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EXHIBIT 10.32
[BANK ONE LOGO]
LEASE SCHEDULE NO. 1000101377 LEASE
(Prime Rate Interim Rent)
Master Lease Agreement dated December 30, 1999
Lessor: BANC ONE LEASING CORPORATION
Lessee: HOME INTERIORS & GIFTS, INC.
1. GENERAL. This Lease Schedule is signed and delivered under the Master Lease
Agreement identified above, as amended from time to time ("Master Lease"),
between Lessee and Lessor. Capitalized terms defined in the Master Lease will
have the same meanings when used in this Schedule.
2. LEASE; EQUIPMENT DESCRIPTION. Lessor leases to Lessee, and Lessee leases from
Lessor, all of the property ("Equipment") described in Schedule A-1 attached
hereto (and Lessee represents to its knowledge that all Equipment is new unless
specifically identified as used).
3. LESSOR'S COST OF EQUIPMENT.
EQUIPMENT COST: $6,276,471.00
SET-UP/FILING FEE:
MISCELLANEOUS:
SALES TAX:
TOTAL: $6,276,471.00
4. LEASE TERM. The Base Term of this Schedule shall be EIGHTY-FOUR (84) months
and the Base Term shall commence on MAY 30,2000 ("Commencement Date"). The total
Lease Term consists of the Interim Term plus the Base Term. The Interim Term
begins on the date that Lessor accepts this Schedule as stated below Xxxxxx's
signature ("Acceptance Date") and continues up to the Commencement Date.
5. RENT/FEES. There shall be added to each rent or other payment described below
all applicable Taxes as in effect from time to time.
(a) As rent for the Equipment during the Interim Term, Lessee shall pay to
Lessor on the Commencement Date an amount equal to the Per Diem Rent multiplied
by the number of days in the Interim Term. "Per Diem Rent" means an amount equal
to the Lessor's Cost of the Equipment multiplied by the Daily Rate. "Daily Rate"
means (the Prime Rate on the Acceptance Date plus 0.00 percentage points)
divided by 360.
(b) As rent for the Equipment during the Base Term, Lessee shall pay to Lessor
all amounts stated below according to the timing stated below:
(1) Amount of each payment during the Base Term: 84 MONTHLY PAYMENTS OF
$91,846.36
(2) Frequency of payments during the Base Term: MONTHLY
(3) Timing of payments during the Base Term: ARREARS
(c) Lessee shall pay Lessor a Set-Up/Filing Fee as follows:
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(1) $0.00 shall be paid on the Acceptance Date, or
(2) $0.00 has been included in the above Lessor's Cost of the
Equipment.
(d) Security Deposit: 0.00 On the Acceptance Date, Lessee shall pay Lessor said
Security Deposit which shall be held in accordance with paragraph 11 below.
6. TITLE TO EQUIPMENT; QUIET POSSESSION. Xxxxxx agrees that Lessor is the lawful
owner of the Equipment and that good and marketable title to the Equipment shall
remain with Lessor at all times. Lessee at its sole expense will protect and
defend Xxxxxx's good and marketable title to the Equipment against all claims
and demands whatsoever except for Liens created directly by Xxxxxx. This
Schedule is intended to be a lease transaction. Lessee shall have no right,
title or interest in any of the Equipment except the right to peacefully and
quietly hold and use the Equipment in accordance with the terms of the Lease
during the Lease Term unless and until an event of default shall occur.
7. TAX REPRESENTATIONS. Lessee agrees that: (a) Lessee does not have, and the
Lease will not create for Lessee, any equity or ownership interest in the
Equipment; (b) the Equipment is not now, and will not be, "tax-exempt use
property" as defined in Code Section 168; and (c) the Equipment has been placed
in service as of the Acceptance Date.
8. LESSEE'S ASSURANCES. Lessee irrevocably and unconditionally: (a) reaffirms
all of the terms and conditions of the Master Lease and agrees that the Master
Lease remains in full force and effect; (b) agrees that the Equipment is and
will be used at all times solely for commercial purposes, and not for personal,
family or household purposes; and (c) incorporates all of the terms and
conditions of the Master Lease as if fully set forth in this Schedule.
9. CONDITIONS. No lease of Equipment under this Schedule shall be binding on
Lessor, and Lessor shall have no obligation to purchase the Equipment covered
hereby, unless: (a) Lessor has received evidence of all required insurance; (b)
in Lessor's reasonable judgment, there has been no material adverse change in
the financial condition or business of Lessee or any guarantor; (c) Lessee has
signed and delivered to Lessor this Schedule, which must be satisfactory to
Lessor, and Lessor has signed and accepted this Schedule; (d) no change in the
Code or any regulation thereunder, which in Lessor's reasonable judgment would
adversely affect the economics to Lessor of the lease transaction, shall have
occurred or shall appear to be imminent; (e) Lessor has received, in form and
substance satisfactory to Lessor, such other documents and information as Lessor
shall reasonably request; and (f) Lessee has satisfied all other reasonable
conditions established by Lessor.
10. OTHER DOCUMENTS: EXPENSES: Xxxxxx agrees to sign and deliver to Lessor any
additional documents deemed desirable by Lessor to effect the terms of the
Master Lease or this Schedule including, without limitation, Uniform Commercial
Code financing statements which Lessor is authorized to file with the
appropriate filing officers. Lessee hereby irrevocably appoints Lessor as
Xxxxxx's attorney-in-fact with full power and authority in the place of Lessee
and in the name of Lessee to prepare, sign, amend, file or record any Uniform
Commercial Code financing statements or other documents deemed desirable by
Lessor to perfect, establish or give notice of Lessor's interests in the
Equipment or in any collateral as to which Lessee has granted Lessor a security
interest. The signing or filing of Uniform Commercial Code financing statements
and other recordings are undertaken as a precaution only since the parties
intend this Schedule to be a lease transaction. Lessee shall pay upon Xxxxxx's
written request any actual reasonable out-of-pocket costs and expenses paid or
incurred by Lessor in connection with the above terms of this section or the
funding and closing of this Schedule.
11. SECURITY DEPOSIT: As collateral for Lessee's obligations under the Lease,
Lessee hereby grants to Lessor a security interest in the sums specified in this
Schedule as a "Security Deposit". At its option, Lessor may apply all or any
part of said Security Deposit to cure any default of Lessee under the Lease. If
upon final termination of this Schedule, Xxxxxx has fulfilled all of the terms
and conditions hereof, then Lessor shall pay to Lessee upon Xxxxxx's written
request any remaining balance of the Security Deposit for this Schedule, without
interest.
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12. REPRESENTATIONS AND WARRANTIES: Lessee represents and warrants that: (a)
Lessee is a corporation, partnership or proprietorship duly organized, validly
existing and in good standing under the laws of the state of its organization
and is qualified to do business and is in good standing under the laws of each
other state in which the failure to so qualify would have a material adverse
effect on Lessee's ability to carry on its business as now conducted or to enter
into or perform its obligations under the Lease; (b) Lessee has full power,
authority and legal right to sign, deliver and perform the Master Lease, this
Schedule and all related documents and such actions have been duly authorized by
all necessary corporate, partnership or proprietorship action; and (c) the
Master Lease, this Schedule and each related document has been duly signed and
delivered by Lessee and each such document constitutes a legal, valid and
binding obligation of Lessee enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
whether at law or equity (including the principles of good faith and fair
dealing).
13. RELEASES. Upon fulfillment of all of Lessee's obligations under the Lease,
Xxxxxx agrees to deliver to Lessee (or at Lessor's option, file) a release of
any Uniform Commercial Code financing statements it may have filed describing
the Equipment as Collateral, and, at Xxxxxx's sole cost, execute and deliver to
Lessee such other documents as Lessee may reasonably request to evidence the
fulfillment of lessee's obligations under the Lease.
14. PURCHASE ORDERS AND ACCEPTANCE OF EQUIPMENT. Lessee agrees that (i) Lessor
has not selected, manufactured, sold or supplied any of the Equipment, (ii)
Lessee has selected all of the Equipment and its suppliers, and (iii) Lessee has
received a copy of, and approved, the purchase orders or purchase contracts for
the Equipment. AS BETWEEN LESSEE AND LESSOR, XXXXXX AGREES THAT: (a) XXXXXX HAS
RECEIVED, INSPECTED AND APPROVED ALL OF THE EQUIPMENT; (b) ALL EQUIPMENT IS IN
GOOD WORKING ORDER AND COMPLIES WITH ALL PURCHASE ORDERS OR CONTRACTS AND ALL
APPLICABLE SPECIFICATIONS; (C) LESSEE IRREVOCABLY ACCEPTS ALL EQUIPMENT FOR
PURPOSES OF THE LEASE "AS-IS, WHERE-IS" WITH ALL FAULTS; AND (d) LESSEE
UNCONDITIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO REVOKE ITS ACCEPTANCE OF
THE EQUIPMENT.
XXXXXX HAS READ AND UNDERSTOOD ALL OF THE TERMS OF THIS SCHEDULE. XXXXXX AGREES
THAT THERE ARE NO ORAL OR UNWRITTEN AGREEMENTS WITH LESSOR REGARDING THE
EQUIPMENT OR THIS SCHEDULE.
BANC ONE LEASING CORPORATION HOME INTERIORS & GIFTS. INC.
(Lessor) (Lessee)
By: /s/ [ILLEGIBLE] By: /s/ XXXXXXX XXXXX
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Title: /s/ [ILLEGIBLE] Title: VP, Gen Counsel
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Acceptance Date: 5/5/00 Witness:
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BANC ONE LEASING CORPORATION
SCHEDULE A-1 EQUIPMENT LEASED HEREUNDER
QUANTITY DESCRIPTION PAGE 1
================================================================================
LOCATION: 0000 XXXXXXXXX XXXX XXXX
XXXXXXXXXX, XX 00000
XXXXXX XXXXXX
EQUIPMENT COST: $6,276,471.00
1 RAPIDPICK PAPERLESS PICKING SYSTEM AS MORE FULLY DESCRIBED IN PROPOSAL
# 56-5879 REV. B DATED DECEMBER 14, 1999 FROM RAPISTAN SYSTEMS.
1 TURNKEY MATERIAL HANDLING SYSTEM ENCOMPASSING CONVEYOR EQUIPMENT,
CONTROLS, FIELD WIRING, INSTALLATION AS MORE FULLY DESCRIBED IN
PROPOSAL # 56-5898 REV. B DATED DECEMBER 14, 1999 FROM RAPISTAN
SYSTEMS.
1 MATERIAL STORAGE SYSTEM ENCOMPASSING FOUR (4) THREE LEVEL PICK MODULES,
PALLET TRACK, CARTON FLOW RACK, APPROPRIATE DECKING AND SAFETY HANDRAIL
INSTALLATION AS MORE FULLY DESCRIBED IN PROPOSAL # 56-5738 REV. B
DATED DECEMBER 14, 1999 FROM RAPISTAN SYSTEMS.
TOGETHER WITH ALL ATTACHMENTS, ADDITIONS, ACCESSIONS, PARTS, REPAIRS,
IMPROVEMENTS, REPLACEMENTS AND SUBSTITUTIONS THERETO.
This Schedule A-1 is attached to and made a part of Lease Number 1000101377 and
constitutes a true and accurate description of the equipment.
Lessee: HOME INTERIORS & GIFTS, INC.
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By: /s/ XXXXXXX XXXXX
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Date: 5/5/00
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DELIVERY AND ACCEPTANCE CERTIFICATE
WITH HOLDBACK AGREEMENT
Dated 5/5/00
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Lease Number 1000101377
Lessee: Home Interiors & Gifts, Inc.
Lessor: Banc One Leasing Corporation
(1) Solely for the purposes of this Delivery and Acceptance
Certificate, certain terms are defined as follows. "Financing Agreement" means
the lease/loan having the Lease/Loan Number referenced above. "Equipment" means
the equipment described in the Financing Agreement. "Customer" refers to the
Lessee/Borrower referred to above. "Financing Source" refers to the
Lessor/Lender referred to above.
(2) SOLELY AS BETWEEN CUSTOMER AND FINANCING SOURCE FOR PURPOSES OF THE
FINANCING AGREEMENT, Customer hereby acknowledges and agrees that as of the date
first written above. (a) ALL OF THE EQUIPMENT HAS BEEN DELIVERED TO CUSTOMER.
(b) To the best of Customer's knowledge, ALL of the Equipment is in good working
order and complies with all applicable purchase orders or contracts and
specifications. (c) AS BETWEEN CUSTOMER AND FINANCING SOURCE, CUSTOMER
IRREVOCABLY ACCEPTS THE EQUIPMENT FOR ALL PURPOSES OF THE FINANCING AGREEMENT
"AS-IS, WHERE-IS" WITH ALL FAULTS, AND CUSTOMER UNCONDITIONALLY WAIVES ANY RIGHT
THAT CUSTOMER MAY HAVE TO REVOKE ITS ACCEPTANCE OF THE EQUIPMENT.
(3) At Customer's request, Financing Source is directed and IRREVOCABLY
AUTHORIZED to pay, on or before the Disbursement Date(s) set forth below, the
balance of the purchase price of the Equipment to the suppliers of the Equipment
listed below as set forth below:
Supplier Amount Disbursement Date
-------- ------ -----------------
Mannesmann Dematic Rapistan Corp. $627,646.00 June 19,2000
(4) Financing Source shall not owe any interest to Customer for that
period of time during which any portion of the purchase price of the Equipment
is undisbursed. Customer agrees to pay, defend, indemnify and hold Financing
Source harmless from any liabilities, obligations, claims, costs and expenses
(including reasonable attorney fees and expenses) of whatever kind imposed on or
asserted against Financing Source in any way related to any purchase orders or
purchase contracts relating to the Equipment.
(5) Nothing contained herein shall constitute a waiver or release of
any rights which Customer may have against the suppliers or the manufacturers of
the Equipment under any warranties or other agreements, if any, made by the
supplier or the manufacturer relating to the Equipment. Nothing contained herein
shall constitute a modification, amendment, waiver or release of any term,
condition, covenant or agreement set forth in the Financing Agreement, including
Customer's unconditional and absolute obligation to make all payments as set
forth in the Financing Agreement.
Home Interiors & Gifts, Inc.
(Customer)
By: /s/ XXXXXXX XXXXX
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Title: VP, Gen Counsel
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NON TITLED EQUIPMENT INSURANCE REQUEST LETTER
AON RISK MANAGEMENT
----------------------------------------------
(Agent)
0000 XXXXXXXX XXXXXX
----------------------------------------------
(Street Address)
ST. XXXXX, MO 63105
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(City, State, Zip)
000-000-0000
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(Telephone Number)
Dear Agent:
Before our lease transaction can close, we need a properly executed Certificate
of Insurance or binder covering the equipment we are leasing. Please send proof
immediately of the following insurance requirements in the enclosed
self-addressed envelope.
1. PHYSICAL DAMAGE: All risk equipment coverage for the replacement cost of
the equipment being leased, which is estimated to be $6,276,471.00.
Equipment Description: SEE SCHEDULE A-I ATTACHED.
----------------------------------------------------
2. LOSS PAYEE: Banc One Leasing Corporation must be named as loss payee on
the Physical Damage coverage as owners of the equipment during the term of
the lease. "Mortgagee" will not be acceptable as this indicates a security
interest rather than ownership as described above.
3. LIABILITY: Liability coverages must be provided in the following amounts:
$300,000 for injury or death of one person
$300,000 for all persons in one accident
$100,000 for property damage liability as a result of one accident
4. ADDITIONAL INSURED: Banc One Leasing Corporation must be named additional
insured on the liability coverage only.
5. NOTICE OF CANCELLATION: This policy shall not be canceled nor any
restriction of coverage affected unless thirty (30) days prior written
notice has been given by certified mail to Banc One Leasing Corporation at
0000 Xxxxxxx Xxxxxxx, Xxxxx X0, Xxxxxxxx, Xxxx 00000, Attn: Insurance
Dept.
PLEASE REFERENCE THE COMPLETE LEASE NUMBER AS LISTED BELOW FOR TRACKING
PURPOSES. THANK YOU.
Sincerely,
/s/ XXXXXXX XXXXX, VP
--------------------------------------------------
(By)
Home Interiors & Gifts, Inc.
--------------------------------------------------
(Lessee Name)
1000101377
--------------------------------------------------
(Lease Number)
================================================================================
Verified By: Date:
------------------------------------------ --------------
(BOLC Employee)
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EARLY BUYOUT OPTION ADDENDUM
(Fixed Price)
Dated 5/5/00
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Master Lease Agreement Date: December 30, 1999 Lease Schedule No: 1000101377
Lessee: Home Interiors & Gifts, Inc.
Reference is made to the Lease Schedule identified above as amended
("Schedule") and to the Master Lease Agreement identified in the Schedule as
amended ("Master Lease") and, each of which is by and between the lessee
identified above ("Lessee") and Banc One Leasing Corporation ("Lessor"). Unless
otherwise defined herein, all capitalized terms defined in the Master Lease and
the Schedule shall have the same meaning when used herein. For good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto agree
as follows:
1. Solely for purposes of the Schedule and the equipment covered
thereby ("Equipment"), Lessor and Lessee agree that so long as no event of
default has occurred and continues under the Master Lease or any Schedule
thereto and so long as Lessee gives Lessor written notice of its election under
this Addendum at least 30 days, but no more than 90 days, prior to the
applicable Buyout Date (as defined below), Lessee may elect to terminate the
Schedule and purchase all, but not less than all, of the Equipment by paying to
Lessor the Early Buyout Value (as defined below) on the Buyout Date. "Early
Buyout Value" means the total of the following: (a) all rent, Taxes and all
other amounts then due and payable by Lessee under the Schedule and Master Lease
to the extent it relates to the Schedule; (b) an amount equal to the product of
the Lessor's Cost of the Equipment and the EBO Percentage set forth below
opposite the applicable Buyout Date; and (c) sales and other Taxes due in
connection with Lessor's receipt of the above amounts. "Buyout Date" means the
rent payment date of the month of the Lease Term stated in the Buyout Date
column set forth below.
BUYOUT DATE EBO PERCENTAGE
----------- --------------
48th month of Lease Term 54.46%
60th month of Lease Term 39.65%
72nd month of Lease Term 23.79%
2. After careful consideration of the Lessor's Cost of the Equipment,
the length of the Lease Term, the physical, technical and performance
characteristics of the Equipment, the anticipated obsolescence, Xxxxxx's
intended use of the Equipment, inflation and all other relevant factors, Lessee
represents that Lessee currently has no reason to believe or expect that the
actual Fair Market Value of the Equipment on the Buyout Date will exceed the
applicable Early Buyout Value set forth in Paragraph 1 above.
3. This Addendum is hereby made a part of the Schedule. Except as
expressly amended hereby, the Schedule and the Master Lease remain in full force
and effect.
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HOME INTERIORS & GIFTS. INC. BANC ONE LEASING CORPORATION
(Lessee) (Lessor)
By: /s/ XXXXXXX XXXXX By: [ILLEGIBLE]
------------------------- ----------------------------------
Title: VP, Gen. Counsel. Title: [ILLEGIBLE]
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