Exhibit 10.153
[10.153]
LEASE AGREEMENT
Name and Address of Lessee ("Lessee") Name and Address of Lessor ("Lessor")
Ready Mix, Inc. Associates Leasing, Inc.
0000 X. 00xx Xx #D-11 XX Xxx 0000
Xxxxxxx XX 00000 Xxxxxxx Xxxxx XX 00000
======================================================================================================================
DESCRIBE EQUIPMENT FULLY LESSOR'S COST
Equipment Total Cost $ 36,728.00
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One (1) Cummins 275DFBF Diesel Genset SN: F010246176
Shipping & Handling Cost $ 0.00
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Installation Cost $ 0.00
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Other (Specify) 550.00
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TOTAL COSTS $ 37,278.00
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LOCATION OF EQUIPMENT:
00000 X. Xxxxxxxxx Xx Xxxxxxxx Xxx Xxxx XX 00000
====================================================================================================================================
A. TERM: 36 Months following the first day of the month after delivery
B. ADVANCE RENTAL PAYMENTS: FIRST RENTAL AND LAST 0 RENTAL(S) PLUS
APPLICABLE TAXES.
C. INTERIM RENTAL: Per day rental for the period from delivery to the first of
the following month calculated as Monthly Rental divided by 30 times the
number of days from the Delivery Date through the end of the month in which
the Equipment is delivered plus applicable taxes.
D. RENTAL PAYMENT: 36 Payments of $ 961.76
PLUS APPLICABLE TAXES
E. SECURITY DEPOSIT: 0.00
Any Termination Value Table attached to this Lease is a part of and
incorporated into the terms of this Lease.
F. PAYMENT SCHEDULE: THE ADVANCE RENTAL PAYMENT IS PAYABLE UPON DELIVERY OF THE
LEASE APPLICATION TO LESSOR. INTERIM RENTAL IS PAYABLE UPON DELIVERY OF THE
EQUIPMENT.
THE REMAINING RENTAL PAYMENTS ARE PAYABLE AS FOLLOWS:
MONTHLY ON THE FIRST DAY OF EACH MONTH BEGINNING ON THE FIRST DAY OF
September 2001 (MO/YR).
G. PURCHASE OPTION PRICE AT END OF TERM: 9,319.50
Plus Applicable Taxes
H. TAX LEASE STATUS: (check one and initial)
_____ Tax Lease: If checked, this Lease is a Tax Oriented Lease and the
provisions of Paragraph 13 of this Lease apply.
X Non-Tax Lease: If checked, this Lease is not a Tax Oriented Lease and
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the provisions of Paragraph 13 of this Lease do not apply.
I. 5 MACRS Class Life of Equipment.
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TERMS AND PROVISIONS OF LEASE
1. EFFECTIVE DATE: The terms and provisions of this Lease Agreement ("this
Lease") and the obligations and liabilities of Lessee under this Lease are
effective on the date of Lessor's acceptance of this Lease ("Effective Date"),
even though the Term and Lessee's obligation to pay the remaining Rental
Payments may begin on a later date.
2. LEASE: Lessor hereby leases to Lessee, and Lessee hereby hires and takes
from Lessor, under and subject to the terms and provisions hereof until the end
of the Term specified above ("Term"), the personal property described above and
on any supplemental schedule(s) identified as constituting a part of this lease
(herein, with all present and future attachments, accessories, replacement
parts, repairs, and additions, and all proceeds thereof, referred to as
"Equipment"). This Lease is for the Term commencing on the date the Equipment is
delivered to Lessee. For the Term or any portion thereof, Lessee agrees to pay
the Lessor aggregate rentals equal to the sum of all Rental Payments (including
advance and interim rentals) in accordance with the Payment Schedule.
3. PLACE OF PAYMENT AND OBLIGATION TO PAY: All Rental Payments are payable
without notice or demand. All amounts payable under this Lease to Lessor are
payable at Lessor's address set forth herein or at such other address as Lessor
may specify from time to time in writing. Except as otherwise specifically
provided herein. Lessee's obligation to pay the Rental Payments and all other
amounts due or to become due under this Lease shall be absolute and
unconditional under all circumstances, regardless of any set-off, counterclaim,
recoupment, defense or other claim whatsoever. Any Security Deposit is held as
security for Lessor's obligations and will be refunded in full, without
interest, upon payment in full of these obligations.
4. DELINQUENCY CHARGES: For each Rental Payment or other sum due under this
Lease which is not paid when due, Lessee agrees to pay Lessor a delinquency
charge calculated thereon at the rate of 1 1/2% per month for the period of
delinquency or, at Lessor's option, 5% of such Rental Payment or other sum due
under this Lease, provided that such a delinquency charge is not prohibited by
law, otherwise a the highest rate Lessee can legally obligate itself to pay
and/or Lessor can legally collect. Lessee agrees to reimburse Lessor immediately
upon demand for any amount charged to Lessor by any depository institution
because a check, draft or other order made or drawn by or for the benefit of
Lessee is returned unpaid for any reason and, if allowed by law, to pay Lessor
an additional handling charge in the amount of $25.00 or in the event applicable
law limits or restricts the amount of such reimbursement and/or handling charge,
the amounts chargeable under this provision will be limited and/or restricted in
accordance with applicable law.
Page 1 of 5 of Lease Agreement dated 08/01/2001 between Ready Mix, Inc. (Lessee)
and Associates Leasing, Inc. (Lessor) which includes, without limitation, an
item of Equipment with the following serial number: F010246176.
Lessee's Initials
-----------------
/s/ KDN
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Original for CitiCapital
5. NO WARRANTIES BY LESSOR, MAINTENANCE, AND COMPLIANCE WITH LAWS: Lessor
makes no representations or warranties as to the character of this transaction
for tax or other purposes. Lessee acknowledges and agrees that: the Equipment is
of a size, design, capacity and manufacture selected by Lessee; Lessor is not
the manufacturer of the Equipment or the manufacturer's agent: LESSEE LEASES THE
EQUIPMENT "AS IS" AND LESSOR HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, QUALITY, MATERIAL,
WORKMANSHIP, DESIGN, CAPACITY, MERCHANTABILITY, DURABILITY, FITNESS OR
SUITABILITY OF THE EQUIPMENT FOR ANY USE OR PURPOSE, OR ANY OTHER REPRESENTATION
OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED. Lessee will not assert any claim
whatsoever, regardless of cause, against Lessor. Lessee will not bring any suit
or claim against or make any settlement with the manufacturer or seller to
Lessor of the Equipment (both herein called "Seller") without Lessor's prior
written consent; and the selection, servicing and maintaining of the Equipment
shall be entirely at Lessee's risk and expense. Lessee agrees, at its own cost
and expense: (a) to cause the Equipment to be operated with care and only by
qualified personnel in the regular course of Lessee's business; (b) to comply
with all applicable laws, rules and regulations relating to the Equipment, with
any published instructions or specifications of the Seller and with all of the
terms of any insurance policy covering the Equipment; (c) to obtain, or sign any
documents Lessor deems necessary and any certificates of title required or
permitted by law with respect to the Equipment; (d) to maintain the Equipment in
good operating condition, repair and appearance; and (e) to furnish Lessor
promptly with such financial statements and other information as Lessor may
reasonably request from time to time.
6. TERMINATION VALUE: "Termination Value" of the Equipment is the value of the
Equipment for purposes of insurance and casualty loss. If Lessor and Lessee have
executed a Termination Value Table with respect to this Lease, the Termination
Value as of any date will be the amount indicated on that table plus any accrued
and unpaid Rentals or other amounts payable under this Lease as of that date. If
Lessor and Lessee have not executed a Termination Value Table with respect to
this Lease, the Termination Value as of any date shall mean an amount equal to
the total of all accrued and unpaid Rental Payments and all other amounts then
due and remaining unpaid plus the greater of: (a) the then Fair Market Value (as
determined in accordance with Paragraph 12 of this Lease) of the Equipment as of
that date in the same condition as when received by Lessee, reasonable wear and
tear from the normal use thereof alone excepted, as well as in the condition
required upon its return determined in accordance with Paragraph 21 of this
Lease, and (b) an amount equal to all accrued and unpaid Rental Payments and all
other amounts then due and remaining unpaid plus the then present worth of all
unaccrued Rental Payments plus either (i) the Purchase Option Price, or (ii) if
no purchase option is offered, the Fair Market Value (as determined in
accordance with Paragraph 12 of this Lease) of the Equipment in the same
condition as when received by Lessee, reasonable wear and tear from the normal
use thereof alone excepted, as well as in the condition required upon its return
determined in accordance with Paragraph 21 of this Lease. Present worth shall be
determined by discounting such unaccrued Rental Payments from their respective
due dates at the Rate of 5.50%.
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7. INSURANCE: Lessee shall bear all risk of loss of, damage to, or destruction
of the Equipment from the date of its delivery until it return. If, for any
reason, any of the Equipment is lost, stolen, destroyed or damaged beyond
repair, Lessee shall (a) immediately and fully inform Lessor with regard
thereto, and (b) promptly pay to Lessor the Stipulated Loss Value calculated as
of the date of payment thereof. Any amounts actually received by Lessor from
insurance or otherwise on Lessee's behalf for such loss or damage shall be
applied to reduce Lessee's obligation under this paragraph. Except as expressly
provided herein, the total or partial destruction of the Equipment or the total
or partial loss of use or possession thereof to Lessee, shall not release or
relieve Lessee from its obligations and liabilities under this Lease. Lessee
agrees to procure and maintain at all times on and after the Effective Date such
liability, physical damage and other insurance as Lessor may require from time
to time. Lessee agrees that all such insurance shall be in form and amount and
with insurers satisfactory to Lessor, and that Lessee will deliver promptly to
Lessor certificates or, upon request, policies satisfactory to Lessor evidencing
such insurance. All liability policies shall name Lessor as an additional
insured, and all physical damage policies shall provide that payment thereof
shall be made to Lessor and Lessee as their interests may appear. Each policy
shall provide that Lessor's interest therein shall not be invalidated by any
acts, omissions or neglect of anyone other than Lessor, and shall contain the
insurer's agreement to give Lessor at least 30 days prior written notice before
cancellation or any material change in the policy shall be effective as to
Lessor, whether such cancellation or change is at the direction of Lessee or the
insurer.
8. Taxes: Lessee shall be liable for all taxes, levies, duties, assessments,
and other governmental charges (including any penalties and interest, and any
fees for titles or registration) levied or assessed against Lessee, Lessor or
the Equipment, upon or with respect to the lease or the purchase, use,
operation, leasing, ownership, value, return or other disposition of the
Equipment, or the rent, earnings or receipts arising therefrom, exclusive,
however, of any taxes based on Lessor's net income. Unless Lessor notifies
Lessee in writing otherwise, Lessor will file all returns and remit all personal
property taxes applicable to the Equipment. Lessee agrees to reimburse Lessor
for all such personal property taxes immediately upon receipt of Lessor's
invoice including without limitation such taxes assessed or arising during the
term of this Lease but remitted by Lessor after the termination of this Lease.
At Lessor's option, Lessee agrees to remit, along with Lessee's rental payments
under this Lease, an amount equal to a percentage of Lessor's reasonable
estimate of the personal property taxes that will be assessable against the
Equipment during the succeeding tax year. Any such amounts remitted to Lessor
will be credited by Lessor against Lessee's obligations under this paragraph.
Lessee will remain obligated in the event that such amounts are insufficient to
fully reimburse Lessor for the actual amount of such taxes and any surplus will
be either credited to Lessee's other obligations to Lessor or returned to
Lessee. If requested, Lessee agrees to file promptly on behalf of Lessor all
requested tax returns and reports concerning the Equipment in form satisfactory
to Lessor, with all appropriate governmental agencies and to mail a copy thereof
to Lessor concurrently with the filing thereof. Lessee further agrees to keep or
cause to be kept and made available to Lessor any and all necessary records
relevant to the use of the Equipment and pertaining to the aforesaid taxes,
assessments and other governmental charges. The obligations arising under this
paragraph shall survive payment of all other obligations under this Lease and
the termination of this Lease.
9. LESSORS'S TITLE, STORAGE AND IDENTIFICATION OF EQUIPMENT: Title to the
Equipment will at all times remain in Lessor and Lessee will at all times, at
its own cost and expense, protect and defend the title of Lessor from and
against all claims, liens and legal processes of creditors of Lessee and keep
the Equipment free and clear from all such claims, liens and processes. Lessee
agrees not to alter or modify the Equipment without first obtaining in each
instance the prior written approval of Lessor. Upon the expiration or
termination of this Lease, Lessee, at Lessee's sole expense, shall return the
Equipment unencumbered to Lessor at a place to be designated by Lessor, and in
the same condition as when received by Lessee, reasonable wear and tear
resulting from normal use thereof alone expected. Lessee shall, upon Lessor's
request, and at Lessee's own expense firmly affix to the Equipment, in a
conspicuous place, such label, sign or other device as Lessor may supply to
identify Lessor as the owner and lessor of the Equipment. If Lessee fails to
perform duly and promptly any of its obligations under this Lease (including,
without limitation, insuring the Equipment), Lessor may perform the same, but
shall not be obligated to do so, for the account of Lessee to protect the
interest of Lessor or Lessee or both, at Lessor's option. Any amount paid or
expense (including reasonable attorney's fees), penalty or other liability
incurred by Lessor in such performance shall be payable by Lessee upon demand as
additional rent for the Equipment.
10. POSSESSION, LOCATION OF EQUIPMENT, RIGHT OF INSPECTION AND ASSIGNMENT: The
Equipment will be kept by Lessee at the location indicated herein, and will not
be removed from said location without the prior written consent of Lessor.
Lessor shall have the right to inspect the Equipment at all reasonable times and
from time to time as Lessor may require. Lessee will not sell, assign, transfer,
pledge, encumber, secrete, sublet or otherwise dispose of any of the Equipment
or any interest of Lessee in or under this Lease without Lessor's prior written
consent. This Lease and all rights of Lessor under this Lease will be
assignable by Lessor without Lessee's consent. LESSEE WAIVES, RELINQUISHES,
DISCLAIMS AND AGREES THAT IT WILL NOT ASSERT AGAINST ANY ASSIGNEE OF LESSOR ANY
CLAIMS, COUNTERCLAIMS, CLAIMS IN RECOUPMENT, ABATEMENT, REDUCTION, DEFENSES, OR
SET-OFFS FOR BREACH OF WARRANTY OR FOR ANY OTHER REASON INCLUDING THE RIGHT TO
WITHHOLD PAYMENT OF ANY MONIES WHICH MAY BECOME DUE UNDER THIS LEASE EXCEPT
DEFENSES THAT CANNOT BE WAIVED UNDER THE UNIFORM COMMERCIAL CODE. After
receiving notice of any assignment by Lessor, Lessee agrees that it will not,
without the prior written consent of the assignee, purchaser or secured party,
(i) prepay any amounts owing under this Lease; (ii) modify or amend this Lease;
or (iii) exercise any rights which are exercisable only with the consent of the
Lessor.
11. OPTIONS AVAILABLE TO LESSEE: PURCHASE OPTION: If the amount set forth as
the Purchase Option Price is $-0- or is left blank, Lessee shall have no option
whatsoever to purchase any of the Equipment. If "FMV" or a dollar amount other
than $-0- is indicated as the Purchase Option Price, Lessee is not then in
default and Lessee has paid all other amounts payable under the terms of this
Lease, Lessee shall have the option to purchase all but not less than all of the
Equipment subject to this Lease at the end of the Term of this Lease at the
Purchase Option Price indicated. If "FMV" is designated as the Purchase Option
Price, the purchase price shall be the Fair Market Value of the Equipment in the
return condition required at the end of the Term
Page 2 of 5 of Lease Agreement dated 08/01/2001 between Ready Mix, Inc. (Lessee)
and Associates Leasing, Inc. (Lessor) which includes, without limitation, an
item of Equipment with the following serial number: F010246176
Lessee's Initials
------------------
Original for CitiCapital /s/ KDN
------------------
Any sales or other applicable taxes and any personal property or other taxes
(whether or not then payable) assessable against the Equipment shall be the
responsibility of Lessee and will be payable to Lessor along with the Purchase
Option Price. Lessee must notify Lessor in writing at least ninety (90)
days prior to the expiration of the Term of Lessee's intention to return the
Equipment or to exercise any option to purchase. Failure to give such notice or
to pay the Purchase Option Price on or before the expiration of the Term will
render Lessee's option to purchase null and void. Lessor is authorized and
directed to apply the amount of any security deposit to the Purchase Option
Price and the balance, if any, of the Purchase Option Price must be received by
Lessor no later than ten (10) days after the last day of the Lease Term. Upon
receipt of the total Purchase Option Price and all other amounts payable under
this Lease, Lessor shall convey the Equipment to Lessee AS IS, WHERE IS, WITHOUT
ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
12. FAIR MARKET VALUE: The term "Fair Market Value" as used herein shall be
determined on the basis of, and shall be equal in amount to, the value which the
Equipment would obtain in an arms length sale transaction between an informed
and willing buyer-user (other than a buyer currently in possession) and an
informed and willing seller under no compulsion to sell and assuming that the
Equipment is then in the condition required under the terms of the Lease. If on
or before 60 days prior to the expiration of the Term of the Lease, Lessor and
Lessee are unable to agree upon a determination of the Fair Market Value of such
Equipment, such value shall be determined in accordance with the foregoing
definition by a qualified independent appraiser selected by lessor. The
appraiser shall be instructed to make such determination within a period of 45
days following appointment, but in no event later than 10 days prior to the
expiration of the Term of the Lease, and shall promptly communicate such
determination in writing to Lessor and Lessee. The appraiser's determination of
such Fair Market Value shall be conclusively binding upon both Lessor and
Lessee. The expenses and fees of the appraiser shall be borne by Lessee.
13. TAX INDEMNITY: Lessee and Lessor agree that Lessor shall be entitled to
modified accelerated cost recovery (or depreciation) deductions with respect to
the Equipment, and should, under any circumstances whatsoever, except as
specifically set forth below, either the United States government or any state
tax authority disallow, eliminate, reduce, recapture, or disqualify, in whole or
in part, any benefits consisting of accelerated cost recovery (or depreciation)
deductions with respect to any Equipment, Lessee shall then indemnify Lessor by
payment to Lessor, upon demand, of a sum which shall be equal to the amount
necessary to permit Lessor to receive (on an after-tax basis over the full term
of this Lease) the same after-tax cash flow and after-tax yield assumed by
lessor in evaluating the transactions contemplated by this Lease (referred to
hereafter as "Economic Return") that Lessor would have realized had there not
been a loss or disallowance of such benefits, together with, on an after-tax
basis, any interest or penalties which may be assessed by the governmental
authority with respect to such loss or disallowance. In addition, if Lessee
shall make any addition or improvement to any Equipment, and as a result
thereof, Lessor is required to include an additional amount in its taxable
income, Lessee shall also pay to Lessor, upon demand, an amount which shall be
equal to the amount necessary to permit Lessor to receive (on an after-tax basis
over the full term of this Lease) the same Economic Return that Lessor would
have realized had such addition or improvement not been made. Lessor and Lessee
agree that the Class Life of the Equipment for federal income tax purposes is as
indicated on the front side of this Equipment Schedule.
Lessee shall not be obligated to pay any sums required by this section with
respect to any Equipment in the event the cause of the loss of the deductions
results solely from one or more of the following events: (1) a failure of Lessor
to timely modified accelerated cost recovery (or depreciation) deductions for
the Equipment in Lessor's tax return, other than a failure resulting from the
Lessor's determination, based upon opinion of counsel or otherwise, that no
reasonable basis exists for claiming accelerated cost recovery (or depreciation)
deductions, or (2) a failure of Lessor to have sufficient gross income to
benefit from accelerated cost recovery (or depreciation) deductions. Lessor
agrees to promptly notify Lessee of any claim made by any federal or state tax
authority against the Lessor with respect to the disallowance of cost recovery
(or depreciation) deductions.
All amounts payable by Lessee pursuant to this section shall be payable directly
to Lessor. All the indemnities contained in this section shall continue in full
force and effect notwithstanding the expiration or other termination of the
Lease in whole or in part and are expressly made for the benefit of, and shall
be enforceable by, Lessor.
Lessee's obligations under this section shall be that of primary obligor
irrespective of whether Lessor shall also be indemnified with respect to the
same matter under some other agreement by another party. The obligations of
Lessee under this section are expressly made for the benefit of, and shall be
enforceable by, Lessor without necessity of declaring the Lease in default and
Lessor may initially proceed directly against Lessee under this section without
first resorting to any other rights of indemnification it may have.
14. DEFAULT BY LESSEE: If Lessee at any time defaults in any of its obligations
to Lessor, such default shall be considered an abandonment of all options herein
and all options herein shall immediately expire and become null and void.
15. OPTIONS NOT ASSIGNABLE: It is agreed that Lessee's rights under this Lease
are not assignable and that no modification of the provisions hereof shall be
binding unless in writing and signed by an officer of the party to be charged.
16. DEFAULT AND REMEDIES: An event of default shall occur if: (a) any rental
Payment or any other amount owed by Lessee to Lessor hereunder is not paid
promptly when due; (b) Lessee breaches any warranty or provision hereof, (c)
Lessee ceases to do business as a going concern, becomes insolvent, makes an
assignment for the benefit of creditors, admits in writing its inability to pay
its debts as they become due, or takes advantage of any law for the relief of
debtors; (d) any property of Lessee is attached; (e) a petition in bankruptcy or
for an arrangement, reorganization, composition, liquidation, dissolution or
similar relief is filed by or against Lessee under any present or future
statute, law or regulation; (f) Lessee or its shareholders take any action
looking to its dissolution or liquidation; (g) a trustee or receiver is
appointed for Lessee or for any substantial part of its property; (h) if there
shall occur an (i) appropriation, (ii) confiscation, (iii) retention, or (iv)
seizure of control, custody or possession of the Equipment by any governmental
authority including, without limitation, any municipal, state, federal or other
governmental entity or any governmental agency or instrumentality (all such
entities, agencies and instrumentalities shall hereinafter be collectively
referred to as "Governmental Authority"); or (i) if anyone in the control,
custody or possession of the Equipment or the Lessee is accused or alleged or
charged (whether or not subsequently arraigned indicted or convicted) by any
Governmental Authority to have used the Equipment in connection with the
commission of any crime (other than a misdemeanor moving violation). Upon the
occurrence of an event of default Lessee shall be in default hereunder and
Lessor may, at its option, with or without notice to Lessee (a) declare all sums
due and to become due hereunder and all other sums then owing by Lessee to
Lessor to be immediately due and payable; (b) proceed by appropriate court
action or actions or other proceedings either at law or in equity to enforce
performance by Lessee of any and all provisions of this Lease and to recover the
damages for the breach thereof; (c) require Lessee to assemble the Equipment and
deliver same forthwith to Lessor at Lessee's expense at such place as Lessor may
designate which is reasonably convenient to both parties; (d) exercise one or
more of the rights and remedies available to a secured party under the Uniform
Commercial Code, whether or not this transaction is subject thereto; (e) enter,
or its agents may enter, without notice or liability or legal process, into any
premises where the Equipment may be, or is believed by Lessor to be, and
repossess all or any part thereof, disconnecting and separating the same from
any other property and using all force necessary and permitted by applicable
law, Lessee hereby expressly waiving all further rights to possession of the
Equipment after default and all claims for injuries suffered through or loss
caused by such repossession; and/or (f) apply any security deposit or other
amounts held by Lessor to any indebtedness of Lessee to Lessor. In addition,
Lessee agrees to pay, to Lessor, as liquidated damages for loss of the bargain
and not as a penalty, (1) the Stipulated Loss Value plus (2) all expenses of
retaking, holding, preparing for sale, selling and the like, including
reasonable attorneys' fees and other legal expenses, less (3) any amount
actually received by Lessor from the re-lease, sale or other disposition of the
Equipment. Lessee hereby waives any right to trial by jury in any proceeding
arising out of this Lease. Nothing herein contained will require Lessor to re-
lease, sell or otherwise dispose of the Equipment. No remedy of Lessor hereunder
shall be exclusive of any other remedy herein or provide by law, but each shall
be cumulative and in addition to every other remedy. A waiver of a default shall
not be a waiver of any other or a subsequent default. If allowed by law, "the
reasonable fees for attorneys" retained by Lessor shall include the amount of
any flat fee, retainer, contingent fee or the hourly charges of any attorney
retained by Lessor in enforcing any of Lessor's rights hereunder or in the
prosecution or defense of any litigation related to this Agreement or the
transactions contemplated by this Agreement. All notices to Lessee relating
hereto will be considered received when delivered in person or mailed to Lessee
at the address set forth in this Agreement, or at any later address designated
in writing by Lessee. Lessor may sell the Equipment without giving any
warranties as to the Equipment. Lessor may disclaim any warranties of title,
possession, quiet enjoyment, or the like. This procedure will not be considered
to adversely affect the commercial reasonableness of any sale of the Equipment.
17. INDEMNITY: Lessor (which term as used herein includes Lessor's successors,
assigns, agents, and servants) shall have no responsibility or liability to
Lessee, its successors or assigns or any other person with respect to any
Liabilities (as "Liabilities" is herein defined), and Lessee hereby assumes
liability for, and hereby agrees, at its sole cost and expense, to indemnify,
defend, protect and save Lessor and keep it harmless from and against, any and
all Liabilities. The term "Liabilities" as used herein shall include any and all
liabilities, obligations, losses, damages, penalties, claims, actions, suits,
costs, expenses and disbursements of whatsoever kind and nature, including legal
fees and expenses, (whether or not any transaction contemplated hereby is
consummated) imposed on, incurred by or asserted against Lessor or the Equipment
(whether by way of strict or absolute liability or otherwise) and in any way
relating to or arising out of this Lease or the selection, manufacture,
purchase, acceptance, ownership, delivery, non-delivery, lease, possession, use,
operation, condition, servicing, maintenance, repair, improvement, alteration,
replacement, storage, return or other disposition of the Equipment (including
without limitation, (i) claims as a result of latent or patent defects, whether
or not discoverable by Lessor or Lessee, (ii) claims for trademark, patent or
copyright infringement, and (iii)
Page 3 of 5 of Lease Agreement dated 08/01/2001 between Ready Mix, Inc. (Lessee)
and Associates Leasing, Inc. (Lessor) which includes, without limitation, an
item of Equipment with the following serial number: F010246176
Lessee's Initials
------------------
Original for CitiCapital /s/ KDN
------------------
tort claims of any kind (whether based on Lessor's alleged negligence or
otherwise), including claims for injury or damage to property, or injury or
death to any person (including Lessee's employees) or, for any claim or
liability hereby indemnified against. The indeminities arising under this
paragraph shall survive payment of all other obligations under this Lease and
the termination of this Lease.
18. POWER OF ATTORNEY. LESSEE HEREBY APPOINTS LESSOR OR ANY OFFICER, EMPLOYEE OR
DESIGNEE OF LESSOR OR OF ANY ASSIGNEE OF LESSOR (OR ANY DESIGNEE OF SUCH
ASSIGNEE) AS LESSEE'S OR SUCH ASSIGNEE'S ATTORNEY-IN-FACT TO, IN LESSEE'S,
ASSIGNEE'S OR LESSOR'S NAME, TO: (a) PREPARE, EXECUTE AND SUBMIT ANY NOTICE OR
PROOF OF LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSURANCE POLICY INSURING
THE EQUIPMENT; (b) PREPARE, EXECUTE AND FILE ANY INSTRUMENT WHICH IN LESSOR'S
OPINION, IS NECESSARY TO PERFECT AND/OR GIVE PUBLIC NOTICE OF THE INTERESTS OF
LESSOR IN THE EQUIPMENT AND (c) ENDORSE LESSEE'S NAME ON ANY REMITTANCE
REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE EQUIPMENT OR THE PROCEEDS
OF THE SALE, LEASE OR OTHER DISPOSITION OF THE EQUIPMENT (WHETHER OR NOT THE
SAME IS A DEFAULT HEREUNDER). This power is coupled with an interest and is
irrevocable so long as any indebtedness hereunder remains unpaid. Lessee agrees
to execute and deliver to Lessor, upon Lessor's request such documents and
assurances as Lessor deems necessary or advisable for the confirmation or
perfection of this Lease and Lessor's rights hereunder, including such documents
as Lessor may require for filing or recording.
19. PRIVACY WAIVER: Lessor may receive from and disclose to any individual,
corporation, business trust, association, company, partnership, joint venture,
or other entity (herein collectively, the "Entity"), including, without limiting
the generality of the foregoing, Lessor's parent or any affiliate or any
subsidiary of Lessor and any credit reporting agency or other Centity whether or
not related to Lessor for any purpose, information about Lessee's accounts,
credit application and credit experience with Lessor and Lessee authorizes any
Entity to release to Lessor any information related to Lessee's accounts, credit
experience and account information regarding the Lessee. This shall be
continuing authorization for all present and future disclosures of Lessee's
account information, credit application and credit experience on Lessee made by
Lessor, or any Entity requested to release such information to Lessor.
20. DEBIT TRANSACTIONS. Lessor may but shall not be required to offer Lessee the
option of paying any of Lessee's obligations to Lessor through printed checks
("Debit Transactions") drawn pursuant to this authorization upon Lessee's
checking account, using Lessee's checking account number, bank routing code and
other information which Lessee provides to Lessor prior to the first Debit
Transaction. Lessee authorizes Lessor to initiate Debit Transactions from
Lessee's checking account in the amount necessary to pay the rental payments,
delinquency charges, or such other amounts as may now or hereafter be due
hereunder or under any other present or future agreement with or which is held
by Lessor, plus a fee of ten dollars ($10.00) for each Debit Transaction
initiated by Lessor. In the event applicable law prohibits or restricts the
amount of such fee, the fee chargeable under this provision shall be limited
and/or restricted in accordance with applicable law. Lessor may from time to
time increase or decrease the Debit Transaction fee upon prior written notice
addressed to Lessee's last known address as shown on the records of Lessor and
such increase or decrease shall be effective as stated in the written notice.
Unless prohibited by applicable law, Lessee's continued use of Debit
Transactions after the effective date specified in such notice shall
conclusively establish Lessee's agreement to pay the new Debit Transaction fee
stated therein. Lessee authorizes Lessor or any officer, employee or designee of
Lessor to endorse Lessee's name as drawer on any printed check drawn in
accordance with this authorization. Until cancelled by Lessee, this
authorization shall be valid for all Debit Transactions Lessor initiates in
payment of Lessee's obligations hereunder or under other present or future
agreement with or which is held by Lessor. This authorization may be canceled at
any time by Lessee giving at least three (3) business days prior written notice
to Lessee's bank and Lessor. Payment by Debit Transactions is not required by
Lessor nor is its use a factor in the approval of credit.
21. GENERAL PROVISIONS: (A) It is the intention of the parties hereto that this
contract constitutes a lease for tax and other purposes; however, if for
purposes of perfection, this contract is interpreted by any court as a lease
intended as security, Lessee hereby grants to Lessor a security interest in the
Equipment and all proceeds thereof, and Lessee authorizes Lessor or any officer,
employee or designee or Lessor of any assignee of Lessor (or any designee of
such assignee) to file a financing statement describing the Equipment and all
proceeds thereof as well as assets other than the Equipment. Further, it is the
intention of the parties that Lessor will have a purchase money security
interest ("PMSI") in the portion of the Equipment (such portion, together with
any proceeds thereof, is referred to as the "PMSI Collateral") that was acquired
by Lessee with funds advanced by Lessor for the PMSI Collateral (the "PMSI
Debt"). The PMSI Collateral shall secure only the unpaid balance of monies
advanced by Lessor for the acquisition of the PMSI Collateral. Only the PMSI
Collateral and no other property of Lessee shall secure the PMSI Debt. All
payments made by Lessee to Lessor with reference to the Lease shall be applied
first to any indebtedness which is not secured, then to late charges, then to
any other fees or other amounts payable hereunder other than the PMSI Debt,
until all of such indebtedness is paid in full, and then to the PMSI Debt, and
all proceeds of the PMSI Collateral shall be applied only to the payment of PMSI
Debt. Upon payment in full of the PMSI Debt, all security interest of Lessor in
the PMSI Collateral shall be terminated. This provision controls over any
conflicting provision or language in this Lease or in any other agreement
between Lessor and Lessee unless the parties mutually agree in writing in a
subsequent agreement to override this provision. (B) Any provisions hereof
contrary to, prohibited by or invalid under applicable laws or regulations shall
be inapplicable and deemed omitted herefrom, but shall not invalidate the
remaining provisions hereof. (C) This Lease and any addenda referred to herein
constitute the entire agreement of the parties hereto. No oral agreement,
guaranty, promise, condition, representation or warranty shall be binding. All
prior conversations, agreement or representations related hereto and/or to the
Equipment are superseded hereby, and no modification hereof shall be binding
unless in writing and signed by an authorized representative of the party to be
bound. (D) The only copy of this Lease that will constitute "chattel paper" for
purposes of the Uniform Commercial Code is the original of this Lease marked
"Original for CitiCapital." (E) ANY ASSIGNMENT OR TRANSFER OF THIS LEASE TO ANY
ASSIGNEE OR SECURED PARTY OTHER THAN ASSOCIATES LEASING, INC. OR ITS AFFILIATES
("CITICAPITAL") VIOLATES THE RIGHTS OF CITICAPITAL.
22. RENEWAL. Unless Lessee notifies Lessor in writing at least ninety (90) days
prior to the expiration of the Term of Lessee's intention to return the
Equipment or to exercise any option to purchase, or Lessor notifies Lessee in
writing at least ninety (90) days prior to the expiration of the Term of
Lessor's intention to terminate this Lease, this Lease will automatically renew
and continue on a month to month basis following the initial Term ("Renewal
Term") until such time as either Lessor or Lessee provides the other party with
at least ninety (90) days prior written notice of that party's intention to
terminate this Lease. Rental Payments will continue to be due and owing until
expiration of such notice period. All of the terms and provisions of this Lease
shall govern during any Renewal Term, except that any option on the part of
Lessee to purchase the Equipment shall automatically expire on the expiration of
the Term and shall be inapplicable to any Renewal Term.
23. RETURN OF EQUIPMENT: If Lessee does not exercise, or is precluded from
exercising, the option to purchase the Equipment at the expiration of the Term
or any Renewal Term of this Lease, Lessee shall, at Lessee's sole cost and
expense, return all, but not less than all, of the Equipment to Lessor
immediately upon the expiration of the Term or any Renewal Term of this Lease
pursuant to the terms and conditions contained in Lessor's Standard Return
Conditions for equipment similar to the Equipment subject to this Lease (a copy
of which has been delivered to Lessee in conjunction with this Lease).
If Lessee does not surrender the Equipment to Lessor as herein provided, Lessee
will be in default of this Lease as to such Equipment, and Lessee shall pay
Lessor, as liquidated damages and not as penalty, an amount equal to one hundred
ten percent (110%) of the Monthly Rental Payment applicable to such Equipment.
Such payment shall commence with the month immediately following the end of the
Term or any Renewal Term and shall continue thereafter monthly until the
Equipment is returned to Lessor. Lessee agrees that such liquidated damages are
a reasonable estimate and fair compensation for the costs, expenses, residual
value exposure and other losses, which are incapable of an exact determination,
incurred by Lessor as a result of Lessees retaining possession of the Equipment
beyond the end of the Term or any Renewal Term. Notwithstanding the foregoing,
Lessor shall have the right to obtain immediate possession of the Equipment at
any time after the end of the Term or any Renewal Term for such Equipment.
24. LOCATION OF LESSEE: (a) If Lessee is a corporation, limited liability
company, limited partnership or other registered organization, its state of
incorporation is in the state set forth on the last page of this Lease; (b) if
Lessee is an individual, his/her principal place of residence is at the address
set forth on the last page of this Lease; (C) if Lessee is an organization, its
place of business or if it has more than one place of business, its chief
executive office is located at the address set forth on the last page of this
Lease. Lessee agrees that it will not, without the prior written consent of
Lessor, change its state of organization if it is a corporation, limited
liability company, limited partnership or other registered organization or the
location of its chief executive office or its place of business if it is an
organization. If Lessee is an individual, Lessee must notify Lessor in writing
of a change in his/her principal place of residence 30 days prior to such
change.
Page 4 of 5 of Lease Agreement dated 08/01/2001 between Ready Mix, Inc. (Lessee)
and Associates Leasing, Inc. (Lessor) which includes, without limitation, an
item of Equipment with the following serial number: F010246176.
Original for CitiCapital
--------------------------------------------------------------------------------
DELIVERY AND ACCEPTANCE OF EQUIPMENT (Check Appropriate Box)
Lessee's obligations and liabilities under this Lease are absolute and
unconditional under all circumstances and regardless of any failure of operation
or loss of possession of any item of Equipment or the cessation or interruption
of Lessee's business for any reason whatsoever.
[X] On 07/24/2001, the Equipment leased under this Lease was delivered to
Lessee with all installation necessary for the proper use of the Equipment
completed at a location agreed to by Lessee and the Equipment was inspected by
Lessee and found to be in satisfactory reading, as applicable, upon delivery of
the Equipment was __________________________________.
[_] The Equipment leased under this Lease has not yet been delivered to or
accepted by Lessee and, upon delivery, Lessee agrees to execute such delivery
and acceptance certificate as Lessor or Lessor's assignee requires.
LESSEE: LESSOR:
Ready Mix, Inc. Associates Leasing, Inc.
By /s/ Xxxxxxx X. Xxxxxx By ____________________________________________
-------------------------------------------
Title Vice President Title _________________________________________
----------------------------------------
Date: 08/01/2001 Federal Tax ID#: 00-0000000 Date: 08/01/2001 Federal Tax ID#: _____________
---------- ------------ ----------
State of Organization: Nevada
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Page 5 of 5 of Lease Agreement dated 08/01/2001 between Ready Mix, Inc. (Lessee)
and Associates Leasing, Inc. (Lessor) which includes, without limitation, an
item of Equipment with the following serial number: F010246176
