Pawnee Leasing Corporation v. Ranond N. Bowers

IN THE DISTRICT COURT IN AND FOR KAY COUNTY STATE OF OKLAHOMA PAWNEE LEASING CORPORATION, Plaintiff, vs. RANOND N. BOWERS, and GARRETT BOWERS, Defendants. PETITION Plaintiff, Pawnee Leasing Corporation ("Pawnee"), for its claims against the Defendants, Ranond N. Bowers, and Garrett Bowers (collectively "Bowers"), alleges and states as follows: 1. Pawnee is a California limited liability company. 2. Bowers are individuals who are residents of Kay County, State of Oklahoma. 3. This Court has jurisdiction over this matter and venue is proper in this Court. 4. On or about May 9, 2023, Bowers Trucking, Inc. ("BTI") and Tandem Finance, Inc. entered into an Equipment Finance Agreement ("Agreement"). A true and complete copy of the Agreement is attached hereto as Exhibit 1. 5. The Agreement was assigned to Pawnee and Pawnee is the owner of all rights under the Agreement. See Assignment attached hereto as Exhibit 2. 6. Under the terms of the Agreement, Hampton was obligated to make monthly payments of $8,317.13. 7. BTI has defaulted under the terms of the Agreement by failing to make the payments when due. 8. As of March 4, 2026, the balance due under the Agreement was $333,501.83. 9. Under the terms of the Agreement, BTI is obligated to pay Pawnee’s expenses in connection with the enforcement of its remedies, including court costs and attorneys’ fees. 10. Under the terms of the Agreement, BTI is obligated to pay interest on the balance at the rate of 24% per annum. 11. The Agreement contains a guaranty pursuant to which Bowers each guaranteed the payment of all amounts due from BTI to Pawnee for the indebtedness due under the Agreement. 12. Under the terms of the Guaranty, Bowers absolutely and unconditionally guaranteed payment to Pawnee all amounts due from BTI to Pawnee. 13. Despite demand, Bowers have failed and refused to pay Pawnee the amounts due under the Agreement. WHEREFORE, Pawnee demands that this Court enter a judgment for Pawnee and against Defendants, Ranond N. Bowers and Garrett Bowers, for the principal sum of $333,501.83, interest on said amount at 24% per annum from March 3, 2026, plus its court costs, including and attorneys’ fees as allowed by law and pursuant to the terms of the Agreement and the Guaranty and such other and further relief to which it is entitled. Respectfully submitted, James W. Rusher, OBA #11501 ALBRIGHT, RUSHER & HARDCASTLE 15 West Sixth Street, Suite 2600 Tulsa, Oklahoma 74119-5434 Telephone: (918) 583-5800 Facsimile: (918) 583-8665 [email protected] Attorneys for Pawnee Leasing Corporation NOTICE: This Lease is a non-cancelable legal commitment. You will be required to pay taxes, fees and other charges in addition to Rent. Some charges are in amounts greater than our actual costs, risks or exposure. LEASE AGREEMENT Tandem Finance Inc 3801 Automation Way Suite 207 Fort Collins, CO 80525 (Lessor) Customer (Lessee) Complete Legal Name, if a corporation, use exact registered corporate name. Company Name: BOWERS TRUCKING INC. Contract#: 404348 Billing Address: 64417 U.S. 60 Ponca City, OK 74604 County: Phone: 580-762-7066 Vendor of Equipment: See Attached Schedule "A" EQUIPMENT DESCRIPTION (Include Quantity, Make, Model, Serial Numbers): See Attached Schedule "A" Equipment 64417 U.S. 60 Location: Ponca City OK 74604 SCHEDULE OF RENTAL PAYMENTS Monthly Rent: $8,317.13 Term of Lease (in months): 48 Total Number of Rental Payments: 48 Rent with Tax (Tax Rate %): $8,317.13 Advance Payment (# Advance Payments 0): $0.00 Total Initial Payment (Advance Payment + Admin Fee): $0.00 Administration Fee: $1,145.00 (Lessee authorizes Lessor to adjust rental payments by no more than 10% to reflect actual final costs, including additional sales tax, delivery, and installation charges and cost increases due to alterations requested by the Lessee.) DO NOT SIGN THIS LEASE UNLESS YOU UNDERSTAND AND AGREE TO ALL OF ITS TERMS (INCLUDING PAGE 2-3). Lessee: BOWERS TRUCKING INC. Accepted by Lessor: Tandem Finance Inc Owner Signature Garrett Bowers Title Date 05/09/23 Signature John D. McMillen COO Date 5/16/23 GUARANTY For the purpose of this Guaranty "you" means the undersigned Guarantors. You have an interest in the Lessee named above ("Lessee"), and we, the Lessor, would not enter into this Lease (the "Lease") without this Guaranty. You jointly and severally unconditionally guaranty the full and prompt payment and performance of all Lessee's obligations under the Lease even if we change or renew the Lease, or if any payments made by Lessee are rescinded or voided due to the Insolvency, bankruptcy or reorganization, as if the payment had not been made. We do not have to notify you if the Lessee is in default under the Lease. If Lessee defaults, you will immediately pay in accordance with the default provisions of the Lease all obligations due thereunder. You agree that you will not be released or discharged if we: (i) fail to perfect a security interest in the Equipment or any other property that secures the obligations of Lessee or any of you ("Collateral"); (ii) fail to protect the Collateral; or (iii) abandon or release any Collateral. You agree that we do not have to proceed first against Lessee, any Collateral or any other guarantor. You waive notice of acceptance of this Guaranty and of all other notices or demands and suretyship defenses of any kind. You will reimburse us for all expenses we incur in enforcing our rights against Lessee or any of you, including without limitation, attorneys' fees and costs. You authorize us to obtain credit bureau reports for credit and collection purposes and to report your performance to any credit bureau or similar entity. This is an irrevocable, continuing Guaranty and binds your heirs, administrators and representatives. YOU AGREE THAT THE AGREEMENTS REGARDING JURISDICTION, VENUE, SERVICE OF PROCESS AND INTENT TO TRANSACT ELECTRONICALLY CONTAINED IN THE LEASE APPLY TO THIS GUARANTY. YOU WAIVE, INsofar AS PERMITTED BY LAW, TRIAL BY JURY. DO NOT SIGN THIS GUARANTY UNLESS YOU UNDERSTAND AND AGREE TO ALL OF ITS TERMS AND THE TERMS OF THE LEASE (INCLUDING PAGE 2-3). Garantor: Garrett Bowers Signature 05/09/2023 Social Security: ####-##-4080 Phone: 580-762-7066 Home Address: 2609 Fox Crossing Ponca City, OK 74604 Garantor: Ranond Bowers Signature MAY 9 -23 Social Security: # # # # -0198 Phone: 580-762-7066 Home Address: 345 East Old Highway 60 74633, OK 74633 1. Lease: WE (the Lessor) lease to YOU (the Lessee) the Equipment described above or in any schedule hereto (together with upgrades, attachments and replacements, the “Equipment”) for the number of months (the “Term”) and the rental payments (the “Rent”) shown on page 1 and on the terms and conditions stated herein and on page 3, Schedule “A”, and any and all Addenda. You request that we advance funds to you or by payment to the vendor of the equipment (the “Vendor” or “Vendor”) without determining whether the Equipment has been delivered and accepted, and you assume all risks associated with the Equipment, its delivery, acceptability, and performance. The Term begins and this Agreement is non-cancellable, on a date we select on or after the date we advance funds to you or the Vendor. You will be deemed to have agreed that the Equipment is satisfactory and is in good working condition and this Lease will become your absolute unconditional obligation that you cannot cancel or terminate. Upon the Acceptance Date, you will be deemed to have agreed that the Equipment is satisfactory and is in good working condition and this Lease will become your absolute unconditional obligation that you cannot cancel or terminate. You may prepay this agreement only as follows: if you are not in default, you may prepay the entire outstanding principal balance and all other amounts due under this Agreement on any Payment due date; provided that you also pay an administrative fee of $250, plus a prepayment premium equal to 1% of the outstanding principal balance for each year or part of the year of the Term remaining at the time of payment. A partial 12 month period shall be deemed a full 12 month period for calculating the prepayment amount. One of our officers or representatives will be asked to confirm acceptance by telephone or other means. This confirmation will be binding on you and we will rely on it in paying the Vendor. Rent is due monthly on the first (1st) or fifteenth (15th), as we select, beginning on the first Rent payment date on or after the Acceptance Date, per the authorization for automatic withdrawal you sign and as set forth above. All payments will be made by Automated Clearing House (“ACH”) transactions, unless we otherwise agree, in which case we may charge you a 3% fee. You will pay additional Rent (interim rent) in an amount equal to 1/30th of the monthly Rent per day, from the date we buy the Equipment to the first monthly Rent payment date. We may choose to collect the Administration Fee with your first payment. If we do, it will be included in the Total Initial Payment. If this Lease is not finalized other than due to our wrongful action, you agree that we may, at our option, retain the Advance Rent and Administration Fee as liquidated damages. Your Advance Rent will not earn interest. If Advance Rent is indicated above, the Advance Rent will be applied first to the first Rent payment due hereunder and any additional Advance Rent shall be applied to the last Rent payments due under this Agreement, in reverse order. Any calculation involving Rent payments will be increased by taxes on the payment(s). 2. Disclaimers of Warranties; Limitation of Remedies: WE MAKE NO (AND DISCLAIM ALL) WARRANTIES EITHER EXPRESS OR IMPLIED AS TO THE CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY, ITS FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE, ITS DESIGN, ITS CAPACITY, ITS QUALITY, OR WITH RESPECT TO ANY CHARACTERISTICS OF THE EQUIPMENT. Do not accept the Equipment unless you have inspected the Equipment and it is in good condition and satisfactory to you AS IS WHERE IS and with all faults. You agree that your obligations under this Lease are ABSOLUTE AND UNCONDITIONAL and you agree to pay and perform your obligations hereunder without offset, counterclaim or defense, all of which are hereby waived to the fullest extent permitted by law. Neither the vendor of the Equipment nor any salesman is our agent or authorized to waive or alter any terms or conditions of this Lease. No representations as to the Equipment or any other matter by the vendor or salesman effect your obligations to us. Unless you are in default we assign to you any warranties made by the vendor or the manufacturer of the Equipment. 3. Use/Assignment: You will use the Equipment only in the conduct of your business in a careful and proper manner and only for commercial or business purposes and not for personal, family, household, or consumer purposes; maintain the Equipment in the same condition as when delivered, subject only to reasonable wear and tear, and replace any damaged parts; not make any alterations to the Equipment without our prior written consent. All additions, replacements, parts, or accessories immediately become our property. The Equipment cannot be moved without our prior written consent except Mobile Equipment can move within the continental U.S. if it returns regularly to the specified location. We may inspect the Equipment during normal business hours. You may not assign this Lease or lend or sublease the Equipment. We may assign our rights without notice and our assignee will not be subject to any defense or claim you have against us. 4. Late Payment/Other Charges: If you fail to pay any Rent or other amount on its due date, you will pay a late payment fee equal to 15% of the delinquent Rent or other amount. You will also pay interest on any overdue amount calculated from the due date at the rate of 24% percent per annum or the maximum interest rate permitted by applicable law, whichever is lower. You will pay a $30 fee if a check or ACH payment is returned unpaid. You must notify us 15 business days prior to changing your ACH bank or pay a $110 fee. There are fees of $30 for single or $55 for a permanent change if you request a change in Rent payment dates. If we engage an attorney or collection agency to collect any amount you will pay collection fees. On expiration or earlier termination of this Lease you will pay a termination fee of $95.00. 5. Loss, Damage, and Indemnification: You have all risk of loss of the Equipment upon shipment and for the Term, including any extension. If any Equipment is lost, stolen, destroyed, damaged beyond repair, or otherwise rendered permanently unfit for use, you will promptly pay the remaining Rent, discounted to present value at 4% plus; (c) the “Residual Value” (which means the end of lease purchase option, if one was specified, otherwise 20% of what the Lessor paid for the Equipment, or replacement value, whichever is higher) together with any other amounts then due hereunder. Insurance proceeds will be applied to the remaining Rents and all other outstanding amounts then owed are immediately due and payable. You agree to defend, indemnify and hold us harmless from all liability, claims, damages or other losses, including costs and reasonable attorneys’ fees, arising out of or in any manner connected with this Lease or the Equipment. 6. Taxes and Fees: You will promptly reimburse us for and hold us harmless against all state, federal or other fees, assessments, charges and taxes (including penalties and interest but excluding taxes on our taxable income), which now or hereafter may be imposed on or with respect to this Lease, the Equipment or amounts payable hereunder. You authorize us to file personal property tax and other tax returns on your behalf. You will pay a tax-filing fee of $55.00 for each tax return filed with regard to the Equipment. Upon termination or expiration, or a default under this Lease, you will pay us 2% of the sum of all Rental payments due and to become due or replacement value, whichever is higher for any assessed but unpaid taxes or other post closing costs we may incur. 7. Insurance: You will maintain current physical damage (property) insurance for the sum of all Rental payments due and to become due or replacement value, whichever is higher, naming us as a “Loss Payee” on a “Lender’s Loss Payable” endorsement; and acceptable public liability insurance naming us as an “Additional Insured”. Specific minimum liability amount may be required for specific types of equipment. Each policy must be with an insurer and in a form satisfactory to us. You must provide us with written evidence of effective Insurance on an ACORD 23 or equivalent document within 30 days of our request. If you do not provide evidence of required Insurance to us when due, we may, but have no obligation to, obtain Insurance from an insurer of our choosing in such forms and amounts as we deem reasonable to protect our interests (“Lease Insurance”). Lease Insurance covers the equipment, us and our interests only; Lease Insurance does not name you as an insured or loss payee. You agree to pay us periodic charges for Lease Insurance ("Insurance Charges"), any portion of which may generate a profit to us Initials Garrett Bowers Ronald Bowers and/or our agents, and which include: premiums that may be higher than the premiums for required insurance if you maintained required insurance separately; administration fees and experience based premium refund credits that may not be shared with Lessee; and a finance charge on any premium advances made by or on our behalf, that will not exceed the maximum lawful interest rate under applicable law. After our receipt of evidence of required insurance, your Insurance Charge payment obligation will cease. You agree to arbitrate any dispute with us or with our agents regarding Equipment Insurance or Insurance Charges under the rules of the American Arbitration Association in Larimer County, Colorado; that arbitration shall be the exclusive remedy for such disputes; and that class arbitration is not permitted. This arbitration requirement does not apply to any other provision of this Agreement. 8. Title/UCC/Power of Attorney: We own and have title to the Equipment. This is a "true lease" and not intended as a security agreement. In case it is determined to be a security agreement you grant to us a security interest in the Equipment and all additions, attachments, accessories and accessions thereto. You will keep the Equipment free and clear from liens and security interests of all kinds. You appoint us attorney-in-fact to file UCC financing statements; to take any other actions we deem necessary or desirable to protect our interest; and to correct information entries in this Lease. 9. Return of Equipment: On termination or expiration of the Term of this Lease, or upon demand following an event of default, you will, at your expense, return the Equipment to us at an address we specify in the same condition as originally received by you, except for reasonable wear and tear. Unless you (a) notify us in writing sixty (60) days prior to the scheduled expiration of the Term that you will purchase the Equipment (which such notice shall be irrevocable) and do so or (b) you promptly return the Equipment upon the expiration of the Term, the Term will continue and you will pay rent at 50% of the monthly Rent until you return the Equipment or exercise the purchase option. We do not waive any other rights under law with respect to your failure to notify us or to return the Equipment. 10. Default: It will be an event of default if: (a) you fail to pay Rent or any sum on its due date; (b) you fail to perform any other agreement in this Lease or any other agreement with us; (c) you or any guarantor dies, becomes insolvent, merges, consolidates, or suffers a deterioration of financial health; or (d) you or any guarantor file or have filed against you or it a petition for reorganization, liquidation, or similar relief under the federal bankruptcy laws, or a trustee or receiver is appointed over your or its assets. Upon an event of default you owe us: (a) the amount of all accrued unpaid Rent and other amounts payable under this Lease; plus (b) the amount of all unpaid Rent for the remaining Term of this Lease discounted to present value at 4% plus; (c) the Residual Value. In addition, we may terminate this Lease without releasing you and you will deliver the Equipment to us as required by this Lease or we may disable, repossess and sell or lease the Equipment. You will also pay interest on any unpaid damages at the lower of 24% per year or the maximum rate permitted by applicable law. We may proceed by court action to enforce this Lease. You shall pay all costs and expenses, including legal fees, collection fees or commissions, travel, or any other cost we incur enforcing our remedies. No remedy given in this paragraph is intended to be exclusive, and each shall be cumulative. These remedies are in addition to any other permitted at law or in equity. 11. Miscellaneous: This is a finance lease under Article 2A of the Uniform Commercial Code (the "UCC") as adopted by the State of Colorado. Any interest or fee collected under this Lease will not exceed the highest amount permitted by applicable law and any overcharge will be refunded. We may report your performance to any national credit bureau and access business and consumer credit bureau reports for credit and collection purposes. Captions are intended for convenience or reference only and shall not alter the text. This Lease contains the entire agreement between the parties and may not be amended except in writing by one of our executive officers. Your agreements shall survive expiration or termination of this Lease. You agree to perform additional acts we request to protect our interests. Any notice to us must be in writing and must be delivered by U.S. Mail, Return Receipt Requested or another means generating a written receipt. You authorize us to communicate with you through electronic means, including emails and/or text messages to your cellular telephone number or other wireless device, which you recognize may result in your incurring access or other fees. We are not obligated to communicate with you in this manner and you may not give any notice to us electronically. Time is of the essence of this Lease. This Lease shall be binding upon and shall inure to the benefit of each party's successors and assigns (subject to paragraph 3). It is the intention of the parties that the Equipment shall remain personal property and not be a fixture even if affixed to real property. This Lease shall be governed by the laws of Colorado. You agree that legal actions may only be brought in the state or federal courts in Larimer County, Colorado, except that we may file any action where the equipment is or has been located at any time. You waive objection to venue and agree to accept service of process at your (the Lessee's) address above. You hereby waive, insofar as permitted by law, trial by jury. This Lease and all documentation executed in connection with this Lease may be executed, communicated, and retained electronically and a facsimile or other electronic version shall be admissible and binding. For purposes of perfecting a security interest in chattel paper by possession, only the counterpart of this Lease that bears our (lessor's) manually-applied "wet ink" signature constitutes chattel paper. The sole electronic original of this Lease shall be the authoritative copy under U.C.C. 9-105. The electronic counterpart of this Lease stored under our control shall be the authoritative copy under U.C.C. 8-106. To the extent this Lease is electronic chattel paper, no security interest may be created or perfected and no assignment effective except through control of such authoritative copy. You will have access to the authoritative copy for purposes of making a duplicate. Any Equipment that is subject to title registration laws may be titled and registered as directed by us. Anything herein to the contrary notwithstanding, certificates of title for the Equipment may be held by a trust designated by us and such circumstance shall not affect your obligations or rights hereunder, except that (1) all of your obligations to indemnify and provide insurance for the benefit of us shall apply equally to such trust and the party acting as trustee or servicer, and (2) as used herein, the terms "we", "us", "our", "Lessor" and similar references shall mean such trust, acting through its trustee, or servicer. Any officer/owner/partner executing this document hereby affirms that all your shareholders/owners/partners have been identified to us in writing. If you request in writing we will send you a copy of this Lease in larger type. Lease Schedule “A” <table> <tr> <th>Quantity</th> <th>Equipment Description</th> <th>Serial #</th> <th>Supplier Name and Contact</th> </tr> <tr> <td>1</td> <td>2024 MACK AN64T70</td> <td>1M1AN4GY8RM042866</td> <td>Bruckner's Truck Sales Inc.<br>DBA Bruckner's Truck Sales Inc.<br>10120 West Reno Ave<br>Oklahoma City, OK 73127<br>833-619-8675</td> </tr> <tr> <td>1</td> <td>2024 MACK AN64T70</td> <td>1M1AN4GY6RM042865</td> <td></td> </tr> </table> PURCHASE OPTION At the end of the lease term, you may purchase the Equipment if you have (1) satisfactorily complied with all terms and conditions of the Lease (2) not been in default at any time during the Lease and (3) notified us in writing at least 60 days prior to the end of the Term that you want to purchase the Equipment. You are not required to purchase the Equipment but if you purchase any of it, you must purchase all of it. The Purchase Price of the Equipment will be Fair Market Value but not more than 20 percent of the Equipment Cost, plus any applicable sales tax (and any other tax applicable to such sale). As used herein, the term "Fair Market Value" means the price that a willing buyer (who is neither a lessee in possession nor a used equipment dealer) would pay for such equipment in an arm's-length transaction to a willing seller under no compulsion to sell assuming the equipment is in the condition in which it is required to be maintained and returned under this Lease. You and we believe that the Purchase Price represents Fair Market Value that the equipment will have at the end of the lease. Once we receive the full Purchase Price we will give you a bill of sale providing that the Equipment is being sold to you AS IS, WHERE IS, WITH ALL FAULTS AND DEFECTS, BOTH LATENT AND PATENT, WITH NO REPRESENTATION OR WARRANTIES WHATSOEVER, EITHER EXPRESSED OR IMPLIED OF ANY KIND, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE except that we will warranty the warranty that the Equipment has no liens arising by through or under us. This purchase option supersedes any contrary terms of the Lease. CERTIFICATION OF LESSEE OWNERSHIP AND AUTHORIZATION IMPORTANT: DO NOT SIGN BELOW UNTIL THIS SECTION IS FILLED OUT. YOU (THE SIGNER, PERSONALLY AS WELL AS THE LESSEE) ARE RESPONSIBLE FOR THE CORRECTNESS OF THIS SECTION. The person signing this agreement individually and in his/her capacity as an officer/owner of the Lessee and/or the Guarantor represents and warrants that (1) this Lease is duly executed and the equipment financed under this Lease will be used in the ordinary course of the business of the Lessee; (2) he or she has the legal right, power and authority to sign this Lease with all necessary authority from the managing member(s), directors, senior officers or other management of the Lessee and/or Guarantor and their shareholders, members, partners or other owners; (3) the following is a complete list of the owners of the Lessee and (4) the transaction is to the direct financial benefit of any Guarantor and good consideration for this guaranty: <table> <tr> <th>Name</th> <th>Ownership %</th> <th>Name</th> <th>Ownership %</th> </tr> <tr> <td>Garrett Bowers</td> <td>51</td> <td>Ranond Bowers</td> <td>49</td> </tr> </table> AUTHORIZATION DO NOT SIGN THIS SCHEDULE “A” UNLESS YOU UNDERSTAND AND AGREE TO ALL OF ITS TERMS AND CONDITIONS. LESSEE: BOWERS TRUCKING INC. Authorized Signer on behalf of Lessee and Guarantor Garrett Bowers Print Name Owner Title Date LESSOR: Tandem Finance Inc Authorized Signer Print Name Owner Title Date