Equipment Lease - FINOVA Capital Corp. and Poore Brothers Arizona Inc.
FINOVA
FINOVA Capital Corporation
95 N. Route 17 South
P.O. Box 907
Paramus, New Jersey 07653
Telephone (201) 712-3300
EQUIPMENT LEASE
No. 5778300
FINOVA Capital Corporation, (herein called "Lessor"), with its
principal place of business at Dial Tower, Dial Corporation Center,
Phoenix, Arizona, hereby agrees to lease to the Lessee named on the
signature page hereof (herein called "Lessee") and Lessee hereby
agrees to lease and rent from Lessor, the equipment described on any
attached schedule(s), (herein with all replacement parts, repairs,
additions, and accessories called "Equipment"), on the terms and
conditions hereof and as set forth on any schedule (herein called
"Schedule"). Lessee agrees that, at the option of Lessor, any Schedule
shall be a separately enforceable Lease which incorporates all of the
terms and conditions set forth herein.
1. ORDERING AND INSTALLATION OF EQUIPMENT. Lessee hereby requests Lessor to
order the Equipment from a supplier (herein called "Supplier"), and to arrange
for delivery thereof to Lessee at Lessee's expense. Lessee agrees to install or
cause the Equipment to be installed at the location set forth on the Schedule
thereof (the "Location") at the Lessee's cost.
2. DISCLAIMER OF WARRANTIES AND WAIVER AND DEFENSES.
LESSOR, NEITHER BEING THE MANUFACTURE, NOR A SUPPLIER, NOR A DEALER IN THE
EQUIPMENT, MAKES NO WARRANTIES, EXPRESS OR IMPLIED, TO ANYONE, AS TO DESIGN,
CONDITION, CAPACITY, PERFORMANCE OR ANY OTHER ASPECT OF THE EQUIPMENT OR ITS
MATERIAL OR WORKMANSHIP. LESSOR ALSO DISCLAIMS ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR THE USE OR PURPOSE WHETHER ARISING BY OPERATION OF LAW OR
OTHERWISE. LESSOR FURTHER DISCLAIMS ANY LIABILITY FOR LOSS, DAMAGE OR INJURY TO
LESSEE OR THIRD PARTIES AS A RESULT OF ANY DEFECTS, LATENT OR OTHERWISE, IN THE
EQUIPMENT WHETHER ARISING FROM THE APPLICATION OF THE LAWS OF STRICT LIABILITY
OR OTHERWISE. AS TO THE LESSOR, LESSEE LEASES THE EQUIPMENT "AS IS". LESSEE
ACKNOWLEDGES THAT LESSEE HAS SELECTED THE SUPPLIER OF THE EQUIPMENT AND THAT
LESSOR HAS NOT RECOMMENDED SUPPLIER. LESSOR SHALL HAVE NO OBLIGATION TO INSTALL,
MAINTAIN, ERECT, TEST, ADJUST OR SERVICE THE EQUIPMENT. REGARDLESS OF CAUSE,
LESSEE AGREES NOT TO ASSERT ANY CLAIM WHATSOEVER AGAINST LESSOR FOR LOSS OF
ANTICIPATORY PROFITS OR ANY OTHER INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES,
NOR SHALL LESSOR BE RESPONSIBLE FOR ANY DAMAGES OR COSTS WHICH MAY BE ASSESSED
AGAINST LESSEE IN ANY ACTION FOR INFRINGEMENT OF ANY UNITED STATES LETTERS
PATENT. LESSOR MAKES NO WARRANTY AS TO THE TREATMENT OF THIS LEASE FOR TAX OR
ACCOUNTING PURPOSES. If the Equipment is unsatisfactory for any reason, Lessee
shall make claim on account thereof solely against the manufacturer, the
Supplier or any dealer and shall nevertheless pay Lessor all rent and other
charges payable under the Lease. Lessor hereby assigns to
<PAGE>
Lessee, any rights which Lessor may have against the Supplier, the manufacturer
or any dealer for breach of warranty or other representations respecting the
Equipment. Lessee understands and agrees that neither the Manufacturer, the
Supplier, any dealer nor any agent of the foregoing is an agent of Lessor or is
authorized to waive or alter any term or condition of this Lease.
3. TERM AND RENT. The Lease term of each Schedule shall commence as of the
date that any of the Equipment under such Schedule is delivered to Lessee or
Lessee's Agent, or such later date as Lessor designates in writing (the
"Commencement Date") and shall continue until the obligations of Lessee under
this Lease shall have been fully performed. Advance rentals shall not be
refundable if the Lease term for any reason does not commence or if this Lease
or any Schedule is duly terminated by Lessor. The sum of all periodic
installments of rent indicated on any Schedule shall constitute the aggregate
rent reserved. The aggregate rent reserved shall be payable periodically in
advance, in the installments indicated on any Schedule, the first such payment
being due on the Commencement Date, or such later date as Lessor designates in
writing (the "First Payment Date"), and subsequent payments shall be due on the
same day of each successive rent period thereafter until the balance of the rent
and any charges or expenses payable by Lessee under this Lease shall have been
paid in full. If the First Payment Date is later than the Commencement Date,
Lessee shall, on the First Payment Date, in addition to the periodic rent, pay
Lessor interim rent from the Commencement Date to the First Payment Date at a
daily rate equal to the periodic installment of rent divided by the number of
days of the period. Lessee's obligation to pay all rent shall be absolute and
unconditional and not subject to any abatement, set-off, defense or counterclaim
for any reason whatsoever.
4. NON-CANCELABLE LEASE. NEITHER THE LEASE NOR ANY SCHEDULE CAN BE CANCELED
BY LESSEE DURING THE TERM HEREOF OR THEREOF.
5. LESSOR TERMINATION BEFORE EQUIPMENT ACCEPTANCE. If within ninety (90)
days from the date Lessor orders the Equipment, the same has not been delivered,
installed and accepted by Lessee (in form satisfactory to Lessor) for all
purposes of this Lease, Lessor may, on ten (10) days' written notice to Lessee,
terminate this Lease and the related Schedule and its obligations to Lessee.
6. TITLE, RECORDING, DOCUMENTATION, ADMINISTRATIVE FEES AND PERSONAL
PROPERTY. The Equipment is, and shall at all times remain, the property of
Lessor, and except as herein set forth, Lessee shall have no right, title or
interest therein. If Lessor supplies Lessee with labels indicating that the
Equipment is owned by Lessor, Lessee shall affix such labels to and keep them in
a prominent place on the Equipment. Lessee hereby authorizes Lessor to insert in
this Lease or any Schedule the serial numbers, and other identification data, of
Equipment when determined by Lessor. In order to perfect Lessor's security
interest in the Equipment in the event this Lease is determined to be a security
agreement, Lessee hereby grants Lessor a security interest in the Equipment and
authorizes Lessor, at Lessee's expense, to cause this Lease, or any statement or
other instrument in respect of this Lease showing the interest of Lessor in the
Equipment, including Uniform Commercial Code Financing Statements, to be filed
or recorded, and grants Lessor, where permitted, the right to execute Lessee's
name thereto. Lessee agrees to pay or reimburse Lessor for its costs and out of
the pocket expenses relating to any searches undertaken by Lessor, or any
filing, recording, stamp fees or taxes arising from the filing or recording of
any such instrument or statement and any other costs, expenses or charges
incurred by Lessor in documenting, administering and terminating this Lease.
Lessee shall, as its expense, protect and defend Lessor's title to the Equipment
against all persons claiming against or through Lessee, at all times keeping the
Equipment free from any legal process or encumbrance whatsoever including but
not limited to liens, attachments, levies and executions, and shall give Lessor
immediate written notice thereof and shall indemnify Lessor from any loss caused
thereby. Upon Lessor's request, Lessee shall execute or obtain from third
parties and deliver to Lessor such further instruments and assurances as Lessor
deems necessary or advisable for the confirmation or perfection of Lessor's
rights hereunder. The Equipment is, and shall at all times be and remain,
personal property notwithstanding that the Equipment or any part thereof may now
be, or hereafter become, in any manner affixed or attached to real property or
any improvements thereon.
2
<PAGE>
7. CARE, USE, LOCATION AND ALTERATION. Lessee shall assess sole cost and
expense, service, repair, overhaul and maintain each item of Equipment in good
operating order and in the condition when delivered to Lessee, ordinary wear and
tear expected. All such maintenance shall be consistent with prudent industry
practice and all maintenance practices recommended by the Supplier or
manufacturer and meet all legal and regulatory requirements. Upon request,
Lessee shall provide Lessor with evidence of such compliance. Lessee shall
maintain logs of the maintenance and service of the Equipment and permit Lessor,
on reasonable prior notice to inspect the Equipment and the right to make copies
of the logs and service reports. Lessee shall forthwith correct any deficiencies
disclosed by such inspection. Lessee shall use the Equipment solely for business
purposes, in compliance with all applicable laws, ordinances, regulations, and
the conditions of all insurance policies required to be maintained by Lessee
pursuant to the Lease. Lessee shall make all additions, modifications and
improvements to the Equipment required by applicable law and except for such
required changes, shall not alter the Equipment without Lessor's prior written
consent. Lessee shall replace all worn, lost, stolen or destroyed parts of the
Equipment with replacement parts at least meeting the standards required herein,
all of which shall become the property of Lessor, except for such additions,
modifications and improvements that can be readily removed without causing
damage to, or impairing the commercial value or utility of, such equipment,
which shall remain Lessee's property and may be removed by Lessee at its expense
before the Equipment is surrendered to Lessor. Lessee shall repair all damage to
any item resulting from such installation or removal. If Lessee has not
purchased an item of Equipment pursuant to any option to purchase granted to
Lessee at the end of the Lease term for such item, Lessor shall be entitled to
purchase any such addition, modification and improvements from Lessee for its
then fair market value. The Equipment shall not be removed from the Location
without Lessor's prior written consent.
8. NOTICE AND CONDITIONS OF REDELIVERY. Lessee shall provide Lessor not
less than One Hundred Twenty (120) days prior written notice of its intention to
exercise its option to purchase the Equipment if granted on the related Schedule
or return the Equipment to Lessor ( the "Required Notice"). If Lessee shall have
timely provided such Required Notice and has elected to return the Equipment to
Lessor upon the expiration of the Term of the Schedule, Lessee shall, at its
sole expense, return the Equipment covered thereby, freight prepaid, to Lessor
in a manner and to a location within the continental United States designated by
Lessor in the condition and repair required by the terms of this Lease, free of
all liens and advertising insignia. If Lessee shall fail to return any item of
Equipment as provided herein, Lessee shall be responsible for all costs and
expense incurred by Lessor in returning the Equipment to such required condition
or any reduction in value as a result thereof. If the Equipment or its component
parts were packed or crated for shipping when new, Lessee shall pack or crate
the same carefully and in accordance with any recommendations of the Supplier or
manufacturer before redelivering the item to Lessor. Lessee shall also deliver
to Lessor the plans, specifications, operating manuals, software documentation,
discs, warranties and other documents furnished by the manufacturer or Supplier
of the Equipment and such other documents in Lessee's possession relating to the
maintenance and method of operation of such Equipment. At Lessor's written
request, Lessee shall provide free storage for any item of Equipment for a
period not to exceed sixty (60) days after the expiration of the Schedule term
before returning such item to Lessor and permit Lessor access to the Equipment
for inspection and/or resale. If Lessee fails to timely provide such Required
Notice the Equipment shall continue to be held and Leased hereunder, and this
Lease and the related Schedule term shall thereupon be extended for a period
ending one hundred twenty (120) days following receipt by Lessor of Lessee's
notice of intent to return the Equipment, for the fair market rental value of
the Equipment as determined by Lessor not to exceed the periodic installment of
rent with respect to such Equipment for such period. If Lessee has timely
provided the Required Notice but upon expiration Lessee does not immediately
return the Equipment to Lessor, (unless otherwise requested by Lessor) the
Equipment shall continue to be held and leased hereunder, and this Lease and the
related Schedule term shall thereupon be extended for successive thirty (30) day
periods at the fair market rental value of the Equipment as determined by Lessor
not to exceed the periodic installment of rent with respect to such Equipment
for such period.
9. RISK OF LOSS. Lessee shall bear all risks of loss of and damage to the
Equipment from any cause and the occurrence of such loss or damage shall not
relieve Lessee of any obligation hereunder. In the event of loss or damage,
Lessee, at its option, provided it is not in default hereunder, otherwise at
3
<PAGE>
Lessor's option, shall: (a) place the damaged Equipment in good repair,
condition and working order; or (b) replace lost or damaged Equipment with like
equipment in good repair, condition and working order with documentation
creating clear title thereto in Lessor; or (c) pay to Lessor the then present
value computed at five (5%) percent per annum of both the unpaid balance of the
aggregate rent reserved under the Lease and related Schedule and the value of
Lessor's residual interest in the Equipment. Upon Lessor's receipt of such
payment, Lessee and/or Lessee's insurer shall be entitled to Lessor's interest
in said item for salvage purpose, in its then condition and location, as is,
without warranty, express or implied.
10. INSURANCE. Until redelivered to Lessor, Lessee shall maintain and
deliver evidence to Lessor of such insurance required by, written by insurers,
and in amounts satisfactory to Lessor. Should Lessee fail to provide such
insurance coverage, Lessor may obtain coverage for part or all of the term of
this Lease or any Schedule or such period beyond the term as is required by the
insurance company issuing such coverage protecting interests of Lessor and
Lessee or the interest of Lessor only. The proceeds of such insurance, at the
option of Lessee, provided it is not in default hereunder, otherwise at Lessor's
option, shall be applied toward (i) the replacement, restoration or repair of
the Equipment or (ii) payment of the obligations of Lessee hereunder. Lessee
hereby appoints Lessor as Lessee's attorney-in-fact to make claims for, receive
payment of, and execute and endorse all documents, checks, or drafts for loss or
damage under any said insurance policies.
11. NET LEASE: TAXES. Lessee intends the rental payments hereunder to be
net to Lessor, and Lessee shall pay all sales, use, excise, stamp, documentary
and ad valorem taxes, license and registration fees, assessments, fines,
penalties and similar charges imposed on the ownership, possession or use of the
Equipment during the term of this Lease or any Schedule; shall pay all taxes
(except Lessor's Federal or State net income taxes) imposed on Lessor or Lessee
with respect to the rental payments hereunder, and shall reimburse Lessor upon
demand for any taxes paid by or advanced by Lessor. Unless Lessee is otherwise
directed by Lessor, in writing, Lessor shall file for and pay all personal
property taxes assessed with respect to the Equipment during the term of this
Lease and Lessee shall, upon Lessor's demand, forthwith reimburse Lessor for the
full amount of such taxes without regard to any discounts obtained by Lessor due
to early payment or otherwise. Lessor may if it elects, estimate such personal
property taxes and bill Lessee periodically in advance therefor.
12. INDEMNITY. Lessee shall hold Lessor harmless from, indemnify and defend
Lessor against, any and all claims, actions, suits, proceedings, costs expenses,
damages and liabilities, including attorney's fees arising out of, connected
with or resulting from the Equipment or this Lease or any Schedule, including,
without limitation, the manufacturer, selection, delivery, possession, use,
operation or return of the Equipment. These indemnities shall survive the
termination or expiration of this Lease or any Schedule.
13. DEFAULT AND REMEDIES. If (i) Lessee defaults in any payment required
under this Lease or any Schedules or under any other lease or agreement between
Lessor and Lessee, or (ii) Lessee breaches any of the representations or
warranties contained herein or fails to perform any of the terms, covenants or
conditions of this Lease or any Schedule or (iii) a petition in bankruptcy,
arrangement, insolvency or reorganization is filed by or against Lessee or any
guarantor of Lessee's obligations hereunder, or (iv) Lessee or any guarantor of
Lessee's obligations makes an assignment for the benefit of creditors, or (v)
without Lessor's written consent, Lessee sells all or a substantial part of
Lessee's assets or a majority of Lessee's voting stock is transferred, or (vi)
during the term of the Lease or any Schedule there is a material adverse change
in the financial condition of Lessee or any guarantor of Lessee's obligation
then Lessor may, to the extent permitted by law, exercise any one or more of the
following remedies: (a) to declare the entire balance of rent for the full term
of any or all Schedules covered hereby immediately due and payable and to
similarly accelerate the balance under any other leases or agreements between
Lessor and Lessee without notice or demand, (b) to sue for and recover all
rents, and other monies due and to become due under any or all Schedules
hereunder and the residual value of the Equipment covered thereby discounted to
the date of default at five (5%) percent per annum; (c) to require Lessee at
Lessee's expense, to assemble all the Equipment at a place reasonably designated
by Lessor, (d) to remove any physical obstructions for removal of the Equipment
from the place where the Equipment is located and take possession of any or all
items of Equipment, without demand or notice,
4
<PAGE>
whatever same may by located, disconnecting and separating all such Equipment
from any other property, with or without any court order or pre- taking hearing
or other process of law, it being understood that facility of repossession in
the event of default is a basis for the financial accommodation reflected by
this Lease. Lessee hereby waives any and all damages occasioned by such
retaking. Lessor may, at its option, use, ship, store, repair or lease all
Equipment so removed and sell or otherwise dispose of any such Equipment at a
private or public sale. Lessor may expose and resell the Equipment at Lessee's
premises at reasonable business hours without being required to remove the
Equipment. In the event Lessor takes possession of the Equipment, Lessor shall
give Lessee credit for any sums received by Lessor from the sale, or present
value of the rental, of the Equipment computed at the implicit rate of the
Schedule after deduction of the expenses of the sale or rental. Lessee shall
also be liable for and shall pay to Lessor on demand (a) all expenses incurred
by Lessor in connection with the enforcement of any of Lessor's remedies,
including all expenses of repossession, storing, shipping, repairing and selling
the Equipment, (b) Lessor's reasonable attorney's fees and (c) interest on all
sums due Lessor from the date of default until paid at the rate of one and
one-half (1.5%) percent per month, but only to the extent permitted by law.
Lessor and Lessee acknowledge the difficulty in establishing a value for the
unexpired Lease term and owing to such difficulty agree that the provision of
this paragraph represents an agreed measure of damages and are not to be deemed
a forfeiture or penalty.
Whenever any payment hereunder is not made by Lessee within ten (10) days when
due, Lessee agrees to pay to Lessor, not later than one month thereafter, an
amount calculated at the rate of ten cents per one dollar of each such delayed
payment, as an administrative fee to offset Lessor's collection costs, but only
to the extent allowed by law. Such amount shall be payable in addition to all
amounts payable by Lessee as a result of exercise of any of the remedies herein
provided.
All remedies of Lessor hereunder are cumulative, are in addition to any other
remedies provided for by law, and may, to the extent permitted by law, be
exercised concurrently or separately. The exercise of any one remedy shall not
be deemed to be an election of such remedy or to preclude the exercise of any
other remedy. No failure on the part of the Lessor to exercise and no delay in
exercising any right or remedy shall operate as a waiver thereof or modify the
terms of this Lease. A waiver of default by Lessor on any one occasion shall not
be deemed a waiver of any other or subsequent default. In the event this Lease
is determined to be a security agreement, Lessor's recovery shall in no event
exceed the maximum permitted by law.
14. PERFORMANCE BY LESSOR OF LESSEE'S OBLIGATIONS. In the event Lessee
fails to comply with any provision of this Lease, Lessor shall have the right,
but shall not be obligated, to effect such compliance on behalf of Lessee upon
ten (10) days prior written notice to Lessee. In such event, all monies advanced
or expended by Lessor, and all expenses of Lessor in effecting such compliance,
shall be deemed to be additional rent, and shall be paid by Lessee to Lessor at
the time of the next periodic payment of rent.
15. ASSIGNMENT: QUIET ENJOYMENT. LESSOR MAY, WITHOUT LESSEE'S CONSENT,
ASSIGN THIS LEASE OR ANY SCHEDULE AND/OR THE RENTALS DUE THEREUNDER OR SELL OR
GRANT A SECURITY INTEREST IN THE EQUIPMENT AND LESSEE AGREES THAT NO ASSIGNEE OF
LESSOR SHALL BE BOUND TO PERFORM ANY DUTY, COVENANT OR CONDITION OR WARRANTY
(EXPRESS OR IMPLIED) ATTRIBUTABLE TO LESSOR AND LESSEE FURTHER AGREES NOT TO
RAISE ANY CLAIM OR DEFENSE ARISING OUT OF THIS LEASE OR OTHERWISE AGAINST LESSOR
AS A DEFENSE, COUNTERCLAIM OR OFFSET TO ANY ACTION BY ANY ASSIGNEE
5
<PAGE>
HEREUNDER. NOTWITHSTANDING ANY ASSIGNMENT BY LESSOR, PROVIDING LESSEE IS NOT IN
DEFAULT HEREUNDER, LESSEE SHALL QUIETLY ENJOY USE OF THE EQUIPMENT, SUBJECT TO
THE TERMS AND CONDITIONS OF THE LEASE.
WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, LESSEE SHALL NOT ASSIGN, TRANSFER,
PLEDGE, HYPOTHECATE OR OTHERWISE DISPOSE OF THE EQUIPMENT OR ANY INTEREST
THEREIN, OR SUBLET OR LEND EQUIPMENT OR PERMIT IT TO BE USED BY ANYONE OTHER
THAN LESSEE OR LESSEE'S EMPLOYEES.
16. NOTICES. Service of all notices under this Lease shall be sufficient if
given personally or mailed to the intended party at its respective address set
forth herein, or at such other address as said party may provide in writing from
time to time. Any such notice mailed to said address shall be effective three
(3) days following the date when deposited in the United States mail, duly
addressed and with postage prepaid.
17. REPRESENTATIONS AND COVENANTS OF LESSEE. Lessee represents that all
financial and other information furnished to Lessor was, at the time of
delivery, true and correct. During the term of the Lease, Lessee shall provide
Lessor, on an ongoing basis, audited annual financial statements within ninety
(90) days of each fiscal year end and quarterly financial statements within
sixty (60) days of each quarter signed by Lessee's chief financial officer and
such interim financial statements as Lessor requests.
18. GOVERNING LAW; JURISDICTION; VENUE; SERVICE OF PROCESS; WAIVER OF TRIAL
BY JURY. THIS LEASE SHALL BE BINDING WHEN ACCEPTED IN WRITING BY THE LESSOR AND
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ARIZONA, PROVIDED, HOWEVER, IN THE
EVENT THIS LEASE OR ANY PROVISION HEREOF IS NOT ENFORCEABLE UNDER THE LAWS OF
THE STATE OF ARIZONA THEN THE LAWS OF THE STATE WHERE THE EQUIPMENT IS LOCATED
SHALL GOVERN. ANY DISPUTE UNDER THIS LEASE SHALL BE LITIGATED BY LESSEE ONLY IN
FEDERAL OR STATE COURTS LOCATED IN MARICOPA COUNTY, ARIZONA, AND LESSEE
IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS AND WAIVES ANY
OBJECTION THAT MAY EXIST AS TO VENUE OR CONVENIENCE OF SUCH FORUMS. NOTHING
CONTAINED HEREIN SHALL PRECLUDE LESSOR FROM COMMENCING ANY ACTION IN ANY COURT
HAVING JURISDICTION THEREOF. SERVICE OF PROCESS IN ANY SUCH ACTION SHALL BE
SUFFICIENT IF SERVED BY CERTIFIED MAIL RETURN RECEIPT REQUESTED TO THE ADDRESS
OF THE PARTY SET FORTH FOLLOWING THE SIGNATURES AT THE END OF THIS LEASE. TO THE
EXTENT PERMITTED BY LAW, LESSEE WAIVES TRIAL BY JURY IN ANY ACTION BY OR AGAINST
LESSOR HEREUNDER.
19. GENERAL. This Lease inures to the benefit of and is binding upon the
heirs, legatees, personal representatives, successors and assigns of the parties
hereto. Time is of the essence of this Lease. This Lease and all Schedules
attached hereto contain the entire agreement between Lessor and Lessee, and no
modification of the Lease or any Schedule shall be effective unless in writing
and executed by an executive officer of Lessor. If more than one Lessee is named
in this Lease, the liability of each shall be joint and several. In the event
any provision of this Lease should be unenforceable, then such provision shall
be deemed deleted, however, no other provision hereof shall be affected thereby.
20. FINANCE LEASE STATUS. Lessor and Lessee agree that if Article 2A -
Leases of the Uniform Commercial Code ("Code") governs the terms of this Lease,
then this Lease will be deemed a "finance lease". By executing this Lease,
Lessee acknowledges that (a) Lessor has advised Lessee of (i) the identity of
the Supplier; (ii) that Lessee may have rights under the "supply contract" as
defined in the Code, pursuant to which Lessor is purchasing the Equipment, and
(iii) that Lessee may contact the Supplier for a description of any such rights.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE WAIVES ANY AND ALL RIGHTS AND
REMEDIES CONFERRED UPON A LESSEE BY THE CODE, INCLUDING SECTIONS 2A - 508
THROUGH 522 THEREOF.
6
<PAGE>
21. PUBLICITY. Lessor is hereby authorized to issue appropriate press
releases and to cause a tombstone to be published announcing the consummation of
this transaction and the aggregate amount thereof.
LESSOR: LESSEE:
FINOVA CAPITAL CORPORATION POORE BROTHERS ARIZONA, INC.
BY: /s/ P. Marchant BY: /s/ Eric Kufel
------------------------------- ----------------------------------
PRINTED NAME: P. Marchant PRINTED NAME: Eric J. Kufel
--------------------- ------------------------
TITLE: VP TITLE: President & CEO
---------------------------- -------------------------------
Taxpayer Identification no.:86-0793689
----------
ADDRESS: ADDRESS:
95 N. ROUTE 17 SOUTH, P.O. BOX 907 2664 S. LITCHFIELD ROAD
PARAMUS, NEW JERSEY 07653 GOODYEAR, ARIZONA 85338
DATE ACCEPTED: 7/11/97 DATED: 4/4/97
-------------------- -------------------------------
7
<PAGE>
FINOVA Capital Corporation
95 N. Route 17 South
P.O. Box 907
Paramus, New Jersey 07653
Telephone (201) 712-3300
MASTER LEASE SCHEDULE
NO. 5778300 TO EQUIPMENT LEASE NO. 5778300 (THE "LEASE")
----------- --------
EQUIPMENT LEASED: SUPPLIER:
See Schedule "A" attached hereto and
made a part hereof.
LOCATION OF EQUIPMENT:
3500 S. La Cometa Drive
Goodyear, Arizona 85338
TERM OF SCHEDULE: 60 MONTHS
--
RENTAL PAYMENTS $9,680.56
---------
RENTAL PAYMENT FREQUENCY: X MONTHLY QUARTERLY ANNUALLY
--- --- ---
ADVANCE RENTALS $9,680.56 PAYABLE AT THE TIME OF SIGNING OF THIS SCHEDULE TO BE
APPLIED TO THE FIRST RENTAL PAYMENT.
ADDITIONAL TERMS AND CONDITIONS
1. LEASE OF EQUIPMENT. Lessor hereby agrees to lease to Lessee, and Lessee
hereby agrees to lease and rent from Lessor the Equipment listed above, or on
any Schedule attached hereto, for the term and the rental payments provided
herein, all subject to the terms and conditions of the Lease.
2. OPTION TO PURCHASE. Provided Lessee is not in default under the Lease or this
Schedule or under any other Lease or agreement with Lessor, and notwithstanding
any provisions to the contrary contained in the Lease between the parties
described above, Lessee agrees that if Lessor, at the expiration or termination
of the Lease, offers to sell the leased equipment to Lessee, Lessee agrees that
it shall purchase, as of such date, all of Lessor's right, title and interest,
in and to the equipment for an amount equal to $47,303.00 ("Purchase Price").
Lessee shall also pay any and all sales, transfer or other taxes and imposts,
including but not limited to, title and transfer fees, if any, arising by reason
of the sale and purchase of the equipment together with any and all rentals or
other amounts remaining unpaid and pursuant to the Lease.
It is understood that the sale, conveyance or transfer by Lessor or its assignee
pursuant hereto shall be AS-IS, WHERE-IS, WITHOUT WARRANTIES OF ANY KIND.
<PAGE>
3. ADDITIONAL TERMS WITH RESPECT TO THE CARE AND USE OF THE EQUIPMENT. In
addition to Lessee's obligations under Paragraph 7 of the Lease, Lessee shall
maintain the Equipment in accordance with the manufactures' guidelines for
preventive maintenance, retain copies of all maintenance contracts and records
relating to the Equipment and provide the same to Lessor upon request.
4. ADDITIONAL TERMS WITH RESPECT TO THE CONDITIONS OF REDELIVERY. In addition to
Lessee's obligation under Paragraph 8 of the Lease, Lessee shall (i) cause the
Equipment to be deinstalled and re-certified for maintenance by the original
manufacture, (ii) return all manuals, maintenance records, cables and
re-certification letter to Lessor, (iii) return and convey to Lessor at no cost
to Lessor all upgrades and/or enhancements made to the Equipment that is
inherent to the functioning of the Equipment.
BASIS OF INDEXING. If on the Commencement Date, the highest yield on five
(5) year Treasury Notes, as published in The Wall Street Journal, with a
maturity date on or closest to the maturity date of this Schedule (the "Index"),
exceeds 6.04% (the "Yield"), the Monthly Rental Payment provided herein shall
automatically be increased for the full term to reflect such increase in the
Yield. As soon as practicable thereafter, Lessor shall provide Lessee with
written notice of any increase in the Monthly Rental Payment. Lessor's
calculations shall be conclusive absent manifest error.
6. This Master Lease Schedule cancels and supersedes previous Master Lease
Schedule dated April 4, 1997.
LESSOR: LESSEE:
FINOVA CAPITAL CORPORATION POORE BROTHERS ARIZONA, INC
BY: /s/ P Marchant BY: /s/ Thomas W. Freeze
--------------------------- ----------------------------
PRINTED NAME: P Marchant PRINTED NAME: Thomas W. Freeze
----------------- ------------------
TITLE: VP TITLE: VP & CFO
------------------------ -------------------------
ADDRESS: ADDRESS:
95 N. ROUTE 17 SOUTH, P.O. BOX 907 2664 S. LITCHFIELD ROAD
PARAMUS, NEW JERSEY 07653 GOODYEAR, ARIZONA 85338
DATE ACCEPTED: 7/11/97 DATED: 6/9/97
---------------- -------------------------
<PAGE>
Schedule "A" to Master Lease Schedule No. 5778300 dated _______, 1997 to
Equipment Lease No. 5778300 dated ______, 1997 between FINOVA CAPITAL
CORPORATION as Lessor and Poore Brothers Arizona, Inc. as Lessee.
xTWF
----
Initial
Hayssen Packaging Machine
Serial #V16407
Model # Ultima SF
Hayssen Packaging Machine
Serial #V16271
Model # Ultima SF
Hayssen Packaging Machine
Serial #V16284
Model # Ultima SF
Ishida Scale
Serial #P-285-336
Model #CCW-S-212
Ishida Scale
Serial #P-283-268
Model #CCW-202-RLC-S
Ishida Scale
Serial #P-282-098
Model #CCW-202-RLC
3 Metalek In-Line Metal Detectors
3 Hayssen Packaging machines with Ishida scales, Meal Detectors and Fallas
Conveyors
1 AS-42R Air Sweep 42" Remote Blower System
1 PSSW-21 Potato Slice Speed Wash.-2100#
xTWF
----
INITIAL
I