EXHIBIT 10.263
SCHEDULE A
[WELLS FARGO LOGO]
WELLS FARGO EQUIPMENT FINANCE, INC.
733 Marquette Avenue, Suite 700
Minneapolis, MN 55402
Supplement No. 102541-100 dated as of MARCH 19, 2004
To Master Lease No. 102541 dated as of MARCH 19, 2004
Lessee: MEADOW VALLEY CONTRACTORS, INC.
Equipment originally located at: 4411 South 40th Street
Phoenix, AZ 85040
EQUIPMENT DESCRIPTION:
- Two (2) New 2004 Ingersoll-Rand model DD110HF Asphalt Rollers,
Serial Number(s): 175785, 175813
- Two (2) New 2004 Ingersoll-Rand model DD130HF Asphalt Rollers,
Serial Number(s): 175814, 175922
- One (1) New 2004 Ingersoll-Rand model PF-5510 Blaw-Knox Paving
Machine, Serial Number: PF5510-176208 including all attachments,
accessories and options.
Dated: March 19, 2004
Lessee: MEADOW VALLEY CONTRACTORS, INC.
By: /s/ [ILLEGIBLE]
----------------
Title: [ILLEGIBLE]
[WELLS FARGO LOGO] SUPPLEMENT TO MASTER LEASE
WELLS FARGO EQUIPMENT FINANCE, INC. OPTION TO PURCHASE
733 Marquette Avenue, Suite 700
MAC N9306-070
Minneapolis, MN 55402
Supplement Number 102541-100 dated as of March 19, 2004 to
Master Lease Number 102541 dated as of March 19, 2004
Name and Address of Lessee:
MEADOW VALLEY CONTRACTORS, INC.
4411 SOUTH 40TH STREET
PHOENIX, AZ 85040
This is a Supplement to the Master Lease identified above between Lessor and
Lessee (the "Master Lease"). Upon the execution and delivery by Lessor and
Lessee of this Supplement, Lessor hereby agrees to lease to Lessee, and Lessee
hereby agrees to lease from Lessor, the equipment described below upon the terms
and conditions of this Supplement and the Master Lease. All terms and conditions
of the Master Lease shall remain in full force and effect except to the extent
modified by this Supplement. This Supplement and the Master Lease as it relates
to this Supplement are hereinafter referred to as the "Lease".
EQUIPMENT DESCRIPTION:
THE EQUIPMENT DESCRIBED ON SCHEDULE A ATTACHED HERETO AND MADE A PART HEREOF.
EQUIPMENT LOCATION: 4411 SOUTH 40TH STREET, PHOENIX, AZ 85040
SUMMARY OF PAYMENT TERMS
Initial Term in Months: 36 Total Cost: $827,000.00
Payment Frequency: MONTHLY Total Basic Rent: $595,548.00
Basic Rental Payment: $16,543.00 plus applicable sales and use tax Interim Rent Daily Rate: NIA
Number of Installments: 36 Interim Rent Cutoff Date: NIA
Advance Payments: FIRST due on signing this Lease Security Deposit: N/A
END OF TERM OPTIONS:
1. Upon expiration of the initial term of the Lease and, except as otherwise
specifically set forth herein, any renewal term, and, provided that the
Lease has not been terminated early and Lessee is in compliance with the
Lease in all respects, Lessee may upon at least 90 but not more that 120
days prior written notice to Lessor exercise one of the following options:
(i) purchase all but not less than all of the Equipment for a purchase
price equal to the then Fair Market Value of the Equipment. "Fair
Market Value" of the Equipment for purposes of this paragraph shall
be an amount determined according to the following procedure. Upon
receipt of Lessee's notice of election to purchase the Equipment,
Lessee and Lessor will attempt to agree on an amount during the next
30 days, and the amount so agreed upon shall be the Fair Market
Value. In the event Lessor and Lessee cannot agree on an amount
during such 30-day period, then each party shall choose an
independent appraiser, and the two appraisers shall each determine
the Fair Market Value of the Equipment on the basis of an
arm's-length sale between an informed and willing buyer (other than
a buyer currently in possession) and an informed and willing seller
under no compulsion to sell. The average of the amounts determined
by the two appraisers shall be the Fair Market Value. Each party
shall pay the expenses of the appraiser it chooses; or
(ii) renew the Lease with respect to all but not less than all of the
Equipment at the expiration of the initial term of the Lease for a
rental of $8,271.00 per month payable monthly in advance for a
period of THIRTY (30) months. All other terms and conditions of the
Lease shall remain in full force and effect throughout the renewal
period. Upon expiration of the renewal term Lessee shall either
purchase the Equipment pursuant to paragraph 1(i) above, renew the
Lease for the then Fair Market Rental Value of the Equipment for a
term to be agreed upon by Lessee and Lessor, or return the Equipment
in accordance with paragraph 14 of the Lease. "Fair Market Rental
Value" of the Equipment for purposes of the preceding sentence shall
be an amount determined according to the following procedure. Upon
receipt of Lessee's notice of election to renew the Lease, Lessee
and Lessor will attempt to agree on an amount during the next 30
days, and the amount so agreed upon shall be the Fair Market Rental
Value. In the event Lessor and Lessee cannot agree on an amount
during such 30-day period, then each party shall choose an
independent appraiser, and the two appraisers shall each determine
the Fair Market Rental Value of the Equipment on the basis of an
arm's-length transaction between an informed and willing lessor and
an informed and willing lessee under no compulsion to
THIS AGREEMENT INCLUDES THE TERMS ON THE ATTACHED PAGE(S).
Lessor: Wells Fargo Equipment Meadow-Valley Contractors,
Finance, Inc. Inc., Lessee
_____________________________ By /s/ [ILLEGIBLE]
By -----------------------------
_____________________________ Title [ILLEGIBLE]
Title
_____________________________
Rent Commencement Date
lease. The average of the amounts determined by the two appraisers
shall be the Fair Market Rental Value. Each party shall pay the
expenses of the appraiser it chooses; or
(iii) return the Equipment to Lessor in accordance with paragraph 14 of
the Lease.
2. If on account of casualty or otherwise less than all of the Equipment is
subject to the Lease at the expiration of the initial term of the Lease or
any renewal term pursuant to paragraph 1(ii) hereof, then the purchase
price under paragraph 1(i) or the renewal rent under paragraph 1(ii) shall
be computed with reference only to the items of Equipment then subject to
the Lease.
3. If Lessee should give timely notice of election to purchase the Equipment
and fail to make timely payment of the purchase price, then Lessor may in
its sole discretion, by written notice to Lessee, (a) treat the Equipment
as purchased and enforce payment of the purchase price, or (b) declare a
failure to meet the conditions of purchase whereupon the interest of
Lessee in the Lease and the Equipment shall terminate automatically.
4. Following Lessor's receipt of the purchase price for the Equipment and
upon request by Lessee, Lessor will deliver a bill of sale transferring
the Equipment to Lessee. Lessor hereby warrants that at the time of
transfer the Equipment will be free of all security interests and other
liens created by or arising through Lessor. LESSOR MAKES NO OTHER WARRANTY
WITH RESPECT TO THE EQUIPMENT, EXPRESS OR IMPLIED, AND SPECIFICALLY
DISCLAIMS ANY WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR
PURPOSE AND ANY LIABILITY FOR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE
OF OR THE INABILITY TO USE THE EQUIPMENT.
5. Lessee agrees to pay all sales and use taxes arising on account of any
sale of the Equipment upon exercise of the purchase option granted
hereunder.
MODIFICATIONS TO MASTER LEASE: To be consistent with this Supplement the
Master Lease is amended as follows:
1. Paragraphs 12 and 18 (relating to casualty and default) are amended
by changing "10%" where it appears therein to "38.76%".
2. The following is added as Paragraph 26:
26. TAX INDEMNITY. Lessor's loss of, or loss of the rights to claim,
or recapture of, all or any part of the federal or state income tax
benefits Lessor anticipated as a result of entering into the lease
and owning the Equipment is referred to herein as a "Loss". If for
any reason the lease is not a true lease for federal or state income
tax purposes, or if for any reason (even though the lease may be a
true lease) Lessor is not entitled to depreciate the Equipment for
federal or state income tax purposes in the manner that Lessor
anticipated when entering into the lease, and as a result Lessor
suffers a Loss, then Lessee agrees to pay Lessor, as additional
basic rent, a lump-sum amount which, after the payment of all
federal, state and local income taxes on the receipt of such amount,
and using the same assumptions as to tax benefits and other matters
Lessor used in originally evaluating and pricing the lease, will in
the reasonable opinion of Lessor maintain Lessor's net after-tax
rate of return with respect to the lease at the same level it would
have been if such Loss had not occurred. The Lessor makes no
representation with respect to the income tax consequences of the
lease or the Equipment. Lessor will notify Lessee of any claim that
may give rise to indemnity hereunder. Lessor shall make a reasonable
effort to contest any such claim but shall have no obligation to
contest such claim beyond the administrative level of the Internal
Revenue Service or other taxing authority. In any event, Lessor
shall control all aspects of any settlement and contest. Lessee
agrees to pay the legal fees and other out-of-pocket expenses
incurred by Lessor in defending any such claim even if Lessor's
defense is successful.
Notwithstanding the foregoing, Lessee shall have no obligations to
indemnify Lessor for any Loss caused solely by (a) a casualty to the
Equipment if Lessee pays the amount Lessee is required to pay as a
result of such casualty, (b) Lessor's sale of the Equipment other
than on account of an Event of Default hereunder, (c) failure of
Lessor to have sufficient income to utilize its anticipated tax
benefits or to timely claim such tax benefits, and (d) a change in
tax law (including tax rates) effective after the lease begins.
For purposes of this paragraph 26, the term "Lessor" shall include
any member of an affiliated group of which Lessor is (or may become)
a member if consolidated tax returns are filed for such affiliated
group for federal income tax purposes. Lessee's indemnity
obligations under this paragraph 26 shall survive termination of the
lease.
Page 2 of 2: SUPFMVSR Initials /s/ [ILLEGIBLE]
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[WELLS FARGO LOGO]
WELLS FARGO EQUIPMENT FINANCE, INC. MASTER LEASE
733 Marquette Avenue, Suite 700
MAC N9306-070
Minneapolis, MN 55402
Master Lease Number 102541 dated as of March 19, 2004
Name and Address of Lessee:
MEADOW VALLEY CONTRACTORS, INC.
4411 SOUTH 40TH STREET
PHOENIX, AZ 85040
MASTER LEASE PROVISIONS
1. LEASE. Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees
to lease from Lessor, the personal property described in a Supplement or
Supplements to this Master Lease from time to time signed by Lessor and Lessee
upon the terms and conditions set forth in this Master Lease and in the related
Supplement (such property together with all replacements, substitutions, parts,
improvements, repairs, and accessories, and all additions incorporated therein
or affixed thereto being referred to herein as the "Equipment"). Each Supplement
shall constitute a separate lease incorporating the terms of this Master Lease.
References in this Master Lease to "this Lease", "hereunder" and "herein" shall
be construed to mean a Supplement which incorporates this Master Lease. Lessee's
execution of a Supplement shall obligate Lessee to lease the Equipment described
therein from Lessor. No Supplement shall be binding on Lessor unless and until
executed by Lessor. Anything to the contrary notwithstanding, Lessor shall have
no obligation to accept, execute or enter into any Supplement or to acquire or
lease to Lessee any equipment. Title to all Equipment shall at all times remain
in Lessor.
2. TERM. The term of this Lease shall begin on the rent commencement date
shown in the applicable Supplement and shall continue for the number of
consecutive months from the rent commencement date shown in such Supplement (the
"initial term") unless earlier terminated by Lessor as provided herein. The rent
commencement date is the 15th day of the month in which all of the items of
Equipment described in the related Supplement have been delivered and accepted
by Lessee if such delivery and acceptance is completed on or before the 15th of
such month, and the rent commencement date is the last day of such month if such
delivery and acceptance is completed during the balance of such month. In the
event Lessee executes the related Supplement prior to delivery and acceptance of
all items of Equipment described therein, Lessee agrees that the rent
commencement date may be left blank when Lessee executes the related Supplement
and hereby authorizes Lessor to insert the rent commencement date based upon the
date appearing on the delivery and acceptance certificate signed by Lessee.
At the expiration of the initial term, unless Lessee shall have renewed the
Lease or purchased the Equipment from Lessor, if Lessee does not return to
Lessor all of the Equipment that is the subject of a Supplement in accordance
with paragraph 14 below, Lessee shall pay to Lessor an amount equal to the
monthly basic rental payment that was in effect during the last month of the
initial term for each month (or part of any month), and shall comply with all
other provisions of this Lease, from the first day after the expiration of the
initial term until all such Equipment has been returned to Lessor in accordance
with paragraph 14. In addition, Lessee shall pay any applicable sales and use
tax.
3. RENT. Lessee shall pay as basic rent for the initial term of this Lease
the amount shown in the related Supplement as Total Basic Rent. The Total Basic
Rent shall be payable in installments each in the amount of the basic rental
payment set forth in the related Supplement plus sales and use tax thereon.
Lessee shall pay advance installments and any security deposit, each as shown in
the related Supplement, on the date it is executed by Lessee. Subsequent
installments shall be payable on the first day of each rental payment period
shown in the related Supplement beginning after the first rental payment period;
provided, however, that Lessor and Lessee may agree to any other payment
schedule, including irregular payments or balloon payments, in which event they
shall be set forth in the Supplement. If the actual cost of the Equipment is
more or less than the Total Cost as shown in the Supplement, the amount of each
installment of rent will be adjusted up or down to provide the same yield to
Lessor as would have been obtained if the actual cost had been the same as the
Total Cost. Adjustments of 10% or less may be made by written notice from Lessor
to Lessee. Adjustments of more than 10% shall be made by execution of an
amendment to the Supplement reflecting the change in Total Cost and basic rental
payment.
In addition to basic rent, which is payable beginning on the rent commencement
date, Lessee agrees to pay interim rent for the period beginning on the date the
Equipment is delivered and accepted by Lessee to the rent commencement date at a
daily rate equal to the percentage of Lessor's cost of the Equipment set forth
in such Supplement. Interim rent shall be payable on the rent commencement date.
Lessee agrees that if all of the items of Equipment covered by such Supplement
have not been delivered and accepted thereunder before the date specified as the
Cutoff Date in such Supplement, Lessee shall purchase from Lessor the items of
Equipment then subject to this Lease within five days after Lessor's request to
do so for a price equal to Lessor's cost of such items plus all accrued but
unpaid interim rent thereon. Lessee shall also pay any applicable sales and use
tax on such sale.
4. SECURITY DEPOSIT. Lessor may apply any security deposit toward any
obligation of Lessee under any Supplement and shall return any unapplied balance
to Lessee without interest upon full satisfaction of all of Lessee's
obligations.
5. NO WARRANTIES. Lessee agrees that it has selected each item of Equipment
based upon its own judgment and disclaims any reliance upon any statements or
representations made by Lessor. LESSEE ACKNOWLEDGES THAT: LESSOR IS NOT THE
MANUFACTURER OF THE EQUIPMENT NOR THE MANUFACTURER'S AGENT NOR A DEALER THEREIN;
THE EQUIPMENT IS OF A SIZE, DESIGN, CAPACITY, DESCRIPTION AND MANUFACTURE
SELECTED BY THE LESSEE; LESSEE IS SATISFIED THAT THE EQUIPMENT IS SUITABLE AND
FIT FOR ITS PURPOSES; AND LESSOR HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY
WITH RESPECT TO THE EQUIPMENT, EXPRESS OR IMPLIED, AND LESSOR SPECIFICALLY
DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR
PURPOSE, THE QUALITY, CONDITION OR CAPACITY OF THE EQUIPMENT OR THE MATERIALS IN
THE EQUIPMENT OR WORKMANSHIP OF THE EQUIPMENT, LESSOR'S TITLE TO THE EQUIPMENT,
NOR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER. LESSOR SHALL NOT BE LIABLE
TO LESSEE FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED,
DIRECTLY OR INDIRECTLY, BY ANY EQUIPMENT OR THE USE OR MAINTENANCE THEREOF OR
THE FAILURE OR OPERATION THEREOF, OR THE REPAIR, SERVICE OR ADJUSTMENT THEREOF,
OR BY ANY DELAY OR FAILURE TO PROVIDE ANY SUCH MAINTENANCE, REPAIRS, SERVICE OR
ADJUSTMENT, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF OR FOR ANY
LOSS OF BUSINESS HOWSOEVER CAUSED. LESSOR SHALL NOT BE LIABLE FOR DAMAGES OF
THIS AGREEMENT INCLUDES THE TERMS ON THE ATTACHED PAGE(S).
Lessor: Wells Fargo Equipment Meadow Valley-Contractors,
Finance, Inc. lnc.,Lessee
__________________________ By /s/ [ILLEGIBLE]
By ---------------------
__________________________ Title [ILLEGIBLE]
Title
ANY KIND INCLUDING ANY LIABILITY FOR CONSEQUENTIAL DAMAGES ARISING OUT OF THE
USE OF OR THE INABILITY TO USE THE EQUIPMENT. No defect or unfitness of the
Equipment, nor any failure on the part of the manufacturer or the shipper of the
Equipment to deliver the Equipment or any part thereof to Lessee, shall relieve
Lessee of the obligation to pay rent or any other obligation hereunder. Lessor
shall have no obligation in respect of the Equipment and shall have no
obligation to install, erect, test, adjust or service the Equipment. Lessee
shall look only to persons other than Lessor such as the manufacturer, vendor or
carrier thereof should any item of Equipment for any reason be defective.
6. COVENANTS. (a) Affirmative Covenants. Lessee shall: (i) pay all shipping
and delivery charges and other expenses incurred in connection with the
Equipment and pay all lawful claims, whether for labor, materials/supplies, rent
or services, which might or could if unpaid become a lien on the Equipment; (ii)
comply with all laws and regulations and rules, all manufacturer's instructions
and warranty requirements, and with the conditions and requirements of all
policies of insurance relating to the Equipment and its use; (iii) mark and
identify the Equipment with all information and in such manner as Lessor or its
assigns may request from time to time and replace promptly any such markings or
identification which are removed, defaced or destroyed; (iv) at any and all
times during business hours, grant Lessor free access to enter upon the premises
wherein the Equipment shall be located or used and permit Lessor to inspect the
Equipment; (v) maintain a system of accounts established and administered in
accordance with generally accepted accounting principles and practices
consistently applied; and (vi) within forty-five (45) days after the end of each
fiscal quarter, deliver to Lessor a balance sheet as at the end of such quarter
and statement of operations for such quarter, and within one hundred and twenty
(120) days after the end of each fiscal year, deliver to Lessor a balance sheet
as at the end of such year and statement of operations for such year, in each
case prepared in accordance with generally accepted accounting principles and
practices consistently applied and certified by Lessee's chief financial officer
or principal accounting officer as fairly presenting the financial position and
results of operations of Lessee, and, in the case of year end financial
statements, certified, by an independent accounting firm selected by the
Company's audit committee. (b) Negative Covenants. Lessee shall not (i)
voluntarily or involuntarily create, incur, assume or suffer to exist any
mortgage, lien, security interest, pledge or other encumbrance or attachment of
any kind whatsoever upon, affecting or with respect to the Equipment or this
Lease or any of Lessee's interest thereunder; (ii) permit the name of any
person, association or corporation other than the Lessor to be placed on the
Equipment as a designation that might be interpreted as a claim of ownership or
security interest; (iii) part with possession or control of or suffer or allow
to pass out of its possession or control any item of the Equipment or change the
location of the Equipment or any part thereof from the address shown above; (iv)
ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS
UNDER THIS LEASE OR ENTER INTO ANY SUBLEASE OF ALL OR ANY PART OF THE EQUIPMENT;
(v) change its name or address from that set forth above unless it shall have
given Lessor or its assigns no less than thirty (30) days' prior written notice
thereof; (vi) permit the sale or transfer of any shares of its capital stock or
of any ownership interest in the Lessee to any person, persons, entity or
entities (whether in one single transaction or in multiple transactions) which
results in a transfer of a majority interest in the ownership and/or the control
of the Lessee from the person, persons, entity or entities who hold ownership
and/or control of the Lessee as of the date of this Master Lease; or (vii)
consolidate with or merge into or with any other entity, or purchase or
otherwise acquire all or substantially all of the assets or stock or other
ownership interest of any person or entity or sell, transfer, lease or otherwise
dispose of all or substantially all of Lessee's assets to any person or entity.
7. TAXES. Lessee shall promptly pay when due all sales, use, property, excise
and other taxes and all license and registration fees now or hereafter imposed
by any governmental body or agency upon the Equipment or its use, purchase,
ownership, delivery, leasing, possession, storage, operation, maintenance,
repair, return or other disposition of the Equipment, or for titling or
registering the Equipment, or upon the income or other proceeds received with
respect to the Equipment or this Lease or the rentals hereunder; provided,
however, that Lessee shall not be required to pay taxes on or measured by the
net income of Lessor. Lessee shall prepare and file all tax returns relating to
taxes for which Lessee is responsible hereunder which Lessee is permitted to
file under the laws of the applicable taxing jurisdiction.
8. INDEMNITY. Lessee hereby agrees to indemnify and hold Lessor harmless from
and against any and all claims, losses, liabilities (including negligence, tort
and strict liability), damages, judgments, suits, and all legal proceedings, and
any and all costs and expenses in connection therewith (including attorneys'
fees) arising out of or in any manner connected with the manufacture, purchase,
financing, ownership, delivery, rejection, non-delivery, transportation,
possession, use, storage, operation, condition, maintenance, repair, return or
other disposition of the Equipment or with this Lease, including without
limitation, claims for injury to or death of persons and for damage to property,
and give Lessor prompt notice of any such claim or liability.
9. ASSIGNMENT. Lessor may assign its interest in this Lease and sell or grant
a security interest in all or any part of the Equipment without notice to or the
consent of Lessee. Lessee agrees not to assert against any assignee of Lessor
any claim or defense Lessee may have against Lessor.
10. EQUIPMENT PERSONALTY. The Equipment shall remain personal property
regardless of its attachment to realty, and Lessee agrees to take such action at
its expense as may be necessary to prevent any third party from acquiring any
interest in the Equipment as a result of its attachment to realty. If requested
by Lessor with respect to any item of the Equipment, Lessee will obtain and
deliver to Lessor waivers of interest or liens in recordable form, satisfactory
to Lessor, from all persons claiming any interest in the real property on which
such item of the Equipment is installed or located.
11. USE AND MAINTENANCE. Lessee will use the Equipment with due care and for
the purpose for which it is intended. Lessee will maintain the Equipment in good
repair, condition and working order and will furnish all parts and services
required therefor, all at its expense, ordinary wear and tear excepted. Lessee
shall, at its expense, make all modifications and improvements to the Equipment
required by law, and shall not make other modifications or improvements to the
Equipment without the prior written consent of Lessor. All parts, modifications
and improvements to the Equipment shall, when installed or made, immediately
become the property of Lessor and part of the Equipment for all purposes.
12. LOSS OR DAMAGE. No loss or damage to the Equipment or any part thereof
shall affect any obligation of Lessee under this Lease which shall continue in
full force and effect. Lessee shall advise Lessor in writing promptly of any
item of Equipment lost or damaged and of the circumstances and extent of such
damage. In the event any item of Equipment shall become lost, stolen, destroyed,
damaged beyond repair or rendered permanently unfit for use for any reason, or
in the event of condemnation or seizure of any item of Equipment, Lessee shall
promptly pay Lessor an amount equal to the greater of the fair market value of
such items or the sum of (a) the amount of all rent and other amounts payable by
Lessee hereunder with respect to such items due but unpaid at the date of such
payment plus (b) the amount of all unpaid rent with respect to such items for
the balance of the term of this Lease not yet due at the time of such payment
discounted from the respective dates installment payments would be due at the
rate implicit in the schedule of rental payments when applied to the cost of
such item plus (c) 10% of the cost of such item as shown in the related
Supplement. Upon payment of such amount to Lessor, such item shall become the
property of Lessee, Lessor will transfer to Lessee, without recourse or
warranty, all of Lessor's right, title and interest therein, the rent with
respect to such item shall terminate, and the basic rental payments on the
remaining items shall be reduced accordingly. Lessee shall pay any sales and use
taxes due on such transfer. Any insurance or condemnation proceeds received
shall be paid to Lessor and credited to Lessee's obligation under this paragraph
and Lessor shall be entitled to any surplus. Whenever the Equipment is damaged
and such damage can be repaired, Lessee shall, at its expense, promptly effect
such repairs as Lessor shall deem necessary for compliance with paragraph 11
above. Proceeds of insurance shall be paid to Lessor with respect to such
reparable damage to the Equipment and shall, at the election of Lessor, be
applied either to the repair of the Equipment by payment by Lessor directly to
the party completing the repairs, or to the reimbursement of Lessee for the cost
of such repairs; provided, however, that Lessor shall have no obligation to make
such payment or any part thereof until receipt of such evidence as Lessor shall
deem satisfactory that such repairs have been completed and further provided
that Lessor may apply such proceeds to the payment of any rent or other sum due
or to become due hereunder if at the time such proceeds are received by Lessor
there shall have occurred any Event of Default or any event which with lapse of
time or notice, or both, would become an Event of Default.
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[WELLS FARGO LOGO]
WELLS FARGO EQUIPMENT FINANCE, INC. AMENDMENT TO MASTER LEASE
733 Marquette Avenue,
Investor's Building, Suite 700
Minneapolis, MN 55479-2048
Wells Fargo Equipment Finance, Inc. ("Lessor") and MEADOW VALLEY CONTRACTORS,
INC. ("Lessee") hereby agree to amend Master Lease 102541 dated as of MARCH 19,
2004 (the "Lease") as follows:
1. Paragraph 6(vi) is amended by inserting by replacing "thirty (30)"
days with "forty-five (45)" days, and inserting after "chief
financial officer" "or principal accounting officer". Also,
Paragraph 6(vi) is amended by replacing the words "acceptable to
Lessor" with "selected by the company's audit committee".
2. Paragraph 7 is amended by inserting the following sentence at the
end of the paragraph. "Property tax returns shall be prepared by
Lessor as equipment owner as stipulated by Arizona regulation."
3. Paragraph 14 is amended by deleting "within the continental United
States as Lessor shall designate. Lessee shall pay all
transportation and other expenses relating to such delivery." and
inserting "as Equipment was received after "such location".
Except as modified herein, the terms and conditions of the Lease remain the
same.
Date: March 29, 2004
Wells Fargo Equipment Finance, Inc. Meadow Valley Contractors, Inc.
By:_______________________________ By: /s/ [ILLEGIBLE]
----------------
Title:____________________________ Title: [ILLEGIBLE]
MeadowValleylAmendmenttolease/slb
[WELLS FARGO LOGO]
WELLS FARGO EQUIPMENT FINANCE, INC. ADDENDUM NO. 1
Investor's Building, Suite 300
733 Marquette Avenue, TO SUPPLEMENT NO. 102451-100 DATED MARCH 19, 2004
Minneapolis, MN 55479-2048 TO MASTER LEASE NO. 102451 DATED MARCH 19, 2004
Wells Fargo Equipment Finance, Inc. ("Lessor") and Meadow Valley Contractors,
Inc. ("Lessee") hereby amend Master Lease No. 102541 dated March 19, 2004 solely
as it relates to Supplement No. 102541-100 by adding the following:
In addition to, but not in substitution for, the return and maintenance
provisions contained in the Master Lease, Lessee agrees to comply with the
following maintenance provisions during the initial term of the Lease and upon
return of the Equipment to Lessor.
MAINTENANCE & REPAIR:
a. Lessee at all times will maintain the Paver in a condition and
manner suggested by the original manufacturer as required to
validate any warranty.
b. Lessee will use only original manufacture's approved replacement
parts and components in the performance of any maintenance and
repair of the Paver.
c. Lessee will maintain current maintenance and repair records for the
Paver in a useable manner and will submit to Lessor upon the return
of the Paver.
d. Lessee will at all times maintain the Paver in good operational
condition and appearance, and cannot discriminate such maintenance
between owned or leased Equipment.
RETURN CONDITIONS:
a. The Paver will be in a condition whereby it can be put immediately
into revenue service at its original designated function and
capacity.
b. The tracks and or tires and the complete undercarriage will be
intact and have no damage of any kink. Track pads and tires will
have a minimum of 50% useful life remaining.
c. The paver will be free of damage of any kind. There will be no
leaking hydraulic cylinders. Additional attachments included will be
completely intact, free of damage and operable as originally
designed.
d. The engine, electrical system, radiator and cooling system, and
complete hydraulic systems will operate to the original
manufacturer's specifications. There will be no fluid leaks and all
hoses, pumps, etc. will be in good condition. Any repairs required
by Lessee must be complete at its expense prior to return of the
Paver.
e. Yearly hours of usage may not exceed 1500 hours.
f. The transmission, clutches, drive train and hydraulic system will
function properly within the manufacturer's operating
specifications.
g. The Screed Plate must have no less than 1/4 inch thickness.
h. The operator's cab will be clean. The seat will be free of tears,
rips, burns, stains or holes: all operator controls will be fully
functional.
i. The complete unit will be reasonably clean without rust/corrosion,
dirt, and foreign material. The paint will be in good condition.
j. All Lessee logos or identification will be removed in a workmanlike
manner so that the exterior paint is uninterrupted and uniform in
appearance.
In the event of a conflict between the terms of this Addendum and the Master
Lease, the terms of this Addendum shall control. Capitalized terms used herein,
which are not otherwise defined, shall have the meanings given to them in the
Master Lease and the Supplement referenced above.
Except as modified herein the terms and conditions of the Lease remain the same
and continue in full force and effect.
Dated: March 19, 2004
Wells Fargo Equipment Finance, Inc., Lessor Meadow Valley Contractors,
Inc., Lessee
By:_____________________________ By: /s/ [ILLEGIBLE]
--------------------
Title:__________________________ Title: [ILLEGIBLE]
Meadow Valley Contractors 2/Return Provisions/AZ
[WELLS FARGO LOGO]
WELLS FARGO EQUIPMENT FINANCE, INC. ADDENDUM NO. 2
Investor's Building, Suite 300
733 Marquette Avenue, TO SUPPLEMENT NO. 102451-100 DATED MARCH 19, 2004
Minneapolis, MN 55479-2048 TO MASTER LEASE NO. 102451 DATED MARCH 19, 2004
Wells Fargo Equipment Finance, Inc. ("Lessor") and Meadow Valley Contractors,
Inc. ("Lessee") hereby amend Master Lease No. 102541 dated March 19, 2004 solely
as it relates to Supplement No. 102541-100 by adding the following:
In addition to, but not in substitution for, the return and maintenance
provisions contained in the Master Lease, Lessee agrees to comply with the
following maintenance provisions during the initial term of the Lease and upon
return of the Equipment to Lessor.
MAINTENANCE & REPAIR:
a. Lessee at all times will maintain the Equipment in a condition and
manner suggested by the original manufacturer, including without
limitation as required to validate any warranty.
b. Lessee will use only original manufacturer's approved replacement
parts and components in the performance of any maintenance and
repair of the Equipment.
c. Lessee will maintain current maintenance and repair records for the
Equipment in a usable manner and give to Lessor upon return of the
Equipment.
d. Lessee will at all times maintain the Equipment in good operational
condition and appearance and will not maintain the Equipment
differently than Lessee maintains equipment of a similar type that
it owns or leases from others.
RETURN CONDITIONS: Upon return of the Equipment to Lessor:
a. The Equipment will be in a condition whereby it can be placed
immediately into revenue producing service at its original
designated function and capacity.
b. The rollers will be free of damage of any kind and capable of
performing its originally intended function.
c. The entire hydraulic system will be free of any leaks, cuts and
cracks and will operate as designed by the manufacturer.
d. The engine, transmission, complete drive train, vibratory and
electrical systems will operate to the manufacturer's recommended
specifications and will have no fluid leaks.
e. The operator's station will be completely clean with all controls
functioning at their original designated capacity.
f. The Equipment overall will be completely clean and free of
rust/corrosion, dirt or any foreign material and with any Lessee
logs or identification removed in a workmanlike manner so as to
maintain a uniform appearance.
g. If the Equipment or any of its components, covered in this Lease has
a predictable, recommended or scheduled maintenance, recalibration,
overhaul, rebuild or replacement, Lessee shall ensure that the
Equipment or its components shall have no less than 50% of its
useful life/hours remaining until the next scheduled maintenance,
recalibration, overhaul, rebuild or replacement. If the Equipment or
any of its components has less than 50% of useful life/hours
remaining, Lessee will be charged the entire apportioned share of
the estimated costs required to complete the required work.
h. Lessee will provide, at its expense, a complete written mechanical
inspection report by party designated by the Lessor.
i. The hours of usage shall not exceed 2200 per 12-month period, the
first of which shall commence on the date an item of Equipment is
first used by Lessee under the Lease. Usage above such level will
result in a charge of $25 per hour of usage in excess of the usage
allowed. Excess usage fee shall be due and payable by Lessee upon
receipt of an invoice therefore from Lessor.
In the event of a conflict between the terms of this Addendum and the Master
Lease, the terms of this Addendum shall control. Capitalized terms used herein,
which are not otherwise defined, shall have the meanings given to them in the
Master Lease and the Supplement referenced above.
Except as modified herein the terms and conditions of the Lease remain the same
and continue in full force and effect.
Dated: March 19, 2004
Wells Fargo Equipment Finance, Meadow Valley Contractors,
Inc., Lessor Inc., Lessee
By:__________________________ By: /s/ [ILLEGIBLE]
-------------------
Title:______________________ Title: [ILLEGIBLE]
Meadow Valley Contractors 2/Return Provisions/AZ