Exhibit 10.151
Trinity Capital Corporation
000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000 Fax: (000) 000-0000
LESSEE: MEADOW VALLEY CONTRACTORS, INC. SUPPLIER: TRIMBLE PRODUCTS
0000 X 00xx XXXXXX #X-00 0000 XXXXXXXXXXXX XXXX
XXXXXXX, XX 00000 XXXXXX, XX 00000
PHONE: 000-000-0000 PHONE: 000-000-0000
EQUIPMENT: See Exhibit A attached hereto and made a part of this Schedule
EQUIPMENT SCHEDULE LEASE TERMS:
Commencement Date of Lease: 6-1-01 (To be filled in pursuant to Paragraph 1 below)
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Lease Term (number of months): 48, plus any extension and renewal periods
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Number of Monthly Rentals paid in advance:1(First and Last 0)
- -
End of Term: Purchase Option: $1.00
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Monthly Rental Amount: $2,711.02, plus applicable taxes, if any
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Security Deposit, if any: N/A
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TERM AND CONDITIONS
This Commercial Lease Agreement (the "Agreement") has been written in plain
English. The words "you" and "your" herein refer to the Lessee listed above. The
words "we", "us" and "our" refer to the Lessor, Trinity Capital Corporation.
1. Term and Rent. We agree to lease to you and you agree to lease from us the
personal property listed in any attached exhibit, plus any replacements,
additions and accessories attached to the property (the "Equipment") for the
full number of consecutive months stated above (the "Lease Term"). You agree to
pay to us the Monthly Rental payment ("Rental") for the full Lease Term and any
renewals and extensions. This Equipment and the supplier referenced above have
been selected by you and if you have entered into any purchase or supply
contracts for the Equipment, you assign to us your rights under such supply
contracts. By executing this Lease, you request us to order the Equipment,
arrange for its delivery to you and pay for the Equipment upon your acceptance
of it. This Lease will begin on the date when the Equipment is accepted by you
and the Equipment will be deemed irrevocably accepted by you upon the earlier
of: a) the delivery to us of a signed Acceptance Certificate (if requested by
us); or b) 10 days after delivery of the Equipment to you if previously you have
not given written notice to us of your non-acceptance. Rentals are due monthly
beginning in advance of the date you accept the Equipment and on the first day
of each month thereafter for Equipment accepted on the 1st through the 14th day
of the month or on the fifteenth day of each month thereafter for Equipment
accepted on the 15th through the 24th day of the month or on the 25th day of
each month thereafter for Equipment accepted from the 25th through the last day
of the month.
2. Disclaimer of Warranties. We are leasing the Equipment to you "AS IS". WE
MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE MERCHANTABILITY AND
PERFORMANCE OF THE EQUIPMENT OR THE EQUIPMENT'S FITNESS FOR A PARTICULAR PURPOSE
OR ITS COMPLIANCE WITH APPLICABLE LAW. WE MAKE NO WARRANTY OF TITLE TO ANY
PORTION OF THE EQUIPMENT WHICH CONSISTS OF SOFTWARE, SOFTWARE LICENSES AND/OR
THE RIGHT TO USE ANY SOFTWARE. You acknowledge that we do not manufacture,
deliver or install the Equipment, we do not represent the supplier(s) of the
Equipment and you have selected the Equipment and the supplier(s) based on your
own judgment. You agree not to make any claim for any reason against us for
consequential damages. You acknowledge you have been advised that you may have
rights against the supplier(s) of the Equipment and that you should contact each
supplier for a description of any such rights. So long as this Agreement is not
in default, we assign to you any warranties received by us in connection with
the Equipment.
3. Noncancelable Lease. This Agreement cannot be canceled and you agree that all
your obligations are unconditional. Upon your acceptance of the Equipment and to
the extent permitted by law, you agree to waive any rights to reject the
Equipment and repudiate this Agreement pursuant to Sections 10401 through 10522
of the California Commercial Code.
4. Governing Law. You agree that this Agreement shall be governed by the laws of
the State of California. You agree that any litigation, related to or arising
from this agreement, may be brought only in the City and County of San
Francisco, California and you consent to personal jurisdiction in either state
or federal court.
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THE UNDERSIGNED AGREE TO ALL OF THE TERMS AND CONDITIONS ABOVE AND ON PAGE 2 OF
THIS AGREEMENT AND ANY ATTACHED EXHIBITS AND SCHEDULES MADE A PART OF THIS
AGREEMENT. THIS IS A NON-CANCELABLE AGREEMENT.
LESSOR:
TRINITY CAPITAL CORPORATION
This Schedule shall not be binding on us until it has been accepted and
executed by the Lessor at its San Francisco, CA. office.
Signature: /s/ Xxxx Xxxxxx
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Title: SCO
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Date: 6-11-01
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LESSEE:
MEADOW VALLEY CONTRACTORS, INC.
The undersigned affirms that he/she is a duly authorized corporate officer,
partner or proprietor of the above-named Lessee.
Signature: X /s/ Xxxxxxx X. Xxxxxx
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Title: X VICE PRESIDENT
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Date: X 5-10-01
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The original of this Agreement has the Lessor's original signature. Any
purchaser of this paper is hereby notified that a security interest has been
granted to the party holding the copy of this Agreement with the original
Lessor's signature.
COMMERCIAL LEASE AGREEMENT NO.: 0025150-002
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Page 2 of 2
5. Agency. You agree that no salesperson or representative of any supplier is
acting on behalf of us or can bind us in any way.
6. Late Charges. Time is of the essence. If any Rental or other amount due
under this Agreement is not paid within 10 days after its due date, you agree to
promptly pay a late charge of 10% of the past due amount, subject to a $25
minimum, for those amounts under 30 days past due, plus interest on any amounts
over 30 days past due at the rate of 1.5% per month. However, in no event shall
these late charges exceed the maximum lawful charges.
7. Ownership and Use of Equipment. We are the owners of the Equipment and you
have no rights to the Equipment except as provided for in this Agreement. You
agree to keep the Equipment clear of all liens, claims and encumbrances. You
agree that the Equipment will remain our personal property regardless of its
attachment to realty. You agree to use the Equipment only for business purposes
and in compliance with its intended use, any applicable laws and any license
agreement pertaining to the Equipment. You agree to keep the Equipment at an
appropriate and safe location, and you agree to promptly inform us of such
location in advance. Subject to Sections 13 and 14 of this Agreement, you agree,
at your expense, to return the Equipment to us at the end of the Lease Term (or
any renewal term) to our address above, or to such address as we may designate
in writing, in the same condition as it was delivered to you except for ordinary
wear and tear. You agree that we are not responsible for any losses or injuries
caused in connection with the Equipment. You agree to indemnify us for and, at
our option and your expense, defend us against any claims, suits and actions,
including negligence and strict liability, whenever made for losses or injuries
related to the Equipment.
8. Equipment Maintenance. You are responsible, at your expense, to maintain
the Equipment in good working order. If any Equipment is damaged, missing or
does not work satisfactorily for any reason, you agree to continue to pay all
Rentals and other amounts under this Agreement when they become due You shall
not make any alterations to the Equipment without our advance written consent
You agree that we may inspect the Equipment at any reasonable time.
9. Taxes and Fees. You agree to pay when due, either directly or to us upon
our demand, all taxes, filing fees, license fees, interest and penalties
relating to this Agreement and the Equipment. If we pay any of these amounts you
agree to reimburse us upon demand and to pay to us a $25.00 service charge. You
agree to pay to us a documentation fee of $75.00 to cover our costs of preparing
this Agreement. You shall pay to us a fee of $20.00 for every check that is
returned to us as unpaid by your bank.
10. Risk of Loss and Insurance. You are responsible for any loss or damage to
the Equipment and/or caused by the Equipment until all of your obligations under
this Agreement have been fulfilled. You agree to immediately notify us of any
such losses or damages and of any insurance claims pertaining to the Equipment.
If the Equipment or any portion of the Equipment is missing, stolen or damaged,
you will, at our option and at your expense, promptly repair the Equipment to
our satisfaction, replace the Equipment with comparable equipment of equal value
or pay to us any default remedies described under Section 12 of this Agreement.
At your expense you agree to keep the Equipment fully insured against loss until
your obligations under this Agreement are paid in full, with any loss payable to
us. You will maintain public liability coverage that is acceptable to us and
include us as an insured on that policy. You agree to provide us with
satisfactory evidence of the required insurance. You agree that we may sign,
endorse and/or negotiate on your behalf as attorney-in-fact for you any
instrument representing proceeds from any insurance policy covering the
Equipment. If we obtain any of the required insurance for you, you agree to pay
to us on demand the cost of that insurance. You acknowledge that we are not
required to maintain any insurance and we will not be liable to you if we
terminate or modify any insurance coverage that we may arrange.
11. Assignment. You may not sell, transfer, assign or sublease the Equipment
or this Agreement without our advance written consent and payment to us of an
assignment processing fee. You agree that we may sell or assign this Agreement
and any security interest without notice to you, and that our assignee shall
have all of our rights under this Agreement. You agree that the rights of our
assignee will not be subject to any claims, defenses or setoffs that you may
have against us.
12. Default and Remedies. You are in default if you a) fail to pay any
Rental when due; b) fail to comply with any requirement of this Agreement and/or
any other obligation to us and/or any license agreement, system support
agreement, mandatory maintenance agreement or installation agreement, pertaining
to the Equipment; c) any representation made to us by or on behalf of you and/or
any guarantor of your obligations hereunder is found to have been false when
made. Upon such default, we may, at our option, do one or more of the following:
a) require you to immediately pay the remaining amounts due under this Agreement
including but not limited to the balance of unpaid Rentals discounted to its
present value at a rate of 5% per year; b) terminate this Agreement and/or any
other agreements we have entered into with you; c) require you to immediately
pay us the value of the Equipment or promptly return the Equipment to us in good
condition; d) peacefully enter onto your premises and take possession of the
Equipment without liability to you for trespass or damages; e) deactivate the
Equipment; and f) use any other remedies available to us at law or in equity.
You agree that any delay or failure by us to enforce this Agreement does not
prevent us from enforcing our rights at a later time. You agree to pay all of
our costs to enforce this Agreement including reasonable attorney's fees and the
costs of repossessing, refurbishing, storing and selling the Equipment. If we
take possession of the Equipment, we may sell or otherwise dispose of it at a
public or private sale, and apply the proceeds (after deducting our disposition
costs) to the amounts that are due to us. Our acceptance of any amount due
hereunder which is less than payment in full of all amounts due and owing at
that time shall not constitute a waiver of our right to receive payment in full.
13. Renewal. Unless you have returned the Equipment to us by the end of the
original Lease Term, this Agreement will be automatically renewed and the Lease
Term extended on a continuing month-to-month basis at the same Monthly Rental
amount as that of the final Rental of the original Lease Term. You can terminate
this automatic renewal by sending advance written notice to us. Such termination
shall be effective 30 days after our receipt of such notice, provided that you
have returned the Equipment to us in good condition or purchased the Equipment
from us by that termination date.
14. Purchase Option. If it is indicated above that you have been given an end
of Lease Term purchase option and if you are not in default under this
Agreement, you may purchase all of the Equipment at the end of the Lease Term
for the stated price plus any applicable taxes and remaining amounts due
hereunder. Such purchase of the Equipment shall be "AS IS, WHERE IS" and we make
no warranties of any kind. If the purchase price is "Fair Market Value" and we
and you cannot agree on such value, you may, at your expense, retain an
independent appraiser acceptable to us and such appraisal shall be binding.
15. Miscellaneous. You agree that this Agreement is the entire agreement you
have with us pertaining to this Equipment and it cannot be changed except as
agreed by you and us in writing. You agree, however, that we are authorized,
without notice to you, to supply missing information or correct obvious errors
in this Agreement. You agree that the Rental amount may be adjusted to reflect
any change in the Equipment cost as a result of any Equipment change orders,
add-ons, returns, errors or other similar events verbally agreed to by you. In
the event of any such adjustment, we will furnish you a written notice thereof.
You agree that a signed faxed version of this Agreement and Acceptance
Certificate shall be deemed to be of the same force and effect as an original of
a manually signed Agreement and Acceptance Certificate. You agree that we can
sign any applicable UCC financing statement as attorney-in-fact for you until
such time as all of your obligations to us have been fulfilled. You hereby
authorize any employee of yours to accept the Equipment and sign on your behalf
any Acceptance Certificate pertaining to the Equipment. This Agreement is
binding upon the successors and assigns of you and us. If there is more than one
Lessee, your obligations shall be joint and several. You agree that all of our
rights under this Agreement (including indemnity rights) shall survive any
expiration or termination of this agreement.
