluding, it "Base Date."
Except as is herein specifically amended, all of the terms, covenants,
and provisions of the Lease remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Lease as of the day and year written above.
GARDENBURGER, INC. BA LEASING & CAPITAL CORPORATION
By /s/ Xxxxxxx X. Xxxxx By /s/ Xxxxxx Xxxxxx
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Title: Chief Financial Officer Title: Vice President
By /s/ Xxxxxx Xxxxxxx
Title: Assistant Vice President
ACCEPTANCE CERTIFICATE NO. 002
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Reference is made to the Lease Agreement dated as of December 17, 1997
between BA LEASING & CAPITAL CORPORATION, as Lessor, and GARDENBURGER, INC., as
Lessee (together with Appendix No. 1 thereto dated December 17, 1997, the
"Lease"); capitalized terms not otherwise defined herein having the same
meanings as in the Lease). The Lease is incorporated herein by reference.
1. ACCEPTANCE; CONFIRMATIONS.
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Lessee confirms that (A) the items of equipment delivered in Annex A
have been delivered to, are in the possession of and are accepted by Lessee for
leasing under, and constitute "Units" subject to and governed by, the Lease, (B)
the Units (I) have been fully inspected by qualified agents of Lessee and are in
good order, operating condition and repair, (ii) have been properly installed
(subject only to any minor undischarged obligations of suppliers, manufacturers
or installers thereof to promptly update and conform the same as provided by
their respective agreements and warranties), (iii) meet all recommended or
applicable safety standards, (iv) are, as of the Delivery Date set forth below,
available for use and service by Lessee and Lessor and (v) have been marked or
labeled showing Lessor's interest in the form and to the extent required by the
Lease, (C) the dollar amounts set forth in Annex A with respect to such
equipment are correct and (D) Lessee must pay the rent and all other sums
provided for in the Lease with respect to such Units.
2. DELIVERY DATE.
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The Delivery Date of the Units is June 5, 1998.
3. PURCHASE PRICE.
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The Purchase Price of the Units is $3,300,779.50, as set forth in Annex
A.
Total Amount: $3,300,779.50
Amount Lessor paid 12/31/97: $2,449,425.24
Balance Due to Lessee: $ 851,354.26
4. SCHEDULE.
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The Base Date and the Base Rent and any Interim Rent for the Units will
be determined pursuant to the relevant Appendix and set forth in a Schedule to
this Acceptance Certificate.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Acceptance
Certificate as of the Delivery Date set forth above.
Lessor: Lessee:
BA LEASING & CAPITAL CORPORATION GARDENBURGER, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Title: Vice President Title: Chief Financial Officer
SCHEDULE NO. 2
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SCHEDULE (this "Schedule") dated June 12, 1998 to Acceptance
Certificate No. 2 dated June 12, 1998 (the "Acceptance Certificate") to the
Lease Agreement dated as of December 17, 1997 between BA LEASING & CAPITAL
CORPORATION, as Lessor, and GARDENBURGER, INC., as Lessee (together with
Appendix No. 1 thereto, the "Lease"; capitalized terms not otherwise defined
herein having the same meanings as in the Lease).
1. SCHEDULING DATE; BASE DATE.
--------------------------
The Scheduling Date of the equipment described in the Acceptance
Certificate (the "Units") is dated June 12, 1998 . The Base Date for the Units
is dated July 1, 1998.
2. INDEX RATE.
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The Index Rate on the Scheduling Date is 5.72% per annum.
3. RENT.
----
The Base Rent for the Units is comprised of 28 QUARTERLY installments,
each in the amount of $134,065.97, with the first such installment due on
OCTOBER 1, 1998. Lessor will invoice Lessee for any Advance Rent due as
described in the terms of the Appendix. Advance Rent shall accrue from, and
including, the date of any Advance with respect to a Unit pursuant to an Advance
Request to, but excluding, it Base Date.
4. CASUALTY VALUES.
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As set forth in Annex 1 to this Schedule.
5. CHATTEL PAPER COUNTERPARTS.
--------------------------
Two counterparts of this Schedule have been executed by Lessor and
Lessee. One counterpart has been prominently marked "Lessor's Copy". One
counterparts has been prominently marked "Lessee's Copy". Only the counterpart
marked "Lessor's Copy" shall evidence a monetary obligation of Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Schedule as of
the date set forth above.
Lessor: Lessee:
BA LEASING & CAPITAL CORPORATION GARDENBURGER, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Title: Vice President Title: Chief Financial Officer
ANNEX 1
CASUALTY VALUES
SCHEDULE NO. 002
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The Casualty Value of each Unit shall be the percentage of the Purchase
Price set forth below opposite the Base Rent payment due on the Base Rent
payment date next following the date of the Casualty Occurrence. If the Casualty
Occurrence takes place before the Base Date, the Casualty Value shall be the
percentage of the Purchase Price set forth opposite the first Base Rent payment
number. If the Casualty Occurrence takes place after the last Base Rent payment
date, the Casualty Value shall be the percentage of the Purchase Price set forth
opposite such last Base Rent payment number.
Base Rent (excluding base rent)
Payment Date % of Purchase Price
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Jul-01-98 0 105.00000
Oct-01-98 1 102.73600
Jan-01-99 2 100.38800
Apr-01-99 3 97.96400
Jul-01-99 4 95.45700
Oct-01-99 5 92.87300
Jan-01-00 6 90.20900
Apr-01-00 7 87.47000
Jul-01-00 8 84.66500
Oct-01-00 9 81.79200
Jan-01-01 10 78.85000
Apr-01-01 11 75.84100
Jul-01-01 12 72.77400
Oct-01-01 13 69.64700
Jan-01-02 14 66.45900
Apr-01-02 15 63.20700
Jul-01-02 16 59.90500
Oct-01-02 17 56.54700
Jan-01-03 18 53.13200
Apr-01-03 19 49.65500
Jul-01-03 20 46.12600
Oct-01-03 21 42.53800
Jan-01-04 22 38.89100
Apr-01-04 23 35.17900
Jul-01-04 24 31.41200
Oct-01-04 25 27.58300
Jan-01-05 26 23.69300
Apr-01-05 27 19.73600
Jul-01-05 28 FMV
XXXX OF SALE
For valuable consideration GARDENBURGER, INC. ("Seller") sells to BA
LEASING & CAPITAL CORPORATION ("Buyer"), the property listed on Annex A (the
"Property").
Seller covenants and warrants that:
(1) It is the owner of, and has absolute title to, the Property
which is free and clear of all claims, liens and encumbrances;
(2) It has the present right, power, and authority to sell the
Property to Buyer;
(3) This Xxxx of Sale is a legal, valid and binding obligation of
Seller;
(4) Both the Property and Lessee's right, title and interest in
the Property are free from all claims, liens, security
interests and encumbrances; and
(5) The purchase price paid by Buyer for the Property is equal to
its fair market value.
Seller shall forever warrant and defend the sale of the Property to
Buyer, its successors and assigns, against any person claiming an interest in
the Property.
This Xxxx of Sale is binding on the successors and assigns of Seller
and inures to the benefit of the successors and assigns of Buyer.
Dated June 15, 1998.
GARDENBURGER, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Chief Financial Officer
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By: ________________________
Title: ________________________
