EXHIBIT 10.82
Dated as of JUN 1 1998
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LESSEE: MEADOW VALLEY LESSOR: CATERPILLAR FINANCIAL SERVICES
CONTRACTORS, INC. CORPORATION
ADDRESS: 4411 S. 40TH, SUITE D11 ADDRESS: 4976 Preston Park Blvd.
P.O. BOX 60726
PHOENIX, AZ 85040 Plano, TX 75093
Lessor, in reliance on Lessee's selection of the equipment described below
("Unit" or "Units"), agrees to acquire and lease the Units to Lessee, and
Lessee agrees to lease the Units from Lessor, subject to the terms and
conditions below and on the reverse side:
DESCRIPTION OF UNIT(S) SERIAL# MONTHLY RENT FINAL PAYMENT
- ---------------------- ------- ---------------- -------------
(1) CTO85 OLYMPIA PACKAGED GENERATOR SET 2010549 # 1-18 @ $519.46 $13,995.03*
69KW PRIME POWER, 75KW STANDBY #19-30 @ $519.46 $ 8,749,87*
POWER, 120/240/480 VOLT SINGLE #31-42 @ $519.46 $ 3,041.08*
& THREE PHASE SELECTABLE, SKID #43-48 @ $519.46 $ 0.00
MOUNTED UNIT W/SOUND ATTENUATED
ENCLOSURE. BASE MOUNTED FUEL TANK
W/150 GALLON CAPACITY.
RENT TO BE PAID: in arrears (starts one month after Delivery Date) and every
month thereafter.
Lease Term: 48 Months Utilization Date: AUGUST 31, 1998
The [_] Mandatory Final Payment (Section 13)[X] Optional Final Payment (Section
14) is applicable to this Lease (check one)
Location of Unit(s): 89 U.S. HWY. 380, WHITE SANDS MISSILE RANGE
SAN ANTONIO, NM 87832
ADDITIONAL PROVISIONS RIDERS:
FLEX OPTION AMENDMENT NO. 1
ENGINE APPLICATION SURVEY
TERMS AND CONDITIONS
1. LEASE TERM: The lease term for each Unit shall start on its Delivery Date
(the date (a) Lessor executes this Lease, (b) Lessor takes title to the Unit, or
(c) Lessee or its agent takes control of physical possession of the Unit,
whichever is latest), provided the Delivery Date is not on or before the
utilization date stated above, and shall continue for the number of months
stated above. If the Delivery Date is not on or before the utilization date
Lessee shall, at the option of Lessor, assume Lessor's obligations to purchase
and pay for the Unit. Lessee shall execute and send Lessor's delivery supplement
to Lessor promptly after delivery of a Unit.
2. RENT: Lessee shall pay to Lessor, at the address stated above or such other
location Lessor designates in writing, rent for each Unit as stated above
starting (a) on its Delivery Date if the rent is to be paid in advance, or (b)
one month (or other period as stated above) after its Delivery Date if the rent
is to be paid in arrears. An amount equal to the first rent payment for each
Unit must accompany this document when it is submitted to Lessor. If Lessor
executes this document, the amount shall be the first rent payment. If Lessor
does not execute this document, the amount shall be returned to Lessee. If
Lessor does not receive a rent payment on the date it is due, Lessee shall pay
to Lessor, on demand, a late payment charge equal to five percent (5%) of the
rent payment not paid when due or the highest charge allowed by law, whichever
is less.
3. NO ABATEMENT: Lessee shall not be entitled to abatement or reduction of
rent or setoff against rent for any reason whatsoever. Except as otherwise
provided, this Lease shall not terminate because of, nor shall the obligations
of Lessor or Lessee be affected by damage to, any defect in, destruction of, or
loss of possession or use of a Unit; the attachment of any lien, security
interest or other claim to a Unit; any interference with Lessee's use of a Unit;
Lessee's insolvency or the commencement of any bankruptcy or similar proceeding
by or against Lessee, or any other cause whatsoever.
4. DISCLAIMER OF WARRANTIES: Lessee acknowledges and agrees that (a) each Unit
is of a size, design and make selected by Lessee, (b) each Unit is suitable for
Lessee's purposes, (c) each Unit contains all safety features deemed necessary
by Lessee, (d) Lessor is not the manufacturer of any Unit, (e) the vendor of any
Unit is not an agent of Lessor, and (f) LESSOR HAS NOT MADE, AND DOES NOT HEREBY
MAKE, ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, WITH RESPECT TO THE
MERCHANTABILITY, CONDITION, QUALITY, DESCRIPTION, OR DURABILITY OF A UNIT, OR
ITS FITNESS FOR A PARTICULAR PURPOSE. Lessor assigns to Lessee, to the extent
assignable, any warranties of a Unit by its manufacturers and/or vendor,
provided that any action taken by Lessee by reason thereof shall be at the
expense of the Lessee.
5. POSSESSION, USE AND MAINTENANCE: Lessee shall not (a) use, operate,
maintain or store a Unit improperly, carelessly, unsafely or in violation of any
applicable law or regulation or for any purpose other than in the conduct of
Lessee's business; (b) abandon a Unit; (c) sublease a Unit, permit the use of a
Unit by anyone other than Lessee, change the user of unit from that specified in
the Application Survey/Usage Rider attached hereto, or change the location of a
Unit from that specified above, without the prior written consent of Lessor; or
(d) create or allow to exist any lien, claim, security interest or encumbrance
on any of its rights hereunder of a Unit. A Unit is and shall remain personal
property regardless of its use or manner of attachment to realty. Lessor and its
agent shall have the right (but not the obligation) to inspect a Unit and
maintenance records relating to it and observe its use. Lessee, at its expense,
shall maintain each Unit in good operating order, repair and condition and shall
perform maintenance at least as frequently as stated in any applicable
operator's guide, service manual, or lubrication and maintenance guide. Lessee
shall not alter any Unit or affix any accessory or equipment to it if doing so
will impair its originally intended function or use or reduce its value. Any
alteration or addition to a Unit shall be the responsibility of and at the sole
risk of Lessee. All parts, accessories and equipment affixed to a Unit shall be
subject to the security interest of Lessor.
SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS
Lessee: MEADOW VALLEY LESSOR: CATERPILLAR FINANCIAL SERVICES
CONTRACTORS, INC. CORPORATION
By: /s/ Gary W. Burnell By: /s/ Evelyn Martinez
---------------------------- ---------------------------------------
Name (PRINT) GARY W. BURNELL Name (PRINT) EVELYN MARTINEZ
--------------------- -----------------------------
Title VP/CFO Title CREDIT ANALYST
-------------------------- ---------------------------------
Date 6/2/98 Date JUN 1 1998
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6. TAXES: Lessee shall promptly pay or reimburse Lessor for all fees, charges
and taxes of any nature, including, without limitation, personal property taxes,
together with any penalties, fines or additions to tax and interest thereon
(collectively, "Taxes") levied on or assessed against Lessor in connection with
the ownership, leasing, rental, sale, possession, purchase, or use of a Unit;
excluding however, all charges or taxes on or measured by Lessor's net income,
or charges or taxes levied on or assessed against Lessor in connection with a
Unit after the Unit is returned to Lessor in accordance with the terms of this
Lease. If the reimbursement to Lessor of Taxes constitutes income for federal,
state or local tax purposes and if the Lessor is not entitled to a deduction for
the full amount of the reimbursement, the Lessee shall pay the Lessor an
additional amount such that the net amount received by Lessor after payment of
all related Taxes equals the amount which Lessor would have received if no such
Taxes were payable. Lessee shall prepare and timely file, in a manner
satisfactory to Lessor, any reports or returns which may be required with
respect to a Unit, including, without limitation, personal property tax returns.
For purposes of this section, in computing Lessor's Taxes attributable to a
reimbursement, it shall be assumed that the Lessor is in the highest marginal
tax rate applicable to corporations at the time the reimbursement is made, and
that the term "Lessor" shall include any affiliated group, within the meaning of
Section 1504 of the Internal Revenue Code of 1988, of which Lessor is a member
for any year in which a consolidated or combined income tax return is filed for
the affiliated group.
7. LOSS OR DAMAGE: Lessee shall bear the risk, of any Casualty Occurrence (the
Unit is worn out, lost, stolen, destroyed, taken by government action or, in
Lessor's opinion, irreparably damaged) or other damage from the time is it
purchased by Lessor until it is returned to Lessor. Lessee shall give Lessor
prompt notice of a Casualty Occurrence or other damage. If, in Lessor's opinion,
the damage is not a Casualty Occurrence, Lessee shall, at its expense, promptly
restore the Unit to the condition required by Section 5. If a Casualty
Occurrence, Lessee shall pay to Lessor on the first rent payment date following
the Casualty Occurrence (thirty (30) days after the Casualty Occurrence if there
is no rent payment date remaining) the lessor of (a) the sum of (i) all amounts
then due under this Lease with respect to the Unit, (ii) the present value of
all unpaid rent for the Unit, and (iii) the present value of the Purchase Price
of the Unit as stated on the front hereof; and (b) the maximum amount permitted
by law. Present values will be determined by discounting at the implicit
interest rate of this Lease. Upon making this payment, the lease term with
respect to the Unit shall terminate and Lessee shall be entitled to possession
of the Unit and to any recovery in respect to it (subject to the rights of any
insurer).
8. WAIVER AND INDEMNITY: LESSEE AGREES TO DEFEND, INDEMNIFY AND HOLD LESSOR,
ITS EMPLOYEES, DIRECTORS AND OFFICERS HARMLESS FROM AND AGAINST ANY AND ALL
CLAIMS OF LESSEE AND/OR THIRD PARTIES (INCLUDING, BUT NOT LIMITED TO, CLAIMS
RELATING TO PATIENT INFRINGEMENT, BASED UPON STRICT LIABILITY IN TORT AND FOR
CONSEQUENTIAL DAMAGES), LOSSES, LIABILITIES, DEMANDS, SUITS, JUDGMENTS AND
CAUSES OF ACTION, AND ANY COSTS OR EXPENSES IN CONNECTION THEREWITH, INCLUDING
REASONABLE ATTORNEYS' FEES AND EXPENSES, WHICH MAY RESULT FROM OR ARISE IN ANY
MANNER OUT OF THE DELIVERY (INCLUDING ANY DELAY IN, OR FAILURE OF, DELIVERY),
SELECTION, PURCHASE, ACCEPTANCE OR REJECTION, OWNERSHIP, POSSESSION, CONDITION,
USE, OPERATION, MAINTENANCE OR REPAIR OF A UNIT FROM THE TIME IT IS PURCHASED BY
LESSOR UNTIL IT IS RETURNED TO LESSOR, OR WHICH MAY BE ATTRIBUTABLE TO A DEFECT
IN THE UNIT, THE MATERIAL USED THEREIN OR THE DESIGN, MANUFACTURE OR TESTING
THEREOF, REGARDLESS OF WHEN THE DEFECT IS DISCOVERED, WHETHER OR NOT THE UNIT IS
IN THE POSSESSION OF LESSEE AND WHERE IT IS LOCATED.
9. INSURANCE: Lessee, at its expense, shall keep each Unit insured for the
benefit of Lessor against all risks for not less than the amount described in
Section 7 and shall maintain comprehensive public liability insurance (including
product and broad form contractual liability) covering the Unit for not less
than $1,000,000 combined coverage for bodily injury and property damage. All
insurance shall be in a form and with companies as Lessor shall approve, shall
specify Lessor and Lessee as name insured, shall be primary, without the right
of contribution from any other insurance carried by Lessor, and shall provide
that the insurance may not be canceled or altered so as to affect the interest
of Lessor without at Least to (10) days' prior written notice to Lessor. All
insurance covering loss or damage to a Unit shall name Lessor as loss payee.
Lessee shall not make adjustments with insurers except with Lessor's prior
written consent and hereby irrevocably appoints Lessor as Lessee's
attorney-in-fact to receive payment of and to endorse all checks, drafts and
other documents and to take any other actions necessary to pursue insurance
claims and recover payments if Lessee fails to do so. Lessee shall promptly
notify Lessor of any occurrence which may become the basis of a claim and shall
provide Lessor with all requested pertinent data. Lessee shall promptly deliver
to Lessor evidence of such insurance coverage.
10. EVENTS OF DEFAULT: Each of the following constitutes an event of default
("Event of Default"): (a) Lessee fails to make any payment when due; (b) any
representation or warranty to Lessor which is incorrect or misleading; (c)
Lessee fails to observe or perform any covenant, agreement or warranty made by
Lessee and the failure continues for ten (10) days after written notice to
Lessee; (d) any default occurs under any other agreement between Lessee and
Lessor or any affiliate of Lessor; (e) Lessee or any guarantor of this Lease
ceases to do business, becomes insolvent, makes an assignment for the benefit of
creditors or files any petition or action under any bankruptcy, reorganization,
insolvency or moratorium law, or any other law or laws for the relief of, or
relating to, debtors; (f) filing of any involuntary petition under any
bankruptcy statute against Lessee or any guarantor of this Lease, or appointment
of a receiver, trustee, custodian or similar official to take possession of the
properties of Lessee or any guarantor of this Lease, unless the petition or
appointment ceases to be in effect within thirty (30) days after filing or
appointment; and (g) breach or repudiation of a guaranty obtained by Lessor in
connection with the Lease.
11. REMEDIES: If an Event of Default occurs, Lessor may (a) proceed by court
action to enforce performance by Lessee of the covenants of this Lease or to
recover damages for their breach or (b) by notice in writing to Lessee terminate
this Lease, in which event Lessee shall remain liable as provided herein and
Lessor may do any one or more of the following: (i) declare the balance due (or
the maximum amount permitted by law if recovery of the entire balance due is
prohibited) with respect to each Unit immediately due and payable and recover
any additional damages and expenses sustained by Lessor due to breach of any
covenant, representation or warranty in this Lease other than for the payment of
rent; (ii) enforce the security interest granted herein; (iii) require Lessee to
return each Unit pursuant to Section 12; and (iv) enter the premises where any
Unit may be and take possession of it without notice, liability or legal
process. Lessee agrees to pay all charges, costs, expenses and reasonable
attorney's fees incurred by Lessor in enforcing this Lease. Lessor has all
rights given to a secured party by law. Lessor may undertake commercially
reasonable efforts to sell or release a Unit, and the proceeds of any sale or
re-lease shall be applied in the following order: (i) to reimburse Lessor for
all expenses of retaking, holding, preparing for sale or re-lease and selling or
re-leasing the Unit, including any taxes, charges, costs, expenses and
reasonable attorney's fees incurred by Lessor; (ii) to pay Lessor all amounts
which under the terms of this Lease are due or have accrued as of the date of
Lessor's receipt of the proceeds; and (iii) to pay Lessor the balance due (or
the maximum amount permitted by law if recovery of the entire balance due is
prohibited) with respect to the Unit. Any surplus shall be paid to the person
entitled to it. Lessee shall promptly pay any deficiency to Lessor. Lessee
acknowledges that sales for cash or credit to a wholesaler, retailer or user of
a Unit are all commercially reasonable. The remedies provided to Lessor shall be
cumulative and shall be in addition to all other remedies existing at law or in
equity. If Lessee fails to perform any of its obligations under this Lease,
Lessor may perform the obligations, and the expenses incurred by Lessor as a
result shall be payable by Lessee upon demand.
12. RETURN OF UNIT: If Lessor shall rightfully demand possession of a Unit,
Lessee, at its expense, shall promptly deliver possession of the Unit to Lessor,
properly protected and in the condition required by Section 5, at the option of
Lessor, (a) to the premises of the nearest Caterpillar dealer selling equipment
of the same type as the Unit, or (b) on board a carrier named by Lessor an
shipping it, freight collect, to the destination designated by Lessor. If the
Unit is not in the condition required by Section 5, Lessee shall pay to Lessor,
on demand, all costs and expenses incurred by Lessor to bring the Unit into the
required condition.
13. MANDATORY FINAL PAYMENT: If the Mandatory Final Payment box is checked, at
the end of lease term with respect to a Unit, provided this Lease has not been
terminated with respect to it, Lessee shall pay the Final Payment stated on the
front hereof. Upon receipt of the Final Payment, and all other amounts due under
this Lease, plus an amount equal to any taxes due in connection with the
transfer of the Unit or the delivery of the bill of sale, Lessor shall deliver
to Lessee, upon request, a bill of sale without warranties except that the Unit
is free of all encumbrances of any person claiming through Lessor. Lessee shall
purchase the Unit "AS IS, WHERE IS, WITH ALL FAULTS."
14. OPTIONAL FINAL PAYMENT: If the Optional Final Payment box is checked and
if no Event of Default shall have occurred and be continuing, Lessee may, by
notice delivered to Lessor not less than sixty (60) days prior to the end of the
lease term with respect to a Unit, elect to pay the Final Payment stated on the
front. Payment of the Final Payment shall be due at the end of the lease term.
Upon payment of the Final Payment and all other amounts due under this Lease,
plus an amount equal to any taxes due in connection with the transfer of the
Unit or the delivery of the bill of sale, Lessor shall deliver to Lessee, upon
request, a bill of sale without warranties except that the Unit is free of all
encumbrances of any person claiming through Lessor. Lessee shall purchase the
Unit "AS IS, WHERE IS, WITH ALL FAULTS". If Lessee does not elect to pay the
Final Payment, Lessee, upon expiration of the lease term, shall return the Unit
to Lessor as provided in Section 12 and furnish Lessor with documentation, as
Lessor may reasonably request, conveying to Lessor all of Lessee's right, title
and interest in the Unit, free and clear of all liens, claims, security
interests and encumbrances other than those of Lessor.
15. SECURITY INTEREST; LESSEE REPRESENTATIONS: Unless applicable law provides
otherwise, title to a Unit shall remain in Lessor as security for the
obligations of Lessee hereunder until Lessee has fulfilled all of its
obligations. Lessee hereby grants to Lessor a continuing security interest in
the Unit, including all attachments, accessories and optional features therefor
(whether or not installed thereon) and all substitutions, replacements,
additions, and accessions thereto, and proceeds of all of the foregoing, to
secure the payment of all sums due hereunder. Lessee will, at its expense, do
any act and execute, acknowledge, deliver, file, register and record any
documents which Lessor may reasonably request to protect Lessor's security
interest in the Unit and Lessor's rights and benefits under this Lease. Lessee
represents and warrants to Lessor that (a) Lessee has the power to make, deliver
and perform under this Lease; (b) the person executing and delivering this Lease
is authorized to do so on behalf of Lessee, and (c) this Lease constitutes a
valid obligation of Lessee, legally binding upon it and enforceable in
accordance with its terms. Lessee shall, display labels supplied by Lessor
stating that the Unit is leased from Lessor in a prominent place on the Unit
during the lease term.
16. ASSIGNMENT; COUNTERPARTS: The rights of Lessor under this Lease and title
to the Unit may be assigned by Lessor at any time. If notified by Lessor, Lessee
shall make all payments due under this Lease to the party designated in the
notice, without offset or deduction. No assignment of this Lease or any right or
obligation under it may be made by Lessee without the prior written consent of
Lessor. This Lease shall be binding upon and benefit Lessor and Lessee and their
respective successors and assigns. If this Lease is assigned by Lessor to a
partnership or trust, the term "Lessor" shall thenceforth means and include the
partnership or trust and shall also include, for purposes of Sections 4, 5, 6,
7, 8 and 9, each partner in or beneficiary of the partnership or trust. Although
multiple counterparts of this document may be signed, only the counterpart
accepted, acknowledged and certified by Caterpillar Financial Services
Corporation on the signature page thereof as the original will constitute
original chattel paper.
17. EFFECT OF WAIVER; ENTIRE AGREEMENT; MODIFICATION OF LEASE; NOTICE: A delay
or omission by Lessor to exercise any right or remedy shall not impair any right
or remedy and shall not be construed as a waiver of any breach or default. Any
waiver or consent by Lessor must be in writing. This Lease completely states the
rights of Lessor and Lessee and supersedes all prior agreements with respect to
the Unit. No variation or modification of this Lease shall be valid unless in
writing. All notices shall be in writing, addressed to the other party at the
address stated on the front or at such other address as may hereafter be
furnished in writing.
18. SEVERABILITY; SURVIVAL OF COVENANTS: If any provision of this Lease shall
be invalid under any law, it shall be deemed omitted but the remaining
provisions hereof shall be given effect. All obligations of Lessee under this
Lease shall survive the expiration or termination of this Lease to the extent
required for their full observance and performance.