EXHIBIT 10.274
TRUCK LEASE AGREEMENT
(FLEET-OPEN-END/NON-MAINTENANCE)
[CITICAPITAL LOGO]
THIS LEASE AGREEMENT is made as of 04/01/2004 by and between CITICAPITAL
COMMERCIAL LEASING CORPORATION (hereinafter called "Lessor"), AN INDIANA
CORPORATION with a place of business located at 2890 GATEWAY OAKS DRIVE, SUITE
220 SACRAMENTO CA 95833 and READY MIX, INC. (hereinafter called "Lessee"), a NV
corporation with its principal place of business located at 3430 E FLAMINGO ROAD
LAS VEGAS NV 89121.
IN CONSIDERATION of the mutual covenants hereinafter contained, Lessor
hereby leases to Lessee, and Lessee hereby leases from Lessor, one or more
vehicles as shall from time to time be described in Schedules, Vehicle Purchase
Orders or Delivery Receipts executed by authorized employees and agents of
Lessee and accepted by Lessor, at its sole discretion, for the rental and lease
term and upon the terms and conditions set forth below:
1. THIS AGREEMENT is a contract of leasing only and shall consist of the
general terms and conditions stated herein which shall be applicable to every
Vehicle leased hereunder, any Schedule which may hereafter be attached hereto
describing certain Vehicles either individually or as a class and the specific
terms for each, and Delivery Receipts or other evidences of ordering or delivery
for each Vehicle delivered to Lessee by Lessor. Without limiting the generality
of the above, it is agreed that the terms hereof may be changed for specific
Vehicles by the Schedules relating thereto. All of said Schedules, Delivery
Receipts and evidences of ordering or delivery are hereby incorporated by
reference and made a part hereof. Wherever used herein, the term "Vehicle" or
"Vehicles" shall mean such passenger automobiles, trucks and other vehicles and
trailers as are leased hereunder from time to time, together with all additional
equipment and accessories thereon. Vehicles shall at all times remain the
property of, and shall be registered in the name of Lessor, but shall be under
the full and complete control of Lessee. During the term of this lease renewal
of registration in the name of Lessor shall be the responsibility and expense of
Lessee, and Lessor will, upon Lessee's request, furnish to Lessee a power of
attorney to this end. Lessee recognizes that it has acquired no right, title,
option or interest in or to any of the Vehicles and agrees that it shall not
assert any claim in or to an interest in any Vehicle other than that of a
lessee. Lessee agrees to accept delivery of all vehicles ordered by Lessor
pursuant to the request of Lessee. Lessee shall at all times, and at its sole
expense and cost, keep the Vehicle(s) free from all levies, attachments, liens
and encumbrances and other judicial process other than those arising solely from
acts of Lessor. Lessee shall give Lessor immediate written notice of any action
taken by a third party which may jeopardize Lessor's rights in any Vehicle and
shall indemnify and hold Lessor harmless from any loss or damages caused
thereby.
2. LESSEE AGREES to pay Monthly Rental for each Vehicle in the amounts
stated in the Schedule "A" applicable to such Vehicle. Such amounts shall be
equal to the product of the Monthly Rental Factors stated in such Schedule for
such Vehicle multiplied by the Schedule "A" Value of such Vehicle stated in such
Schedule.
Schedule "A" Value as used herein shall mean the amount designated
as such in the Schedule "A" of such Vehicle, representing the value of such
Vehicle as determined by Lessor.
Lessee acknowledges that Schedule "A" Values set forth in the
Schedules are based upon the manufacturer's price and the amount of required
equipment in effect on the date the Schedule is executed. If the manufacturer's
price increases or decreases or if additional items of equipment are required on
the Vehicle prior to or at the time of delivery of the Vehicle to Lessee, the
Schedule "A" Value of such Vehicle will be adjusted by the amount of such
increase or decrease and by the cost of Lessor of the additional equipment.
In addition to the Monthly Rental. Lessee shall pay to Lessor upon
demand and as Additional Rental all other charges payable by Lessee which have
been paid by Lessor. Lessee also agrees to pay to Lessor, at the time each
Vehicle is delivered, the amount of any Advance Rentals noted in the Schedule
applicable to such Vehicle. All Advance Rentals shall be held by Lessor and,
provided Lessee is not in default, applied to the payment of the last Monthly
Rentals which are due for the Vehicle to which they relate. If Lessee is in
default Lessor may apply the Advance Rentals to any of Lessee's obligations
hereunder as Lessor in its sole discretion may determine. No interest shall
accrue to Advance Rentals.
3. THE TERM of this Lease in relation to each Vehicle shall extend for a
period not in excess of the Maximum Term noted in the Schedule "A" relating to
such Vehicle. The Lease Term shall commence on the earlier of (i) the date when
such Vehicle is delivered to Lessee or (ii) forty-eight (48) hours after Lessee
has been notified, orally or in writing, that the Vehicle is ready for delivery
(hereinafter called the "Delivery Date"). If the Delivery Date for such Vehicle
is not on the first day of a month, the Monthly Rental for such Vehicle shall
commence as of the first day of the next succeeding calendar month. Lessee may
terminate the Lease as to any Vehicle on any anniversary of the Delivery Date
for such Vehicle by (i) giving notice to Lessor; (ii) returning such Vehicle to
Lessor on such anniversary date in accordance with Section 8 hereof; and (iii)
paying to Lessor any amount owing pursuant to Section 9 hereof relating to such
Vehicle. For each Vehicle so terminated, the term of this Lease shall end on the
earlier of (i) the date Vehicle is sold in accordance with Section 8 hereof or
(ii) forty-five (45) days after the later of (a) such anniversary date or (b)
the date the Vehicle is actually returned to Lessor and for each Vehicle as to
which the Maximum Term has expired, the term of this Lease shall end on the
earlier of (i) the date such Vehicle is sold in accordance with Section B hereof
or (ii) forty-five (45) days after the later of (a) the last day of the Maximum
Term or (b) the date the Vehicle is actually returned to Lessor. With Lessor's
consent, Lessee may terminate this Lease as to any Vehicle on a date other than
the anniversary of the Delivery Date (i) within the first twelve months of the
Lease Term, provided that Lessee pays Lessor upon such termination a termination
fee equal to the greater of 2% of the Schedule A Value of the applicable
Vehicles or $500 per Vehicle; or (ii) at any time after the first twelve months
of the Lease Term, provided that Lessee pays Lessor upon such termination a
termination fee equal to the greater of 1% of the Schedule A Value of the
applicable Vehicles or $500 per Vehicle, such termination fee to be paid in
addition to all other charges due hereunder and such termination fee to in no
event exceed the maximum amount which may be charged under applicable law.
Lessee may terminate this Lease as to any Vehicle effective at any other time
only upon terms hereafter agreed to by Lessor.
Lessor's failure to deliver vehicles at the time and places
specified, by reason of labor disorders or other circumstances or events beyond
the control of Lessor, shall not impute liability of any kind to Lessor.
621279 Rev 12/01
1.01 [CT]
Page 1 of 6
ORIGINAL FOR CITICAPITAL
CITICAPITAL is a service mark of Citicorp. A member of citigroup
4. THIS LEASE MAY BE TERMINATED by either party regarding vehicles not
then ordered or under lease by giving written notice thereof to the other party
at least five (5) days in advance of the proposed termination date. After the
giving of such notice no additional or replacement vehicles will be delivered
for lease hereunder. Notwithstanding expiration or termination, all of the
provisions of the Lease shall continue in full force and effect with respect to
each Vehicle then ordered pursuant to request of Lessee or then under lease
until the end of the lease term for such Vehicle as provided in Section 3
hereof.
5. USE OF VEHICLES under this Lease is permitted only in the conduct of
Lessee's business in the United States and occasionally in Canada and only for
lawful purposes. No Vehicle shall be used for transportation of passengers or of
material designated as extra-hazardous, radioactive, flammable or explosive.
Lessee will permit the Vehicles to be operated only by safe and careful drivers
who are qualified and properly licensed in accordance with the laws of the
jurisdiction where such Vehicles are used. All operators of the Vehicles will be
conclusively presumed to be the agents, employees or servants of Lessee and not
of Lessor. Upon any complaint from Lessor specifying illegal, negligent,
reckless, careless or abusive handling of the Vehicles, Lessee shall promptly
take such steps as may be necessary to stop and prevent the recurrence of any
such practice. Lessee shall in all respects comply, and cause all persons
operating the Vehicles to comply, with all applicable requirements of law
(including but not limited to rules, regulations, statues and ordinances)
relating to the licensing maintenance and operation of the Vehicles (including
weight limitations, tire requirements, load, axle and spring limits) and with
all terms and conditions of polices of insurance relating to the Vehicle. Lessee
shall immediately notify lessor on any change of place of permanent garaging of
any Vehicle. Lessee agrees that it will not load any Vehicle in excess of the
lesser of (i) the payload capacity noted in the manufacturer's specifications
for such Vehicle or (ii) the maximum amount permitted by applicable law.
6. MONTHLY RENTAL and all other amounts owing by Lessee shall be paid to
Lessor at its address stated on page one hereof or at such other place as Lessor
shall hereafter notify Lessee in writing.
Lessee will pay Lessor, in advance, on the first day of each calendar
month the Monthly Rental for each Vehicle set forth in Schedule "A", whether or
not Lessee shall have received a statement for such amount. If the delivery date
of a Vehicle is other that the first day of the month, the first full Monthly
Rental for each such Vehicle will begin as of the first day of the next
succeeding month and Lessee will pay Lessor the Monthly Rental on a daily
prorated basis for the month of delivery. Lessor will render to Lessee monthly
statements of the amounts payable on all Vehicles under this lease and Lessee
shall, within ten (10) days after receipt of such statements, make payment by
one check for each such statement to the order of Lessor for the Monthly Rental,
Additional Rent, and other sums, if any, covered by such statements without
abatement, off-set or counterclaim arising out of any circumstance whatsoever.
Lessee hereby waives any and all existing or future claims of off-set or claims
against the Monthly Rentals, Additional Rents, and Adjusted Rents due hereunder,
and agrees to make such payments regardless of any off-set or claim which may be
asserted by Lessee or on its behalf. For each Monthly Rental or other sum due
hereunder 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 Monthly Rental or other sum due
hereunder, provided that such a delinquency charge is not prohibited by law,
otherwise at the highest rate Lessee can legally obligate itself to pay and/or
Lessor can legally collect.
7. FEES, TAXES, GOVERNMENTAL ASSESSMENTS AND CHARGES (INCLUDING INTEREST
AND PENALTIES THEREON) of whatsoever nature, by whomsoever payable, (other than
federal, state or local taxes levied on the net income of Lessor) levied,
assessed or incurred during the entire term of the Lease in connection with the
Vehicles including, but not limited to, the titling and registration of the
Vehicles in all jurisdictions required by the nature of Lessee's business and
the purchase, sale, ownership, rental, use, inspection and operation thereof,
shall be paid by Lessee. In the event any of said fees, taxes, governmental
assessments and charges shall have been paid by Lessor, or if Lessor is required
to collect or pay any thereof, Lessee shall reimburse Lessor therefor, upon
demand, as Additional Rent, to the end that Lessor shall receive the rental as
provided in Sections 2 and 9 hereof as a net return on the Vehicles. If
requested by Lessor, Lessee agrees to file, or to refrain from filing, on behalf
of Lessor in form satisfactory to Lessor and before the due date thereof, all
required tax returns and reports concerning the Vehicles 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 relative to the use of the
Vehicles and/or pertaining to the aforesaid fees, taxes, governmental
assessments and charges. Lessee's obligations under this Section shall survive
the expiration or termination of this Lease.
8. LESSEE SHALL RETURN each Vehicle to Lessor, at Lessee's expense, at the
expiration or termination of this Lease in relation to such Vehicle at the
location where delivery was made or at such other location as is designated by
Lessor in the same working order, condition and repair as when received by
Lessee, excepting only reasonable wear and tear caused by normal usage of such
Vehicle, together with all license plates, registration certificates, or other
documents relating to such Vehicle. Upon request of Lessee, Lessor may at its
sole discretion allow Lessee to retain some or all of such license plates or
other documents. Unless otherwise agreed by Lessor, Lessee shall give Lessor at
least sixty (60), and not more than ninety (90), days notice of the return of
any Vehicle. If Lessee does not surrender a Vehicle to Lessor as herein
provided, Lessee will be in default of this Lease as to such Vehicle, and Lessee
shall pay Lessor, as liquidated damages and not as a penalty, an amount equal to
one hundred ten percent (110%) of the Monthly Rental applicable to such Vehicle.
Such payment shall commence with the month immediately following the end of the
Lease Term and shall continue thereafter monthly until the Vehicle 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 Lessee's retaining possession of the Vehicle beyond the end of the
Lease Term. In addition, Lessee shall make all other payments and keep all other
obligations and undertakings required of Lessee under any and all provisions of
this lease as though such termination or expiration had not occurred.
Notwithstanding the foregoing, Lessor shall have the right to obtain immediate
possession of the Vehicle at any time after the end of the Lease Term for such
Vehicle. After said return, Lessor shall cause such Vehicle to be sold a public
or private sale, at wholesale, for the highest cash offer received and still
open at the time of sale. The "net sale proceeds" for said Vehicle shall be the
net amount received and paid to Lessor after deducting the cost of sale, the
cost of cleaning, repairing, equipping or transporting said Vehicle and any
other expenses of Lessor in connection therewith.
9. FINAL ADJUSTMENT for each Vehicle will be made upon receipt of the net
sale proceeds therefor and, unless any default shall have occurred and except as
provided below; Lessor shall pay to Lessee the amount, if any, by which the sum
of (a) the net sale proceeds, plus (b) surplus insurance recoveries, if any, on
such Vehicle, exceeds the sum of the (c) Termination Value, as hereinafter
defined, calculated as of the date of receipt of the last Monthly Rental
received by the Lessor with respect to such Vehicle, plus (d) all accrued and
unpaid Monthly Rentals and all other amounts then due and remaining unpaid.
"Termination Value", as used in this Lease, as of any date other than after the
scheduled expiration of the Lease Term for the Vehicle, shall mean the amount
equal to the then present worth of all unaccrued Monthly Rentals plus the then
present worth of the Residual Value specified in the Schedule "A" relating to
such Vehicle (determined by discounting such Monthly Rentals from their
respective due dates at the Termination Value Rate specified in the Schedule "A"
relating to such Vehicle, and by discounting such Residual Value from the first
day of the month following the month in which the first Monthly Rental is due at
the Termination Value Rate), compounded at the same intervals as such Monthly
Rentals are payable. The Value as of the scheduled
621279 Rev 12/01
1.01 [CT]
Page 2 of 6
ORIGINAL FOR CITICAPITAL
expiration of the Lease Term, and any date thereafter, shall mean the Residual
Value. If the sum of items (a) and (b) above is less than The Termination Value,
Lessee shall, within ten (10) days after notice thereof, pay the deficiency to
Lessor as Adjusted Rental without abatement, off-set or counterclaim arising out
of any circumstance whatsoever. Lessor shall promptly determine the aforesaid
amounts and shall render statements therefor to Lessee. Lessor may apply any
sums received as proceeds from any Vehicle which would otherwise be due to
Lessee hereunder against any other obligation of Lessee and Lessor may off-set
the amount of any such rental adjustment against any claim it may have against
Lessee.
10. LOSS OF OR DAMAGE TO EACH VEHICLE and loss of use thereof, from
whatsoever cause, are risks hereby assumed by Lessee from the date hereof until
such Vehicle is returned to and sold by Lessor. If any Vehicle is lost, stolen,
damaged or destroyed, Lessee shall promptly notify Lessor thereof. Lessor shall
have no obligation to repair or replace any such Vehicle. There shall be no
abatement of rental otherwise due hereunder during the period a Vehicle is
stolen or missing or during the time required for any repair, adjustment,
servicing or replacement of a Vehicle and Monthly Rentals will continue to
accrue until Final Adjustment is made. Final Adjustment in relation to lost,
stolen or destroyed Vehicles shall be made as provided in Section 9, promptly
after sale of the salvage and/or receipt of insurance proceeds, as applicable or
within forty-five (45) days after such loss, theft or destruction; whichever is
earlier. For purposes of Final Adjustment, lost or stolen Vehicles shall be
deemed to have been sold as of the date of such loss or theft, and the amount of
net sale proceeds therefor shall be deemed to be zero. In no event shall Lessor
be liable to Lessee, its employees or agents for business or other losses by
reason of loss, theft, destruction, repair, servicing or replacement of any
Vehicle.
11A. LIABILITY AND PHYSICAL DAMAGE INSURANCE, for bodily injury and
property damage to others, and damage to or loss of Vehicles by collision, fire,
theft, or otherwise, from the time each Vehicle is delivered to Lessee until the
Vehicle is sold after return to Lessor and legal title passes to the purchaser
thereof, shall be purchased and maintained by Lessee. Lessor shall not be
required to order vehicles for Lessee's use until binders disclosing insurance
coverage as herein provided have been delivered to Lessor. All insurance
policies shall provide primary coverage, shall name Lessor as additional insured
with respect to any liability insurance and as a loss-payee with respect to any
physical damage insurance, shall be in such amounts and with such insurers as
shall be approved by Lessor, shall provide for a minimum of fifteen (15) days
prior written notice to Lessor before cancellation or material change for any
reason, and shall provide that no act or default of any person other that Lessor
shall affect Lessor's right to recovery under such policies. Minimum
requirements shall be $ 250,000.00 for bodily injury or death to any one person;
$ 750,000.00 for any one accident; $ 100,000.00 for property damage; or a
combined single limit of $ 750,000.00 and actual cash value for fire, theft,
comprehensive and collision. Deductible amounts shall not be in excess of
[ILLEGIBLE] Lessor may from time to time by notice to Lessee specify higher
minimum requirements or additional risks to be insured against. Lessee shall
deliver the policies or other satisfactory evidence of insurance required
hereunder to Lessor, but Lessor shall be under no duty to examine such evidence
of insurance nor to advise Lessee in the event said insurance is not in
compliance with this Lease. Evidence of renewal of all expiring policies will be
delivered to Lessor at least sixty (60) days prior to their respective
expiration dates.
Lessor does not assume any liability for loss of or damage to the contents
or personal property contained in any Vehicles, and Lessee hereby releases and
saves Lessor free from any and all liability for loss of or damage to any
contents or personal property contained in said Vehicles regardless of the
circumstances under which such loss or damage may occur.
11B. INDEMNITIES: 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 of the transactions
contemplated hereby are consummated), imposed on, incurred by or asserted
against Lessor (which term as used herein shall include Lessor's successors,
assigns, agents, employees and servants) or the Vehicles (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 Vehicles including, but not limited to, (i)
claims as a result of latent, patent or other defects, whether or not
discoverable by Lessor and Lessee; (ii) claims for patent, trademark or
copyright infringement; (iii) tort claims of any kind, (whether based on strict
liability, 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); and (iv) claims for any interruption of service or loss of
business or anticipatory profits, or consequential damages. Lessor shall have no
responsibility or liability to Lessee, its successors or assigns, or any other
person with respect to any and all Liabilities and, irrespective of any
insurance coverage and commencing on the date each Vehicle is ready for delivery
to Lessee, Lessee hereby assumes liability for, and hereby agrees, at its sole
cost and expense, to indemnify, defend, protect, save and keep harmless Lessor
from and against any and all Liabilities. Where a Vehicle is operated by Lessee
with a trailer or other equipment not covered by this Lease, then in such event,
Lessee warrants that such trailer or other equipment will be in good operating
condition, compatible in all respects with the Vehicles with which such trailer
or other equipment is to be used, and in all respects in full compliance with
all federal, state and local statutes, ordinances, rules or regulations covering
said trailer or other equipment, including but not limited to all licensing and
operating requirements. Lessee hereby assumes liability for, and hereby agrees,
at its sole cost and expense, to indemnify, defend, protect, save and keep
harmless Lessor from and against any and all costs, expenses, damages,
(including damages for loss of any Vehicles leased hereunder) and Liabilities
resulting from Lessee's failure to properly connect, operate or maintain such
trailer or other equipment or to comply with any of the foregoing requirements
or from any other cause. Lessee agrees to give Lessor prompt written notice of
any claim or liability hereunder indemnified against.
11C. ALL OF LESSEE'S obligations, indemnities and liabilities under this
Section 11 shall survive the expiration or termination of this Lease.
Notwithstanding anything else herein to the contrary, in the event that Lessee
fails to procure or maintain insurance as above provided or fails to perform any
other of Lessee's duties or obligations as set forth in this Lease, Lessor may,
but shall have no obligation to, obtain such insurance at Lessee's expense and
perform such other duties and obligations of Lessee and any amounts expended
therefor shall be due and payable immediately as Additional Rent. Lessee shall
not use or permit the use of any Vehicle at any time when the insurance
described above is not in effect.
12A. EXPENSE OF OPERATION AND MAINTENANCE of Vehicles in accordance with
manufacturer's recommendations and in condition satisfactory to Lessor,
including but not limited to, cost of fuel, oil, grease, repairs, maintenance,
tires, tubes, storage, parking, tolls, fines and penalties shall be the
responsibility and obligation of Lessee. Lessee shall reimburse Lessor if Lessor
shall pay any of such operating or maintenance expenses. If tires or parts are
removed from a Vehicle, Lessee shall provide comparable replacements therefor
and such replacements shall become part of the Vehicles by accession. Lessor may
inspect the Vehicles and Lessee's books and records relating thereto at any time
during Lessor's usual business hours. Lessee shall not alter any Vehicle without
the prior written consent of Lessor unless such alteration is required by law.
Lessee agrees to remove all markings from the Vehicles, at Lessee's expense,
prior to the return of the Vehicles to Lessor.
12B. ADDITIONAL EQUIPMENT REQUIRED BY LAW. In the event that subsequent to
the Delivery Date of a Vehicle any federal, state or local law, ordinance, rule
or regulation shall require the installation of any additional equipment or
accessories, including but not limited to anti-pollution and/or safety devices,
or in the event that any other modifications of the Vehicles shall be required
by virtue of such law, ordinance, rule or regulation, then and in any of such
events, Lessee shall pay the full cost thereof, including installation expenses.
Lessor may, at its option, arrange for the installation of such equipment or the
performance of such modifications, and Lessee agrees to pay the full cost
thereof as Additional Rent, immediately upon receipt of an invoice for same.
621279 Rev 12/01
1.01 [CT]
Page 3 of 6
ORIGINAL FOR CITICAPITAL
13. NO WARRANTIES; LIMITATION ON LIABILITY: Lessee acknowledges and agrees
(i) that the Vehicles are of a size, design, capacity and manufacture selected
by Lessee, (ii) that the Lessor is not the manufacturer or seller of the
Vehicles or the manufacturer's or seller's agent and (iii) that LESSEE LEASES
THE VEHICLES "AS-IS" AND THAT LESSOR HAS NOT MADE, AND DOES NOT HEREBY 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 VEHICLES FOR ANY USE OR PURPOSE OR ANY OTHER
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED WITH RESPECT TO THE
VEHICLES. IN NO EVENT SHALL LESSOR BE LIABLE FOR LOSS OF OR DAMAGE TO CARGO,
LOSS OF PROFITS OR BUSINESS OR FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
OF ANY NATURE, HOWSOEVER CAUSED. Provided Lessee is not in default hereunder,
during the term of this Lease as to any Vehicle, Lessor hereby assigns to Lessee
any rights Lessor may have under any manufacturer's or seller's warranty, to the
extent that such assignment may be made without impairing Lessor's ability to
assert such rights in its own name under such warranty. No suit, claim or
settlement shall be brought or made by Lessee against or with the manufacturer
or seller unless Lessee shall have provided Lessor ten (10) days advanced
written notice thereof and any such action does not impair or compromise any
claims Lessor may have against any such manufacturer or seller.
14A. DEFAULT under this Lease shall occur in the event (i) Lessee fails to
pay when due any amount owed by it to Lessor or any affiliate (including,
without limitation, any direct or indirect parent, subsidiary or sister entity),
successor or assignee of Lessor under this Lease or if Lessee fails to pay when
due any amount owed by it to Lessor or any affiliate (including, without
limitation, any direct or indirect parent, subsidiary or sister entity),
successor or assignee of Lessor under any other document, agreement or
instrument or Lessee fails to provide or maintain the insurance required hereby;
(ii) any of Lessee's warranties or representations shall be or become untrue or
breached; (iii) Lessee shall fail, after fifteen (15) days notice thereof, to
correct any failure in the due performance and observance of any other of the
covenants and obligations of Lessee hereunder; (iv) Lessee shall default under
any other agreement with Lessor or its affiliates; (v) Lessee transfers a
substantial portion of its assets other than in the ordinary course of business;
(vi) a voluntary or involuntary petition under any statute relating to
bankruptcy, reorganization or receivership or under any other statute relating
to the relief of debtors shall be filed by or against Lessee or any guarantor of
Lessee's obligations hereunder; (vii) Lessee or any guarantor of Lessee's
obligations hereunder shall make an assignment for the benefit of creditors,
admit in writing to being insolvent or, if Lessee or such guarantor is a natural
person, if such person shall die; (viii) if there shall occur an (a)
appropriation, (b) confiscation, (c) retention, or (d) seizure of control,
custody or possession of any Vehicle 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"); (ix) if anyone in the control, custody or possession of any Vehicle
or the Lessee is accused or alleged or charged (whether or not subsequently
arraigned, indicted or convicted) by any Governmental Authority to have used any
Vehicle in connection with the commission of any crime (other than a misdemeanor
or moving violation); (x) there shall be a material change in management,
ownership or control of Lessee; (xi) there shall be a material adverse change in
any of the: (a) condition (financial or otherwise), business, performance,
prospects, operations or properties of the Lessee, (b) legality, validity or
enforceability of this Lease; (c) ability of the Lessee to repay the
indebtedness or perform its obligations under this Lease, or (d) rights and
remedies of the Lessor under the Lease are impaired; (xii) there shall be a
death of a majority owner of Lessee or a guarantor of the obligations of Lessee
under this Lease; or (xiii) there shall be any lien, claim or encumbrance on any
of the Vehicles hereunder.
14B. LESSOR'S REMEDIES:
(1) In the event of such default described above, Lessor shall have
no further obligation to lease vehicles to Lessee and, at the option of Lessor,
all rights of Lessee hereunder and in and to the Vehicles shall forthwith
terminate. Upon such termination Lessee agrees that Lessor may, without notice
to Lessee, either take possession of any or all Vehicles (with or without legal
process) or require Lessee to return all Vehicles forthwith to Lessor at such
location as Lessor shall designate. Lessee authorizes Lessor and Lessor's agents
to enter any premises where the Vehicles may be found for the purpose of
repossessing the same. If Lessor retakes possession of any of the Vehicles and
at the time of such retaking there shall be in, upon, or attached to the
Vehicles any property, goods, or things of value belonging to Lessee or in the
custody or control of Lessee, Lessor is hereby authorized to take possession of
such property, goods, and things of value and hold the same for Lessee or to
place such property, goods, or things of value in public storage for the account
of, and the expense of, Lessee. Lessor may at its option (i) sell any or all of
the Vehicles which are returned or repossessed pursuant to this Section and hold
Lessee liable for Adjusted Rental as provided in Section 9, or (ii) lease any or
all of the Vehicles to a person other than Lessee for such term and such rental
as Lessor may elect in its sole discretion, and apply the proceeds of such
lease, after first deducting all costs and expenses relating to the termination
of this Lease and the retaking of the Vehicles, to Lessee's obligations
hereunder; provided, however, that Lessee shall pay to Lessor immediately upon
demand, as liquidated damages for loss of bargain and not as a penalty, a sum
with respect to each such Vehicle which represents the excess of the present
value at the time of termination of all Monthly Rentals which would otherwise
have accrued hereunder to the end of the Maximum Term for such Vehicle over the
present value of the aggregate of the rentals to be paid for such Vehicle by
such third party for such period (such present values to be computed in each
case on the basis of a discount factor equal to the Prime Rate in effect on the
date this Lease is terminated by Lessor, from the respective dates upon which
such Monthly Rentals would have been payable hereunder had this Lease not been
terminated). In addition to the other remedies set forth herein, if any Vehicle
is not returned to Lessor, or if Lessor is prevented from taking possession
thereof, Lessee shall pay to Lessor immediately upon demand Adjusted Rental as
provided in Section 9, as if such Vehicle had been sold on the date this Lease
was terminated, and the amount of net sale proceeds therefor were zero. As used
herein, the Prime Rate shall mean the Prime Rate as published from time to time
in the Money Rates section of The Wall Street Journal as the base rate on
corporate loans. If more that one Prime Rate or a range of rates is published,
the Prime Rate will be the highest of the published rates. In the event the
Prime Rate as published in The Wall Street Journal ceases to exist or The Wall
Street Journal ceases publishing a Prime Rate, CITICAPITAL will substitute a
comparable index which is outside the control of CITICAPITAL. In the event of an
error by The Wall Street Journal, the Prime Rate will be based upon the Prime
Rate as corrected. Lessor may sell any Vehicle without giving any warranties as
to the Vehicle. 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 Vehicle.
(2) Whether or not the Vehicles are returned to, sold or leased by
Lessor, Lessor shall also recover from Lessee all unpaid Monthly Rentals,
Additional Rents and Adjusted Rents then due or owing together with all costs
and expenses, including attorneys' fees, incurred by Lessor in the enforcement
of its rights and remedies under this Lease. In addition, Lessor may retain as
liquidated damages all Monthly Rentals and Additional Rents and sale proceeds
received, including any refunds and other sums which otherwise would be payable
to Lessee, and a sum equal to the aggregate of all Monthly Rentals and other
amounts, including but not limited to any early termination fee customarily
charged by Lessor, (the due dates of which Rentals and other amounts Lessor may
accelerate at its option) which would have been due during the period ending,
for each Vehicle, on the earliest date on which Lessee could have effectively
terminated this Lease as to such Vehicle pursuant to Section 3 if Lessee had not
defaulted.
621279 Rev 12/01
1.01 [CT]
Page 4 of 6
ORIGINAL FOR CITICAPITAL
(3) In addition to the foregoing remedies, in the event of a default
hereunder, Lessor may also declare all other debts then owing by Lessee to
Lessor or any affiliate (including, without limitation, any direct or indirect
parent, subsidiary or sister entity), successor or assignee of Lessor to be
immediately due and payable.
(4) The remedies in this Lease provided in favor of Lessor shall not
be deemed exclusive or alternative, but shall be cumulative and shall be in
addition to all other remedies in its favor existing at law or in equity. Lessee
hereby waives any right to trial by jury in any action relating to this Lease,
as well as any requirements of law, now or hereafter in effect, which might
limit or modify any of the remedies herein provided, to the extent that such
waiver is permitted by law. The failure of Lessor to exercise any of the rights
granted it hereunder shall not constitute a waiver of any such right or
establish a custom or course of dealing.
15. NEITHER THIS LEASE, any rights or obligations hereunder, nor any
rights in or to the Vehicles may be assigned or subleased by Lessee without the
prior written consent of Lessor and no such assignment or sublease shall be
valid or binding on Lessor. Lessor or any assignee or successor of Lessor shall
have the right to transfer, sell or assign all or any portion of this Lease or
any interest in the Vehicles and/or obligations hereunder, without notice,
acknowledgment or consent from Lessee. LESSEE WAIVES, RELINQUISHES, DISCLAIMS
AND AGREES THAT IT WILL NOT ASSERT AGAINST ANY ASSIGNEE OR 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.
16. LESSEE AGREES that at any time and from time to time, after the
execution and delivery of this Lease, it shall, upon request of Lessor, execute
and deliver such further documents and do such further acts and things as Lessor
may reasonably request in order fully to effect the purposes of this Lease and
to protect Lessor's interest in the Vehicles, including, but not limited to,
furnishing any and all information necessary to enable Lessor or its insurer to
defend itself in any litigation arising in connection herewith. Lessee hereby
authorizes Lessor to insert serial numbers, delivery and Monthly Rental due
dates, and other data on the Schedules, Delivery Receipts and other documents
relating hereto when such numbers, date and data become known to Lessor.
17. NOTICES required or permitted to be given hereunder shall be given in
writing either personally or by registered or certified mail addressed to the
respective party at its address listed on page one hereof or, if such party has
previously given notice of a change of address, to the address specified in the
last such notice of change of address. Notices shall be deemed received when
delivered if personally delivered or, if mailed, two (2) business days after
deposit postage prepaid in the United States mails.
18. THIS LEASE will become effective only upon acceptance by Lessor. This
form is intended for general use throughout the United States. Any provision of
this Lease that is prohibited or unenforceable in any jurisdiction shall be
ineffective in such jurisdiction to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. 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, its affiliates (including, without limitation, any direct or indirect
parent, subsidiary or sister entity), successors and assigns a security interest
in the Vehicles and all proceeds thereof to secure the payment and performance
of all debts and all liabilities of Lessee to Lessor of every kind and
character, whether now existing or hereafter arising, and whether direct,
indirect, absolute, contingent, primary, secondary, or otherwise, or to any
affiliates (including, without limitation, any direct or indirect parent,
subsidiary or sister entity), successors or assignees of Lessor, now existing or
hereafter arising, whether under this Lease or any other agreement, and whether
due directly or by assignment. Lessee authorizes Lessor to file a financing
statement describing the Vehicles and all proceeds thereof. 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 Vehicles 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. No vehicle dealer nor any employee or
agent of any dealer or of any other person has authority to make any
representations to Lessee on Lessor's behalf as to the performance of the
Vehicles, or as to any provision of this Lease or as to any other matter
whatsoever. Lessee has no authority to, and shall not, make any warranty or
representation concerning the Vehicles to any person on Lessor's behalf.
19A. IF LESSEE is a corporation, limited liability company, limited
partnership or other registered organization, its state of organization is in
the state set forth immediately below its signature on the last page of this
Lease;
19B. IF LESSEE is an individual, his/her principal place of residence is
at the address set forth immediately below its signature on the last page of
this Lease;
19C. 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 immediately below its signature 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 thirty (30) days prior to such change.
20. ALL PAYMENTS made by Lessee to Lessor with reference to this Lease
shall be applied first to late charges, then to any other fees or other amounts
payable hereunder other than the indebtedness secured by a purchase money
security interest in any Vehicle, until all of such indebtedness is paid in
full, and then to any indebtedness secured by a purchase money security interest
in any Vehicle in the order in which that indebtedness was incurred. 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.
21. 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
entity 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.
621279 Rev 12/01
1.01 [CT]
Page 5 of 6
ORIGINAL FOR CITICAPITAL
ONLY AFTER WRITTEN AUTHORIZATION BY LESSEE WILL DEBIT TRANSACTIONS OCCUR.
22. 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
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 any other present or future agreement with or which is held
by Lessor. This authorization may be cancelled 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 only after written authorization by Lessee will debit
transactions occur. CT
23. 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 " ANY ASSIGNMENT OR TRANSFER OF THIS LEASE TO ANY
ASSIGNEE OR SECURED PARTY OTHER THAN CITICAPITAL COMMERCIAL LEASING
CORPORATION OR ITS AFFILIATES (" CITICAPITAL") VIOLATES THE RIGHTS OF
CITICAPITAL.
24. PAYMENT PROCESSING: Lessee hereby agrees that any payments made by
Lessee hereunder by check and received by Lessor at an address other than the
address specified on the related invoice may be replaced by Lessor with a
substitute instrument of equal amount and presented to Lessee's financial
institution for payment from the account referenced on the check from Lessee. If
Lessee sends any payment hereunder by check to Lessor at any address other than
the one specified on the related invoice, then Lessee shall be deemed to have
authorized Lessor to substitute such check with an instrument of equal amount
and present the substitute instrument to Lessee's financial institution for
payment from the account referenced on Lessee's check.
THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES. This Lease and any Schedules and other documents relating hereto may be
modified only in a writing signed by the party against whom enforcement is
sought. No vehicle dealer nor any employee or agent of any dealer or of any
other person has authority to make any representations to Lessee on Lessor's
behalf as to the performance of the Vehicles, or as to any provision of this
Lease or as to any other matter whatsoever. Lessee has no authority to, and
shall not, make any warranty or representation concerning the Vehicles to any
person on Lessor's behalf.
READY MIX, INC., LESSEE
Witness (or Attest) [ILLEGIBLE] By /S/ Clinton Tryon
----------- ------------------------------
Title: SECRETARY
(If corporation or limited liability
company, an authorized party must
sign and show her or his title. If
limited partnership, a general
partner must sign and show that
title. If sole proprietorship, then
sole proprietor must sign and show
that title. If individual, the
individual should sign and show title
as "Individually.")
T.I.N.: 880328443
State of Organization: NV
Principal Residence/Chief Executive Office/
Place of Business:
3430 E FLAMINGO ROAD
LAS VEGAS, NV 89121
CITICAPITAL COMMERCIAL LEASING CORPORATION,
LESSOR
Accepted on: 04/01/2004 By:
--------------------------------------
Title: AUTHORIZED REPRESENTATIVE
621279 Rev 12/01
1.01 [CT]
Page 6 of 6
ORIGINAL FOR CITICAPITAL
SCHEDULE "A" EVEN PAYMENTS (OPEN-END)
This Schedule "A" is annexed to and made a part of that certain Truck Lease
Agreement dated 04/01/2004 between CitiCapital Commercial Leasing Corporation,
("Lessor") and READY MIX,INC., ("Lessee").
MONTHLY MONTHLY GROSS
COLLATERAL (YEAR. MAKE, MODEL, UNIT SCHEDULE "A" RENTAL RENTAL TERMINATION RESIDUAL VEHICULAR
DESCRIPTION, SERIAL NUMBER) NUMBER(S) VALUE FACTOR PAYMENT VALUE RATE VALUE WEIGHT
- --------------------------------------------- --------- ------------ --------- -------- ----------- -------- ---------
2002 KENWORTH TRACTOR W900L 1XKWDB9X52R885812 885812 66,675.00 .02338850 1,559.43 4.85 100.00 80,000
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
LEASE INFORMATION PER UNIT
In Service Date 04/01/2004
Term (# of Months) 48
The domicile location noted below will determine the calculation of sales/use
tax and personal property tax. If domicile location changes, please notify
Lessor immediately.
VEHICLE DOMICILE ADDRESS
STREET: 2601 E. THOMAS ROAD, #235 CITY: PHOENIX STATE: AZ ZIP: 85016
COUNTY: MARICOPA TOWNSHIP: ---------------------------
SPECIFIC LEASE TERMS/CONDITIONS
[ ] Advance:
Lessee agrees to pay ------------ ADVANCE RENTAL payment(s) per unit at
time of delivery.
[X] In Arrears:
Notwithstanding anything to the contrary in Section 3 of the Lease,
Monthly Rentals for the Vehicles described on this Schedule 'A' shall
commence on (Date of First Payment: 05/01/2004 ) and shall be payable in
arrears on the 1st day of each month thereafter.
BRANCH: 4431 CUSTOMER NUMBER #:---------------------
LESSOR: CITICAPITAL COMMERCIAL LESSEE: READY MIX, INC.
LEASING CORPORATION
BY: BY: /s/ Clinton Tryon
----------------------- -------------------------------
TITLE: AUTHORIZED REPRESENTATIVE TITLE: SECRETARY
DATE: 04/01/2004 DATE: 04/01/2004
625346 REV. 6/02
1.01
SCHEDULE "A" EVEN PAYMENTS (OPEN-END)
This Schedule "A" is annexed to and made a part of that certain Truck Lease
Agreement dated 4/1/2004 between CitiCapital Commercial Leasing Corporation,
("Lessor) and READY MIX, INC., ("Lessee").
MONTHLY MONTHLY GROSS
COLLATERAL (YEAR, MAKE, MODEL. UNIT SCHEDULE "A" RENTAL RENTAL TERMINATION RESIDUAL VEHICULAR
DESCRIPTION, SERIAL NUMBER) NUMBER(S) VALUE FACTOR PAYMENT VALUE RATE VALUE WEIGHT
- ---------------------------------------------- --------- ------------ --------- -------- ----------- -------- ---------
2001 KENWORTH TRACTOR W900L 1XKWDBOX01R860084 860084 50,525.00 0.0293155 1,481.17 5.20% 100.00 80,000
1999 KENWORTH TRACTOR W900L 1XKWDB9X5XR779741 779741 36,137.50 0.0293155 1,059.39 5.20% 100.00 80,000
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
ADVANCE PAYMENT OF $5000.00 DUE AT TIME OF SIGNING 0.00 0.00
0.00 0.00
LEASE INFORMATION PER UNIT
In Service Date 04/26/2004
Term (# of months) 36
The domicile location noted below will determine the calculation of sales/use
tax and personal property tax. If domicile location changes, please notify
Lessor immediately.
VEHICLE DOMICILE ADDRESS
STREET: 3430 E FLAMINGO ROAD, SUITE 100 CITY: LAS VEGAS STATE: NV ZIP: 89121
COUNTY: CLARK TOWNSHIP: ---------------------------
[X] Advance:
Lessee agrees to pay ONE ADVANCE RENTAL payment(s) per unit at time of
delivery.
[ ] In Arrears:
Notwithstanding anything to the contrary in Section 3 of the Lease,
Monthly Rentals for the Vehicles described on this Schedule 'A' shall
commence on (Date of First Payment:-------------) and shall be payable in
arrears on the 1st day of each month thereafter.
BRANCH: 4431 CUSTOMER NUMBER #: 339899
LESSOR: CITICAPITAL COMMERCIAL LESSEE: READY MIX, INC.
LEASING CORPORATION
BY: BY: /s/ Clinton Tryon
----------------------- -------------------------------
TITLE: AUTHORIZED REPRESENTATIVE TITLE: SECRETARY
DATE: 04/26/2004 DATE: 04/26/2004