EXHIBIT 10.116
Master Lease Agreement
MASTER LEASE AGREEMENT ("Master Lease") dated as of March 10, 2000 between The
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CIT Group/Equipment Financing, Inc. (Lessor),
having a place of business at P 0 Box 27248 Tempe AZ 85285-7248
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Address City State Zip Code
and Ready Mix, Inc ("Lessee"),
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having a place of business at 2601 E. Thomas Ste 235 Phoenix AZ 85008
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Address City State Zip Code
This Master Lease Agreement provides a set of terms and conditions that the
parties hereto intend to be applicable to various transactions for the lease of
personal property. Each lease contract shall be evidenced by an equipment
schedule ("Schedule") executed by Lessor and Lessee that explicitly incorporates
the provisions of this Master Lease Agreement and that sets forth specific terms
of that particular lease contract. Where the provisions of a Schedule conflict
with the terms hereof, the provisions of the Schedule shall prevail. Each
Schedule shall constitute a complete and separate lease agreement, independent
of all other Schedules, and without any requirement of being accompanied by an
originally executed copy of this Master Lease Agreement. The term "Lease" when
used herein shall refer to an individual Schedule.
One originally executed copy of the Schedule shall be denominated "Originally
Executed Copy No. 1 of 1 originally executed copies" and such copy shall be
retained by Lessor. If more than one copy of the Schedule is executed by Lessor
and Lessee, all such other copies shall be numbered consecutively with numbers
greater than 1. Only transfer of possession by Lessor of the originally executed
copy denominated "Originally Executed Copy No. 1" shall be effective for
purposes of perfecting an interest in such Schedule by possession.
1. Equipment Leased and Term.
This Lease shall cover such personal property as is described in any Schedule
executed by or pursuant to the authority of Lessee, accepted by Lessor in
writing and identified as a part of this Lease (which personal property with all
replacement parts, additions, repairs, accessions and accessories incorporated
therein and/or affixed thereto is hereinafter called the "Equipment"). Lessor
hereby leases to Lessee and Lessee hereby hires and takes from Lessor, upon and
subject to the covenants and conditions hereinafter contained, the Equipment
described in any Schedule. Notwithstanding the commencement date of the term of
this Lease with respect to any item of Equipment, Lessee agrees that all risk of
loss of the Equipment shall be on Lessee from and after shipment of the
Equipment to Lessee by the seller thereof, F.O.B. seller's point of shipment,
the date of such shipment being hereinafter called "date of shipment." The term
of this Lease with respect to any item of Equipment shall be for the period as
set forth in the Schedule. Lessee hereby gives Lessor authority to insert the
actual commencement date and date of first monthly rental for any item of
Equipment in any Schedule as well as such items as serial numbers if such are
not already inserted when such Schedule is executed by Lessee. "Seller" as used
in this Lease means the supplier from which Lessor acquires any item of
Equipment.
2. Rent.
Lessee shall pay to Lessor rent for each item of Equipment in the amounts and at
the times specified in the Schedule. Any payment not made when due shall, at the
option of Lessor, bear late charges thereon calculated at the rate of 1 1/2% per
month, but in no event greater than the highest rate permitted by relevant law.
All rent shall be paid at Lessor's place of business shown above, or such other
place as Lessor may designate by written notice to the Lessee. All rents shall
be paid without notice or demand and without abatement, deduction or set off of
any amount whatsoever. The operation and use of the Equipment shall be at the
risk of Lessee and not of Lessor and the obligation of Lessee to pay rent
hereunder shall be unconditional.
3. No Warranties by Lessor; Maintenance and Compliance with Laws.
Lessor, not being the manufacturer of the Equipment, nor manufacturer's agent,
MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE
FITNESS, QUALITY, DESIGN, CONDITION, CAPACITY, SUITABILITY, MERCHANTABILITY
OR PERFORMANCE OF THE Equipment OR OF THE MATERIAL OR WORKMANSHIP THEREOF, IT
BEING
TO BE BORNE BY LESSEE AT ITS SOLE RISK AND EXPENSE, Lessee accordingly agrees
not to assert any claim whatsoever against Lessor based thereon. Lessee further
agrees, regardless of cause, not to assert any claim whatsoever against Lessor
for loss of anticipatory profits or consequential damages. Lessor shall have no
obligation to install, erect, test, adjust or service the Equipment. Lessee
shall look to the manufacturer and/or Seller for any claims related to the
Equipment. Lessor hereby acknowledges that any manufacturer's and/or Seller's
warranties are for the benefit of both Lessor and Lessee.
No oral agreement, guaranty, promise, condition, representation or warranty
shall be binding; all prior conversations, agreements or representations related
hereto and/or to the Equipment are integrated herein, and no modification hereof
shall be binding unless in writing signed by Lessor. Lessee agrees, at its own
cost and expense:
(a) to pay all shipping charges and other expenses incurred in connection with
the shipment of the Equipment by the Seller to Lessee;
(b) to pay all charges and expenses in connection with the operation of each
item of Equipment;
(c) to comply with all governmental laws, ordinances, regulations, requirements
and rules with respect to the use, maintenance and operation of the
Equipment; and
(d) to make all repairs and replacements required to be made to maintain the
Equipment in the condition set forth in Rider A to the Schedule.
4. Insurance.
Lessee shall maintain at all times on the Equipment, at its expense, all-risk
physical damage insurance and comprehensive general and/or automobile (as
appropriate) liability insurance (covering bodily injury and property damage
exposures including, but not limited to, contractual liability and products
liability) in such amounts, against such risks, in such form and with such
insurers as shall be satisfactory to Lessor; provided, that the amount of
all-risk physical damage insurance shall not on any date be less than the
greater of the full replacement value or the Stipulated Loss Value of the
Equipment as of such date.
Each physical damage insurance policy will name Lessor as loss payee. Each
liability insurance policy will name Lessor as additional insured. Each
insurance policy will also require that the insurer give Lessor at least thirty
(30) days prior written notice of any alteration in or cancellation of the terms
of such policy and require that Lessor's interests be continued insured
regardless of any breach or violation by Lessee or others of any warranties,
declarations or conditions contained in such insurance policy. In no event shall
Lessor be responsible for premiums, warranties or representations to any insurer
or any agent thereof. Lessee shall furnish to Lessor a certificate or other
evidence satisfactory to Lessor that such insurance coverage is in effect, but
Lessor shall be under no duty to ascertain the existence or adequacy of such
insurance. The insurance maintained by Lessee shall be primary without any right
of contribution from insurance which may be maintained by Lessor. Lessee shall
be liable for all deductible portions of all required insurance. Lessor may, at
its own expense, for its own benefit, purchase insurance in excess of that
required under this Lease Agreement Physical damage insurance proceeds shall be
applied as set forth in Section 5.
5. Loss and Damage.
Lessee agrees to assume and bear the entire risk of any partial or complete loss
with respect to the Equipment from any and every cause whatsoever including
theft, loss, damage, destruction or governmental taking, whether or not such
loss is covered by insurance or caused by any default or neglect of Lessee.
Lessee agrees to give Lessor prompt notice of any damage to or loss of any
Equipment. All physical damage insurance proceeds shall be payable directly to
Lessor. If any of the Equipment is lost, destroyed, damaged beyond repair, or
taken by governmental action, Lessee shall pay to Lessor on the next rent
payment date following such loss or taking the Stipulated Loss Value for such
Equipment (computed as of the rent payment date on or immediately preceding the
date of such loss or taking), and any other amounts then due and owing hereunder
(including all rent payments due on or prior to the date of such Stipulated Loss
Value payment) with respect to that Equipment, and the Lease for such Equipment
shall terminate when such payment is made. Following payment of any Stipulated
Loss Value, and if no Event of Default as defined in Section 10 has occurred and
remains continuing, Lessor will then:
(a) transfer to Lessee Lessor's rights to such Equipment "as-is, where-is and
with all defects," without recourse and without representation or warranty,
express or implied, other than a warranty that the Equipment is free and
clear of any liens created by Lessor; and
(b) remit to Lessee any physical damage insurance proceeds arising out of such
loss up to the amount of the Stipulated Loss Value paid.
Lessee shall determine in the exercise of its reasonable judgment whether the
Equipment is damaged beyond repair, subject to Lessor's approval. In the event
of damage or loss which does not result in damage beyond repair or a total loss
of the Equipment or any item thereof, Lessee shall cause the affected Equipment
to be restored to the condition required by the
terms of this Lease. Upon completion of such repair and after supplying Lessor
with satisfactory evidence thereof (and provided no Event of Default has
occurred and remains continuing), Lessee shall be entitled to receive any
insurance proceeds or other recovery to which Lessor would otherwise be entitled
in connection with such loss up to the amount expended by Lessee in making the
repair.
Lessor shall not be obligated to undertake by litigation or otherwise the
collection of any claim against any person for loss of, damage to, or
governmental taking of the Equipment, but Lessor will cooperate with Lessee at
Lessee's expense to pursue such claims.
Except as expressly provided above, the total or partial destruction of any
Equipment or Lessee's total or partial loss of use or possession thereof shall
not release or relieve Lessee from its obligations under this Master Lease or
any Schedule including the duty to pay the rent(s) herein provided.
6. Taxes.
Lessee shall pay, and shall indemnify and hold Lessor harmless from and against,
on an after-tax basis, all fees, taxes, withholdings, assessments and other
governmental charges, however designated together with any penalties, fines or
interest, if any, thereon, (collectively, the "Impositions") which are at any
time levied or imposed against Lessor, Lessee, this Lease, the Equipment or any
part thereof by any Federal, state, local or foreign government or taxing
authority upon, with respect to, as a result of or measured by (i) the Equipment
(or any part thereof), or this Lease or the interest of the Lessor therein; or
(ii) the purchase, ownership, delivery, leasing, possession, maintenance, use,
operation, return, sale or other disposition of the Equipment or any part
thereof; or (iii) the rentals, receipts or earnings payable under this Lease or
otherwise arising from the Equipment or any part thereof; excluding, however,
taxes based on or measured by the net income of Lessor. Lessor (a) shall pay,
and promptly upon receipt of Lessor's invoice therefor Lessee shall reimburse
Lessor for paying, any Impositions, and (b) in case any report or return is
required to be filed with respect to any Impositions, Lessor will make such
report or return to show Lessor's ownership of the Equipment. Lessor and Lessee
may instead agree in writing that Lessee will pay any Impositions directly or
file any such reports or returns. Lessee's obligations under this Section shall
survive the expiration or termination of this Lease.
7. Lessors Title, Right of Inspection and Identification of Equipment.
Title to the Equipment shall at all times remain in Lessor and Lessee will at
all times protect and defend, at its own cost and expense, the title of Lessor
from and against all claims, liens and legal processes of creditors of Lessee
and keep all the Equipment free and clear from all such claims, liens and
processes. The Equipment is and shall remain personal property. Upon the
expiration or termination of this Lease with respect to any item of Equipment
Lessee shall return such Equipment in accordance with the provisions set forth
in Rider A to the Schedule.
Lessor shall have the right from time to time during reasonable business hours
to enter upon Lessee's premises or elsewhere for the purpose of confirming the
existence, condition and proper maintenance of the Equipment and during any
period of storage Lessor shall also have the right to demonstrate and show the
Equipment to others. The foregoing rights of entry are subject to any applicable
governmental laws, regulations and rules concerning industrial security. Lessee
shall, upon the request of Lessor, and at its own expense firmly affix to the
Equipment, in a conspicuous place, such a decalcomania or metal plate as shall
be supplied by Lessor showing the Lessor as the owner and lessor of such
Equipment.
8. Possession, Use and Changes in Location of Equipment.
So long as Lessee shall not be in default under the Lease it shall be entitled
to the possession and use of the Equipment in accordance with the terms of this
Lease. The Equipment shall be used in the conduct of the lawful business of
Lessee, and no item of Equipment shall be removed from its location shown on the
Schedule, without the prior written consent of Lessor. Lessee shall not, without
Lessor's prior written consent, part with possession or control of the Equipment
or attempt or purport to sell, pledge, mortgage or otherwise encumber any of the
Equipment or otherwise dispose of or encumber any interest under this Lease.
9. Performance of Obligations of Lessee by Lessor.
In the event that the Lessee shall fail duly and promptly to perform any of its
obligations under the provisions of Sections 3, 4, 5, 6, and 7 of this Lease,
Lessor may, at its option, perform the same for the account of Lessee without
thereby waiving such default, and any amount paid or expense (including
reasonable attorneys' fees), penalty or other liability incurred by Lessor in
such performance, together with interest at the rate of 1 1/2% per month thereon
(but in no event greater than the highest rate permitted by relevant law) until
paid by Lessee to Lessor, shall be payable by Lessee upon demand as additional
rent for the Equipment Lessee shall be responsible for and pay to Lessor a
returned check fee, not to exceed the maximum permitted by law, which fee will
be equal to the sum of (i) the actual
bank charges incurred by Lessor plus (ii) all other actual costs and expenses
incurred by Lessor. The returned check fee is payable upon demand as additional
rent under this Lease.
10. Default.
An Event of Default shall occur if:
(a) Lessee fails to pay when due any installment of rent and such failure
continues for a period of 10 days;
(b) Lessee shall fail to perform or observe any covenant, condition or
agreement to be performed or observed by it hereunder and such failure
continues uncured for 15 days after written notice thereof to Lessee by
Lessor;
(c) Lessee ceases doing business as a going concern, makes an assignment for
the benefit of creditors, admits in writing its inability to pay its debts
as they become due, files a voluntary petition in bankruptcy, is
adjudicated a bankrupt or an insolvent, files a petition seeking for itself
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar arrangement under any present or future statute, law
or regulation or files an answer admitting the material allegations of a
petition filed against it in any such proceeding, consents to or acquiesces
in the appointment of a trustee, receiver, or liquidator of it or of all or
any substantial part of its assets or properties, or if it or its
shareholders shall take any action looking to its dissolution or
liquidation;
(d) within 60 days after the commencement of any proceedings against Lessee
seeking reorganization, arrangement, readjustment, liquidation, dissolution
or similar relief under any present or future statute, law or regulation,
such proceedings shall not have been dismissed, or if within 60 days after
the appointment without Lessee's consent or acquiescence of any trustee,
receiver or liquidator of it or of all or any substantial part of its
assets and properties, such appointment shall not be vacated;
(e) Lessee attempts to remove, sell, transfer, encumber, part with possession
or sublet the Equipment or any item thereof;
(f) Lessee defaults in payment or performance of any obligation or indebtedness
of any kind or description, whether direct, indirect, absolute or
contingent, due or to become due, now existing or hereafter arising owing
to Lessor or any of its agents or affiliates; or
(g) Any warranty, representation or statement made or furnished to Lessor by or
on behalf of Lessee in or in connection with this Lease proves to have been
false in any material respect when made or furnished.
11. Remedies Upon Default.
Upon the occurrence of an Event of Default, Lessor shall have all the rights and
remedies provided by applicable law and by this Lease. Notwithstanding that this
Agreement is a lease and title to the Equipment is at all times in Lessor,
Lessor may nevertheless at its option choose those rights and remedies of a
secured party under the Uniform Commercial Code. In addition, Lessor, at its
option, may:
(a) by notice to Lessee terminate this Lease effective on the date such Event
of Default first occurred;
(b) proceed by appropriate court action or actions or other proceedings either
at law or equity to enforce performance by the Lessee of any and all
covenants of this Lease and to recover damages for the breach thereof;
(c) Lessor and/or its agents may without notice or liability or legal process,
enter into any premises of or under control or jurisdiction of Lessee or
any agent of Lessee where the Equipment may be or by Lessor is believed to
be, and repossess all or any item thereof, disconnecting and separating all
thereof from any other property and using all force necessary or permitted
by applicable law so to do, Lessee hereby expressly waiving all further
rights to possession of the Equipment and all claims for injuries suffered
through or loss caused by such repossession or demand that Lessee deliver
the Equipment forthwith to Lessor at Lessee's expense at such place as
Lessor may designate; and
(d) elect to sell, release or otherwise dispose of all or part of the Equipment
or to retain all or part thereof, in such manner and on such terms and
conditions as Lessor may determine in its sole discretion, with or without
notice to Lessee which Lessee hereby waives to the extent permitted by
applicable law (Lessor may sell or lease the Equipment at a time and
location of its choosing provided that the Lessor acts in good faith and in
a commercially reasonable manner);
(e) declare immediately due and payable any unpaid rent, late charges and any
other amounts due hereunder that accrued on or before the occurrence of the
Event of Default, plus as liquidated damages for loss of the bargain and
not as a penalty, an amount equal to the Stipulated Loss Value for the
Equipment as of the rent payment date immediately preceding the date Lessor
declares the Lease in default, and, in addition, all attorney and court
costs incurred by Lessor relating to the enforcement of its rights under
the Lease. Lessor may sell the Equipment at private or public sale, in bulk
or in parcels, with or without notice, without having the Equipment
present at the place of sale; or Lessor may lease, otherwise dispose of or
keep idle all or part of the Equipment, subject, however, to its obligation
to mitigate damages; and Lessor may use Lessee's premises for any or all of
the foregoing. The proceeds of sale, lease or other disposition, if any, of
the Equipment shall be applied (1) to all Lessor's costs, charges and
expenses incurred in taking, removing, holding, repairing and selling,
leasing or otherwise disposing of the Equipment including attorney fees;
then (2) to the extent not previously paid by Lessee, to pay Lessor the
Stipulated Loss Value of the Equipment plus any accrued and unpaid rent,
late charges, indemnities and any other amounts then remaining unpaid under
the Lease; then (3) to reimburse to Lessee any such sums previously paid by
Lessee as liquidated damages; (4) any surplus shall be retained by Lessor.
In no event shall Lessee upon demand by Lessor for payment hereunder or
otherwise be obligated to pay any amount in excess of that permitted by
law.
The waiver by Lessor of any breach of any obligation of Lessee shall not be
deemed a waiver of any future breach of the same or any other obligation. No
remedy of Lessor hereunder shall be exclusive of any remedy herein or by law
provided, but each shall be cumulative and in addition to every other remedy.
12. Indemnity.
Lessee agrees that Lessor shall not be liable to Lessee for, and Lessee shall
indemnify and save Lessor harmless from and against any and all liability, loss,
damage, expense, causes of action, suits, claims or judgments arising from or
caused directly or indirectly by:
(a) Lessee's failure to promptly perform any of its obligations under the
provisions of Sections 3, 4, 5, 6 and 7 of this Lease; or
(b) injury to persons or damage to property resulting from or based upon actual
or alleged use, operation, delivery or transportation of any or all of the
Equipment or its location or condition; or
(c) inadequacy of the Equipment, or any part thereof, for any purpose or any
deficiency or defect therein or the use or maintenance thereof or any
repairs, servicing or adjustments thereto or any delay in providing or
failure to provide any thereof or any interruption or loss of service or
use thereof or any loss of business; and shall, at its own cost and
expense, defend any and all suits which may be brought against Lessor,
either alone or in conjunction with others upon any such liability or claim
or claims and shall satisfy, pay and discharge any and all judgments and
fines that may be recovered against Lessor in any such action or actions,
provided, however, that Lessor shall give Lessee written notice of any such
claim or demand. Lessee agrees that its obligations under this Section 12
shall survive the expiration or termination of this Lease.
13. Lessee's Warranties.
Lessee warrants that each item of Equipment has the recovery period under
Section 168(c) of the Internal Revenue Code of 1986 as amended or any comparable
successor law ("Code") as set forth on the Schedule and will be eligible for
depreciation deductions determined by using the method specified in Section
168(b)(i) of the Code commencing with the taxable year of Lessor that includes
the delivery date and using a basis equal to Lessor's cost as set forth on the
Schedule; a reasonable estimate of the useful life of each item of Equipment is
at least 125% of its lease term; a reasonable estimate of the fair market value
of each item of Equipment at the end of its lease term is at least 20% of
Lessor's cost therefor; and Lessee will not use the Equipment in a manner which
will result in foreign source income for Lessor, and this Lease constitutes a
"qualified motor vehicle operating agreement" within the meaning of Section
7701(h)(2) of the Code, the Equipment constitutes "motor vehicles" within the
meaning of such Section 7701(h)(2) and the provisions of Section 18 hereof
constitute a "terminal rental adjustment clause" within the meaning of Section
7701(h)(3) of the Code.
14. Tax Indemnity.
Lessor has calculated the rent payments and Stipulated Loss Values for each
Schedule based in part on Lessee's warranties herein and on the assumptions that
Lessor shall be entitled to all tax benefits of ownership with respect to the
Equipment (the "Tax Benefits"), including but not limited to, (i) the
accelerated cost recovery deductions determined in accordance with Section
168(b)(1) of the Code for each item of Equipment based on the cost and
depreciable life thereof specified on the Schedule, (ii) deductions for interest
on any indebtedness incurred by Lessor to finance any item of Equipment and
(iii) sourcing of income and losses attributable to this Lease to the United
States. Lessee agrees to take no action inconsistent with the foregoing or which
would result in the loss, disallowance or unavailability to Lessor of all or any
part of the Tax Benefits. Lessee, for any reason whatsoever, including as a
result of any amendment to the Code or any other change in tax law occurring
after the date of the Lease ("Tax Law Change"), hereby indemnifies and holds
harmless Lessor from and against (i) any of the following: (1) the loss,
disallowance, unavailability or recapture of all or any part of the Tax
Benefits, if Lessor shall not be entitled or shall determine that it shall not
have substantial authority to claim, shall suffer a disallowance of, or shall be
required to recapture all or any part of the Tax Benefits; (2) Lessor's
originally contemplated after-tax rate of return ("Net Return") is otherwise
adversely affected by a Tax Law Change (including a tax rate change); (3) Lessor
shall be required to include in its gross income for any period before the
expiration or termination of this Lease any amount other than (a) the rent in
the respective specified monthly payment amounts and not prior to the respective
periods to which rent is allocable under the terms of this Lease and (b) any
other amounts to the extent not offset by deductions for such amounts in
Lessor's taxable year in which such amount
are includible in gross income; or (4) any item of income, gain, loss, deduction
or credit with respect to the Equipment shall be treated or derived from, or
allocable to, sources without the United States and consequently Lessor shall be
able to utilize as a credit against its Federal Income tax liability in any
year, a smaller amount of foreign taxes than it would have been able to utilize
had such item of income, gain, loss, deduction or credit not been treated as
derived from, or allocable to sources without the United States; plus (ii) all
interest, penalties, fines or additions to tax resulting from such loss,
disallowance, unavailability or recapture; plus (iii) all taxes required to be
paid by Lessor upon receipt of the indemnity set forth in this paragraph which
shall be computed at the highest marginal statutory tax rate then applicable to
Lessor. Any indemnity payments made by Lessee shall be calculated so as to allow
Lessor to maintain its Net Return with respect to the Lease. Payment shall be
made in immediately available funds within 30 days after receipt of a written
demand therefor from Lessor. In the event of an indemnity payment, Stipulated
Loss Values shall be adjusted by Lessor to those values determined by Lessor as
necessary to maintain Lessor's Net Return. For the purposes of this Section,
"Lessor" includes for all tax purposes the consolidated taxpayer group of which
Lessor is part.
15. Assignment, Notices and Waivers.
This Lease and all rights of Lessor hereunder shall be assignable by Lessor
without Lessee's consent, but Lessee shall not be obligated to any assignee of
Lessor except after written notice of such assignment from Lessor. Following
such assignment, solely for the purpose of determining assignee's rights
hereunder, the term "Lessor" shall be deemed to include or refer to Lessor's
assignee. Without the prior written consent of Lessor, Lessee shall not assign
this Lease or its interests hereunder or enter into any sub-lease with respect
to the Equipment covered hereby. All notices to Lessor shall be delivered in
person to an officer of the Lessor, or shall be sent certified mail return
receipt requested to Lessor at its address shown herein or at any later address
last known to the sender. All notices to Lessee shall be in writing and shall be
delivered by mail at its address shown herein or at any later address last known
to the sender. A waiver of a default shall not be a waiver of any other or a
subsequent default.
16. Further Assurances.
Lessee shall execute and deliver to Lessor, upon Lessor's request such
instruments and assurances as Lessor deems necessary or advisable for the
confirmation or perfection of this Lease and Lessor's rights hereunder and to
enable Lessor to fulfill all of its tax filing obligations. Lessee may not
terminate any Schedule without the written consent of Lessor. If Lessor in good
faith believes itself insecure or performance impaired, it may declare a default
hereunder or, instead of declaring a default, Lessor may demand, and Lessee
hereby agrees to give, additional Equipment or other collateral as security for
the obligations hereunder.
17. Lease Irrevocability.
This Lease is irrevocable for the full terms thereof as set forth in any
Schedule and for the aggregate rentals therein reserved and the rent shall not
abate by reason of termination of Lessee's right of possession and/or the taking
of possession by the Lessor or for any other reason.
18. Terminal Rental Adjustment Clause.
(a) Sale of Equipment Subject to Subsection 18(b) hereof, the fair market sale
value of Equipment as of the final day of the lease term (the "Expiration
Date") shall be determined, and the Equipment shall be sold, as follows:
(i) Purchase by Highest Bidder. During the 90-day period prior to the
Expiration Date, Lessor shall obtain bids for all items of Equipment from
prospective purchasers. Lessee shall be free to bid on such Equipment
during such period. Lessor shall sell such Equipment to the highest bidder
on an "as-is, where-is" basis within ten (10) days after the Expiration
Date, by delivery of a bill of sale, without representation or warranty,
express or implied, except as to the absence of liens created by Lessor,
provided that the conditions of such sale shall not be deemed to limit
Lessee's obligations under Section 7 hereof. Lessor shall inform each
bidder, including Lessee, of the amount of all bids received from other
bidders before and after receipt of a bid from such bidder and each bidder,
including Lessee, may bid as many times as it chooses during the 100-day
aggregate period referred to above. Lessee shall pay or reimburse to Lessor
all taxes (other than income taxes on any gain on such sale), costs and
expenses (including legal fees and expenses) incurred or paid by Lessor in
connection with such sale or of the sale described in Subsection 18(a)(ii).
The Actual Residual Value shall be deemed to equal the purchase price
received for such Equipment by Lessor net of all amounts referred to in the
preceding sentence.
(ii) No Available Bidder. In the event no bids are received or the Equipment is
not sold during the 100-day aggregate period referred to above, Lessee and
Lessor agree that a disposition of such Equipment shall have occurred and,
in view of the uncertainties of market conditions and the parties'
inability to predict what the actual sale price of such Equipment would be,
that the Actual Residual Value shall equal zero for purposes of the rental
adjustment set forth in Subsection 18(b) hereof, provided that if and when
Lessor sells such Equipment, the Actual Residual Value shall be deemed to
equal the purchase price received for such Equipment by Lessor net of all
amounts referred to in the fifth sentence of the preceding paragraph, and
the rental adjustment set forth in Subsection 18(b) hereof shall be
recomputed and payable on such basis, without interest.
(b) Rent Adjustment.
(i) In the event (1) that the Actual Residual Value of the Equipment is less
than the percentage ("TRAC percentage") of the aggregate Lessor's cost set
forth in the Schedule (the "Estimated Residual Value"), then Lessee shall
pay to Lessor, as an adjustment to the rent payable on the Expiration
Date, an amount equal to the excess of the Estimated Residual Value over
such Actual Residual Value and (2) that if the Actual Residual Value of
the Equipment is greater than the Estimated Residual Value, then Lessor
shall pay to Lessee, as an adjustment to the rent payable on the
Expiration Date, an amount equal to the excess of such Actual Residual
Value.
(ii) In the event that the Equipment is sold by Lessor pursuant to Section 11
hereof and the amount realized on such sale, net of all taxes, costs and
expenses (including without limitation, legal fees and expenses) incurred
or paid by Lessor in connection with such sale of such Equipment, is in
excess of the sum of (1) the Stipulated Loss Value determined as of the
rent payment date on or immediately preceding the date of such sale, and
(2) all accrued and unpaid rent for such Equipment due on all rent payment
dates up to and on the date of such sale (together with interest on such
amounts at the late charge rate from such rent payment dates), then Lessor
shall pay to Lessee, as an adjustment to the rent payable hereunder, an
amount equal to such excess.
(iii) Any payments required to be made by this Subsection 18(b) shall be made,
in the event the Equipment is not sold, on the Expiration Date, and, in
the event such Equipment is sold, on the date of such sale. Lessor's
obligation to sell such Equipment to Lessee under Subsection 18(a) hereof
is contingent upon receipt by Lessor of the Equipment and the amount, if
any, payable to Lessor by Lessee under this Subsection 18(b).
19. Miscellaneous.
(a) This Lease constitutes the entire agreement between Lessor and Lessee with
respect to the Equipment and supersedes all prior correspondence between
the parties. No covenant, condition or other term of provision hereof
shall be deemed waived, amended, or modified by either party unless such
waiver, amendment, or modification is in writing and signed by each of the
parties hereto. Section headings are for convenience only and shall not be
construed as part of this Lease.
Lessee's initials /s/ KND
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(b) This Lease shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except as otherwise
provided herein.
(c) Any provision of this Lease which may be prohibited or unenforceable in
any jurisdiction shall not, as to such jurisdiction, invalidate the
remaining provisions hereof and shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(d) LESSOR AND LESSEE IN ANY LITIGATION RELATING TO OR IN CONNECTION WITH THIS
LEASE IN WHICH THEY SHALL BE ADVERSE PARTIES WAIVE TRIAL BY JURY.
(e) In the event this Lease or any part hereof is deemed to be a lease
intended as security, Lessee grants Lessor a security interest in each
item of Equipment as security for all of Lessee's indebtedness and
obligations owing under this Lease and under each Schedule as well as all
other present and future indebtedness and obligations of Lessee to Lessor
of every kind and nature whatsoever.
If Lessee is a corporation, this Lease is executed by authority of its Board of
Directors. If Lessee is a partnership or joint venture, this Lease is executed
by authority of all its partners or co-venturers.
Dated: 3-10-2000
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Lessee:
Ready Mix, Inc.
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Name of individual, corporation or partnership
By /s/ Kenneth D. Nelson Title Vice President
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If corporation, have signed by President, Vice President or Treasurer,
and give official title.
If owner or partner, state which.
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By /s/ Kathy Taylor Title Agent
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________________________________________________________________________________
If Lessee is a partnership, enter.
Partners' names Home addresses
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