EXHIBIT 10.109
LEASE SCHEDULE NO. 1000099257 FINANCING LEASE
---------- (Per Diem Interim Rent)
Master Lease Agreement dated-JULY 01, 1999
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Lessor: BANC ONE LEASING CORPORATION
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Lessee: READY MIX, INC.
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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. FINANCING. Lessor finances for Lessee, and Lessee finances with Lessor, all
of the property ("Equipment") described in Schedule A-1 attached hereto (and
Lessee represents that all Equipment is new unless specifically identified as
used):
3. AMOUNT FINANCED: Equipment Cost: $2,499,758.58
Set-up/Filing Fee: 200.00
Miscellaneous: N/A
Sales Tax: N/A
Total: $2,499,958.58
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4. FINANCING TERM. The Base Term of this Schedule shall be 84 months and the
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Base Term shall commence on the Acceptance Date ("Commencement Date"). The total
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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 Lessor's
signature ("Acceptance Date") and continues up to the Commencement Date.
5. INSTALLMENT PAYMENTS/FEES. As financing for the Equipment, Lessee shall pay
to Lessor all amounts stated below on the due dates stated below. There shall be
added to each installment payment all applicable Taxes as in effect from time to
time.
(a) For the Interim Term, Lessee shall pay to Lessor on the Commencement Date an
amount equal to one-thirtieth (1/30th) of the Installment Payment multiplied by
the number of days in the Interim Term. "Installment Payment" means the total of
all installment payments due and payable during the Base Term divided by the
number of months in the Base Term.
(b) During the Base Term, Lessee shall pay to Lessor installment payments in the
amounts and according to the timing set forth below, provided however, that
notwithstanding the following, the final installment payment due hereunder shall
be equal to the remaining principal balance hereunder together with all accrued
interest and fees.
(1) Amount of each installment payment during the Base Term
(including principal and interest):
84 Monthly payments of $38,831.28
(2) Frequency of installment payments during the Base Term: MONTHLY
(3) Timing of installment payments during the Base Term: ARREARS
(c) Lessee shall pay Lessor a Set-Up/Filing Fee as follows:
(1) $ shall be paid on the Acceptance Date, or
(2) $375.00 has been included in the above Amount Financed of the
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Equipment.
(d) Security Deposit:$ On the Acceptance Date, Lessee shall pay Lessor said
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Security Deposit which shall be held in accordance with paragraph 6 below.
6. SECURITY INTEREST. This Schedule is intended to be a secured debt financing
transaction, not a true lease. See Paragraph 7 below regarding Lessee's
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ownership of the Equipment. As collateral security for payment and performance
of all Secured Obligations (defined in Paragraph 8 below) and to induce Lessor
to extend credit from time to time to Lessee (under the Lease or otherwise),
Lessee hereby grants to Lessor a first priority security interest in all of
Lessee's right, title and interest in the Equipment, whether now existing or
hereafter acquired, any sums specified in this Schedule as a "Security Deposit",
and in all Proceeds (defined in Paragraph 8 below). At its option, Lessor may
apply all or any part of any Security Deposit to cure any default of Lessee
under the Lease. If upon final termination of this Schedule, Lessee has
fulfilled all of the terms and conditions hereof, then Lessor shall pay to
Lessee upon Lessee's written request any remaining balance of the Security
Deposit for this Schedule, without interest.
7. TITLE TO EQUIPMENT; FIRST PRIORITY LIEN. Lessee represents, warrants and
agrees: that Lessee currently is the lawful owner of the Equipment; that good
and marketable title to the Equipment shall remain with Lessee at all times;
that Lessee has granted to Lessor a first priority security interest in the
Equipment and all Proceeds; and that the Equipment and all Proceeds are, and at
all times shall be, free and clear of any Liens other than Lessor's security
interest therein. Lessee at its sole expense will protect and defend Lessor's
first priority security interest in the Equipment against all claims and demands
whatsoever.
8. CERTAIN DEFINITIONS. "Secured Obligations" means (a) all payments and other
obligations of Lessee under or in connection with this Schedule, and (b) all
payments and other obligations of Lessee (whether now existing or hereafter
incurred) under or in connection with the Master Lease and all present and
future Lease Schedules thereto, and (c) all other leases, indebtedness,
liabilities and/or obligations of any kind (whether now existing or hereafter
incurred, absolute or contingent, direct or indirect) of Lessee to Lessor or to
any affiliate of either Lessor or BANK ONE CORPORATION. "Proceeds" means all
cash and non-cash proceeds of the Equipment including, without limitation,
proceeds of insurance, indemnities and/or warranties.
9. AMENDMENTS TO MASTER LEASE. For purposes of this Schedule only, Lessee and
Lessor agree to amend the Master Lease as follows: (a) public liability or
property insurance as described in the second sentence of Section 8 will not be
required; (b) the definition of "Stipulated Loss Value" in clause (b) of Section
9 is deleted and replaced by Paragraph 10 below; (c) the text of Section 10 is
deleted in its entirely; (d) Subsections 23(a) and 23(c) are deleted; (e)
subsection 23(b) and the last sentence of section 4 will apply only if an event
of default occurs; and (f) all references in the Lease as it relates to this
Schedule to "Lessee" and "Lessor" shall be changed to "Borrower" and "Lender"
respectively.
10. STIPULATED LOSS VALUE. For purposes of this Schedule only, the "Stipulated
Loss Value" of any item of Equipment during its Lease Term equals the aggregate
of the following as of the date specified by Lessor: (a) all accrued and unpaid
interest, late charges and other amounts due under this Schedule and the Master
Lease to the extent it relates to this Schedule as of such specified date, plus
(b) the remaining principal balance due and payable by Lessee under this
Schedule as of such specified date, plus (c) interest on the amount described in
the foregoing clauses (a) and
(b) at the Overdue Rate commencing with the specified date; provided, that the
foregoing calculation shall not exceed the maximum amount which may be collected
by Lessor from Lessee under applicable law in connection with enforcement of
Lessor's rights under this Schedule and the Master Lease to the extent it
relates to this Schedule.
11. LESSEE TO PAY ALL TAXES. For purposes of this Schedule and its Equipment
only: Lessee shall pay any and all Taxes relating to this Schedule and its
Equipment directly to the applicable taxing authority, Lessee shall prepare and
file all reports or returns concerning any such Taxes as may be required by
applicable law or regulation (provided, that Lessor shall not be identified as
the owner of the Equipment in such reports or returns); and Lessee shall,
upon Lessor's request, send Lessor evidence of payment of such Taxes and copies
of any such reports or returns.
12. 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.
13. 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 Equipment is or will be located; (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/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.
14. 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 sole 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 sole 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.
15. OTHER DOCUMENTS: EXPENSES: Lessee 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 and any
designee of Lessor as Lessee'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. Lessee shall pay upon Lessor's written request any
actual 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.
16. 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, LESSEE AGREES THAT: (a) LESSEE HAS
RECEIVED, INSPECTED AND APPROVED ALL OF TEE 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.
LESSEE HAS READ AND UNDERSTOOD ALL OF THE TERMS OF THIS SCHEDULE. LESSEE AGREES
THAT THERE ARE NO ORAL OR UNWRITTEN AGREEMENTS WITH LESSOR REGARDING THE
EQUIPMENT OR THIS SCHEDULE.
BANC ONE LEASING CORPORATION READY MIX, INC.
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(Lessor) (Lessee)
By:_________________________ By:/s/ Xxxxxxx X. Xxxxxx
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Title: _____________________ Title: Vice President
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Acceptance Date: ___________ Witness:/s/ Xxxxxx Xxxxx
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Banc One Leasing Corporation
SCHEDULE A-1 EQUIPMENT LEASED HEREUNDER
QUANTITY DESCRIPTION PAGE 1
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EQUIPMENT LOCATION: 0000 XXXXXXX 000
XXXXX, XX 00000
COUNTY : XXXXX
COST : $2,499,758.58
"ALL PROPERTY DESCRIBED IN THE INVOICES AND EXHIBITS IDENTIFIED BELOW, WHICH
PROPERTY MAY BE GENERALLY DESCRIBED AS ROCK AND SAND CRUSHING EQUIPMENT."
VENDOR INVOICE #
CONSTRUCTION EQUIPMENT SALES 4466
AGGREGATE DESIGNS 9906-11
CONVEYOR SALES 19245
TK ELECTRIC 99431
TK ELECTRIC 99491
XXXXXXX EQUIPMENT 150325
XXXXXXX EQUIPMENT 150326
CRUSHER SERVICE 39331
CONSTRUCTION EQUIPMENT SALES 4470
CRUSHER SERVICE 39501
HAZEMAG USA 9282A
CONVEYOR SALES 19568
XXXXXXX EQUIPMENT 150905
CONVEYOR SALES 19248
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 1000099257 and
constitutes a true and accurate description of the equipment.
Lessee:
READY MIX, INC.
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By: /s/ Xxxxxxx X. Xxxxxx
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Date: 9-24-99
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Banc One Leasing Corporation
SCHEDULE A-1 EQUIPMENT LEASED HEREUNDER
QUANTITY DESCRIPTION PAGE 2
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EXHIBIT A 45232.30
EXHIBIT B 98839.11
EXHIBIT C 62173.00
EXHIBIT D 56848.98
EXHIBIT E 94554.19
EXHIBIT F 19360.07
EXHIBIT G 91554.01
EXHIBIT H 98803.97
EXHIBIT I 176037.96
EXHIBIT J 60246.81
EXHIBIT K 29686.42
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 1000099257 and
constitutes a true and accurate description of the equipment.
Lessee:
READY MIX, INC.
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By: /s/ Xxxxxxx X. Xxxxxx
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Date: 9-24-99
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