Exhibit 10.163
CATERPILLAR FINANCIAL SERVICES CORPORATION FINANCE LEASE
Dated as of Oct 18 2001
LESSEE: MEADOW VALLEY LESSOR: CATERPILLAR FINANCIAL SERVICE
CONTRACTORS INC. CORPORATION
ADDRESS: 0000 X. 00xx, XXXXX X00 ADDRESS: 0000 Xxxx Xxx Xxxxxx
XXXXXXX, XX 00000 Xxxxxxxxx, XX 00000-0000
K-179710
Lessor, in reliance on Lessee's selection of the equipment 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) 966G Caterpillar WHEEL LOADER 3SW00499 4,216.92 1.00
Rent to be paid: in arrears (starts one month after Delivery Date) and every
month thereafter.
Lease Term: 48 Months Utilization Date: JANUARY 31, 2002
The [X] Mandatory Final Payment (Section 13) [ ] Optional Final Payment (Section
14) is applicable to this Lease (check one)
Location of Unit(s) 0000 X. 00xx, XXXXX X00
XXXXXXX, XX 00000 MARICOPA
ADDITIONAL PROVISIONS: RIDERS:
TERMS AND CONDITIONS
1. LEASE TERM: The lease term of 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 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 X.X. XXX 000000, XXXXXXXX, XX
00000-0000 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 state 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 the 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 Lessor is not
the manufacturer of the Unit(s) and that Lessee has selected each Unit based on
Lessee's own judgment without any reliance whatsoever on any statements or
representations made by Lessor. AS BETWEEN LESSOR AND LESSEE, THE UNIT(S) ARE
PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND. LESSOR HEREBY EXPRESSLY
DISCLAIMS a) ALL WARRANTIES OF MERCHANTABILITY, b) ALL WARRANTIES OF FITNESS FOR
A PARTICULAR PURPOSE, AND c) ALL WARRANTIES AGAINST INFRINGEMENT OR THE LIKE.
Lessor assigns to Lessee its interest in any of the manufacturer's warranties on
the Unit(s).
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 use of unit from that specified in
the Application Survey/Usage Rider attached hereto, or change the location of a
Unit form 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 or 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 lest 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 Lessee: CATERPILLAR FINANCIAL SERVICES
CONTRACTORS, INC. CORPORATION
By /s/ XXXXXXX X. XXXXXX By /s/ XXXXXXX X. XXXX
------------------------------ ------------------------------
Name (PRINT) XXXXXXX X. XXXXXX Name (PRINT) Xxxxxxx X. Xxxx
-------------------- --------------------
Title PRESIDENT Title Documentation Manager
--------------------------- ---------------------------
Date 10/15/2001 Date 10/18/01
---------------------------- ----------------------------
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, taxes 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 1986, 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 damage) or other damage from the time it is
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 lesser 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; or (b) the maximum amount permitted
by law. Present values will be determined by discounting at the implied 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 HEREBY AGREES TO RELEASE, DEFEND, INDEMNIFY
AND HOLD HARMLESS LESSOR, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND ASSIGNS
FROM AND AGAINST ANY CLAIMS OF LESSEE OR THIRD PARTIES, INCLUDING CLAIMS BASED
UPON BREACH OF CONTRACT, BREACH OF WARRANTY, PERSONAL INJURY, PROPERTY DAMAGE,
STRICT LIABILITY OR NEGLIGENCE, FOR ANY LOSS, DAMAGE OR INJURY CAUSED BY OR
RELATING TO THE DESIGN, MANUFACTURE, SELECTION, DELIVERY, CONDITION, OPERATION,
USE OWNERSHIP, MAINTENANCE OR REPAIR OF ANY UNIT. FURTHER, LESSEE AGREES TO BE
RESPONSIBLE FOR ALL COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEY'S FEES,
INCURRED BY LESSOR OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND ASSIGNS IN
DEFENDING SUCH CLAIMS OR IN ENFORCING THIS PROVISION. UNDER NO CONDITION OR
CAUSE OF ACTION SHALL LESSOR BY LIABLE FOR ANY LOSS OF ACTUAL OR ANTICIPATED
BUSINESS OR PROFITS OR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
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 ten (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 payments of and to endorse all checks, drafts and
other documents and to take any other action 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 client and shall
provide Lessor with all requested printed 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 this 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 or 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 and additional security pursuant to Section 12; and (iv) enter
the premises where any Unit or additional security may be and take possession
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
additional security 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 and
additions security, 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 and additional security. Any surplus shall be paid to
the person entitled to it. Leases shall promptly pay any deficiency to Lessor.
Lessee acknowledges that sales for cash or credit to a wholesaler, retailer or
user of a Unit or additional security 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) the premises of the nearest Caterpillar dealer selling equipment of
the same type as the Unit, or (b) on board of a carrier named by Lessor and
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 xxxx of sale, Lessor shall deliver
to Lessee, upon request, a xxxx 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 xxxx of sale, Lessor shall deliver to Lessee, upon request, a
xxxx 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 a 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 accessories thereto, and proceeds of all of the foregoing,
including, but not limited to, proceeds in the form of chattel paper 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 deems desirable in its discretion to process Lessor's security interest
in the Unit and Lessor's rights and benefits under this Lease. Lessee hereby
irrevocably appoints Lessor as Lessee's Attorney-in-Fact for the signing and
filing of such documents and authorizes Lessor to delegate these limited powers.
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, during the lease term,
display in a prominent place on the Unit labels supplied by Lessor stating that
the Unit is leased from Lessor. Lessee further represents and warrants to Lessor
that Lessee will not change its principal place of business or primary residence
and, if a business entity, its form of business organization (including any
merger, consolidation, reincorporation or such similar restructuring), without
prior written notice to Lessor.
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 henceforth mean 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; NOTICES: 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, addressed to the other party at
the address stated on the front or at such other address as may hereafter by
furnished in writing.
18. APPLICABLE LAW, JURISDICTION AND JURY TRIAL WAIVER PROVISIONS: This
Agreement shall be governed by and construed under the laws of the State of
Tennessee, without giving effect to the conflict-of-laws principles thereof, and
Lessee hereby consents to the jurisdiction of any state or federal court located
within the State of Tennessee. THE PARTIES HERETO HEREBY WAIVE THE RIGHT TO
TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OBLIGATIONS OR THE COLLATERAL.
19. 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 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.
GUARANTY OF PAYMENT
THIS GUARANTY ("Guaranty") is made and entered into as of October 18, 2001 by
MEADOW VALLEY CORPORATION, (thereinafter, referred to as "Guarantor"), in favor
of Caterpillar Financial Services Corporation, 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000-0000 (hereinafter referred to as "Caterpillar Financial"),
guaranteeing the Indebtedness (as hereinafter defined) of MEADOW VALLEY
CONTRACTORS, INC. (hereinafter referred to as "Obligor").
WITNESSETH:
FOR VALUE RECEIVED, and/or as an inducement to Caterpillar Financial to now or
hereafter enter into, purchase or otherwise acquire the agreements, accounts
and/or other obligations evidencing and/or securing Obligor's Indebtedness and
in consideration of and for credit and financial accommodations now or hereafter
extended to or for the account of the Obligor (which includes Caterpillar
Financial's consent to an assignment and/or assumption of the Indebtedness),
which is in the best interest of Guarantor and which would not have been
extended but for this Guaranty, the Guarantor agrees as follows:
SECTION 1. Guaranty of Obligor's Indebtedness. Guarantor hereby absolutely,
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irrevocably and unconditionally agrees to, and by these presents does hereby:
(a) guarantee the prompt and punctual payment, performance and satisfaction of
all present and future indebtedness and obligations of Obligor to Caterpillar
Financial which Obligor now owes Caterpillar Financial or which Obligor shall at
any time or form time to time hereafter owe Caterpillar Financial when the same
shall become due in connection with or arising out of that certain FINANCE LEASE
by and between Obligor and Caterpillar Financial dated 10/18/01, including any
and all existing and future additional schedules, amendments and/or related
agreements thereto (the "Contract"), whether direct or contingent, due or to
become due, joint or several, primary or secondary, liquidated or unliquidated,
secured or unsecured, original or renewed or extended, or by open account or
otherwise, and whether representing rentals, principal, interest and/or late
charges of an original balance, an accelerated balance, a balance reduced by
part payment or a deficiency after sale of collateral or otherwise and (b)
undertake and guarantee to pay on demand and indemnify Caterpillar Financial
against all liabilities, losses, costs, attorney's fees, and expenses which may
be suffered by Caterpillar Financial by reason of Obligor's default or default
of the Guarantor (with all of Obligor's indebtedness and/or obligations as
stated above (including all costs, fees and expenses) being hereinafter
individually and collectively referred to under this Guaranty as Obligor's
"Indebtedness", which Indebtedness shall be conclusively presumed to have been
created in alliance upon this Guaranty).
SECTION 2. Joint, Several and Solidary Liability. Guarantor further agrees that
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its obligations and liabilities for the prompt and punctual payment, performance
and satisfaction of Obligor's Indebtedness are independent of any agreement or
transaction with any third parties and shall be on a "joint and several" and
"solidary" basis along with Obligor to the same degree and extent as if
Guarantor had been and/or will be a co-borrower, co-principal obligor and/or
co-maker of Obligor's Indebtedness. In the event that there is more than one
guarantor under this Guaranty, or in the event that there are other guarantors,
endorsers, sureties or any other party who may at any time become liable for all
or any portion of Obligor's Indebtedness (each, an "Other Obligor"), the
provisions hereof shall be read with all grammatical changes thereby rendered
necessary and each reference to the Guarantor shall include each and every one
of those parties liable for all or any portion of Obligor's Indebtedness and
each Guarantor's obligations and liabilities and hereunder shall be on a "joint
and several" and "solidary" basis along with such Other Obligors.
SECTION 3. Duration; Cancellation of Guaranty. This Guaranty and Guarantor's
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obligations and liabilities hereunder shall remain in full force and effect
until such time as Obligor's Indebtedness shall be fully and finally paid,
performed and/or satisfied, until such time as the Guaranty may be cancelled by
Caterpillar Financial under a written cancellation instrument in favor of
Guarantor or otherwise as stated herein.
SECTION 4. Default by Obligor. Immediately upon Obligor's default under any of
------------------------------
its Indebtedness in favor of Caterpillar Financial, Caterpillar Financial may
make demand upon Guarantor unconditionally and absolutely agrees to pay the full
then unpaid amount of all of Obligor's Indebtedness (whether at stated maturity,
by required prepayment, declaration, acceleration or otherwise) and/or perform
any covenant or agreement hereunder guaranteed. Such payment or payments shall
be made immediately following demand by Caterpillar Financial at Caterpillar
Financial's offices as indicated above.
SECTION 5. Additional Covenants. Guarantor further agrees that Caterpillar
--------------------------------
Financial may, at its sole potion, at any time, and from time to time, without
the consent of or notice to guarantor, or to any other party, and without
incurring any responsibility to Guarantor or to any other party, and without
affecting, impairing or releasing the obligations of the Guarantor under this
Guaranty: (a) discharge or release any party (including, but not limited to,
Obligor, secondary obligors of Obligor's Indebtedness or any co-guarantor under
this Guaranty) who is or may be liable to Caterpillar Financial for Obligor's
Indebtedness; (b) sell at public or private sale, exchange, release, impair,
surrender, substitute, realize upon or otherwise deal with, in any manner and in
any order and upon such terms and conditions as Caterpillar Financial deems best
at its uncontrolled discretion, any leased equipment and/or any collateral
listed in the Contract or now or hereafter otherwise directly or indirectly
securing repayment of Obligor's Indebtedness (all such leased equipment and/or
all such collateral shall hereinafter be referred to as the "Equipment"),
including without limitation, the purchase of all or any part of such collateral
for Caterpillar Financial's own account; (c) change the manner, place or terms
of payment and/or available credit (including without limitation increase or
decrease in the amount of such payments, available credit or any interest rate
adjustments), or change or extend the time of payment of or renew, as often and
for such periods as Caterpillar Financial may determine, or alter Obligor's
Indebtedness or grant any other indulgence to Obligor and/or any secondary
obligors of Obligor's Indebtedness or any co-guarantor under this Guaranty; (d)
settle or compromise Obligor's Indebtedness with Obligor or all of Obligor's
Indebtedness; and/or (f) enter into, deliver, modify, amend or waive compliance
with, any instrument, agreement or arrangement evidencing, securing or otherwise
affecting, all or any part of Obligor's Indebtedness.
SECTION 6. No Release of Guarantor. Guarantor's obligations and liabilities
-----------------------------------
under this Guaranty shall not be released, impaired, reduced or otherwise
affected by, and shall continue in full force and effect, notwithstanding the
occurrence of any event, including without limitation any one or more of the
following events: (a) death, insolvency, bankruptcy, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of authority (whether
corporate, partnership or trust) of Obligor (or any person acting on Obligor's
behalf) or any Other Obligor or any other defense based on or arising out of the
lack of validity or unenforceability of the Indebtedness or any agreement or
instrument relating thereto or any provisions thereof and/or Obligor's absence
or cessation of liability thereunder for any reason, including without
limitation, Caterpillar Financial's failure to preserve any right or remedy
against Obligor; (b) any change in Obligor's financial condition; (c) partial
payment or payments of any amount due and/or outstanding under Obligor's
Indebtedness; (d) any change in Obligor's management, ownership, identity or
business or organizational structure; (e) any payment by Obligor or any other
party to Caterpillar Financial that is held to constitute a preferential
transfer or a fraudulent conveyance under any applicable law, or for any reason,
Caterpillar Financial is required to fund such payment or pay such amount to
Obligor or to any other person; (f) any sale, lease or transfer, whether or not
commercially reasonable, of all or any part of Obligor's assets and/or any
assignment, transfer or delegation of Obligor's Indebtedness to any third party
(whereby this Guaranty shall continue to extend to all sums due from or for the
account of Obligor and/or the new or substituted legal entity); (g) any failure
to perfect any lien or security interest securing the Indebtedness or preserve
any right, priority or remedy against any Equipment; (h) any interruption,
change or cessation of relations between Guarantor and Obligor; (i) any defect
in, damage to, destruction of or loss of or interference with possession or use
of any Equipment of any reason by Obligor or any other person; (j) any act or
omission by Caterpillar Financial which increases the scope of Guarantor's risk,
including without limitation, negligent administration of transactions with
Obligor; and/or (k) any other occurrence or circumstance whatsoever, whether
similar or dissimilar to the foregoing, which might otherwise constitute a legal
or equitable discharge, release or defense of a guarantor or surety or which
might otherwise limit recourse against Guarantor.
SECTION 7. Waivers by Guarantor. Guarantor waives, for the benefit of
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Caterpillar Financial (which waivers shall survive until this Guaranty is
released or terminated in writing by Caterpillar Financial): (a) notice of
acceptance of this Guaranty; (b) notice of the existence, creation or incurrence
of new and/or additional debt owing from Obligor to Caterpillar Financial; (c)
presentment, protest and demand, and notice of protest, demand, nonpayment,
nonperformance and dishonor or any and all agreements, notes or other
obligations signed, accepted, endorsed or assigned to or by Caterpillar
Financial or agreed to between Obligor and Caterpillar Financial; (d) notice of
adverse change in Obligor's financial condition or any other fact which might
materially increase the risk of Guarantor; (e) any and all rights in and notices
or demands relating to any Equipment, including without limitation, all rights,
notices, advertisements or demands relating, whether directly or indirectly, to
the foreclosure, sale or other disposition of any or all such Equipment or the
manner of such sale or other disposition; (f) any claim, right or remedy which
Guarantor may now have or hereafter acquire against the Obligor that arises
hereunder and/or from the performance by any Other Obligor including, without
limitation, any claim, remedy or right of subrogation, reimbursement,
exoneration, contribution, indemnification, or participation in any claim, right
or remedy of Caterpillar Financial against the Obligor or any security which
caterpillar Financial now has or hereafter acquires with respect to the Obligor,
whether or not such claim, right or remedy arises in equity, under contract
(express or implied), by statute, under common law or otherwise; (g) notice of
any default by Obligor or any other person obligated in any manner for all or
any portion of Obligor's Indebtedness and notice of any legal proceedings
against such parties; (h) any right of contribution from any Other Obligors; (i)
notice and hearing as to any prejudgment remedies; (j) any defense which is
premised on an alleged lack of consideration for the obligation undertaken by
Guarantor, including without limitation, any defense to the enforcement of this
Guaranty based upon the timing of execution of this Guaranty and/or that the
Guaranty had been executed after the execution date of any agreements evidencing
the Indebtedness; (k) all exemptions and homestead laws; (l) any other demands
and notices required by law; (m) all setoffs and counterclaims against
Caterpillar Financial and/or Obligor; (n) any defense based on the claim that
Guarantor's liabilities and obligations exceed or are more burdensome than those
of Obligor; (o) any defense which the Obligor may assert or be able to assert on
the underlying Indebtedness or which may be asserted by Guarantor, including but
not limited to (i) breach of warranty, (ii) fraud, (iii) statute of frauds, (iv)
infancy, (v) statute of limitations, (vi) lender liability (vii) accord and
satisfaction, (viii) payment and/or (ix) usury.
SECTION 8. Enforcement of Guarantor's Obligations and Liabilities. Guarantor
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agrees that, should Caterpillar Financial deem it necessary to file an
appropriate collection action to enforce Guarantor's obligations and liabilities
under this Guaranty, Caterpillar Financial may commence such a civil action
against Guarantor without the necessity of first (i) attempting to collect
Obligor's Indebtedness from Obligor or from any Other Obligor, whether through
filing of suit or otherwise, (ii) attempting to exercise any rights Caterpillar
Financial may have against any Equipment, whether through re-lease, the filing
of an appropriate foreclosure action or otherwise, (iii) including Obligor or
any Other Obligor as an additional party defendant in such a collection action
against Guarantor, or (iv) pursuing any other [illegible] in Caterpillar
Financial's power or to mitigate damages. If there is more than one guarantor
under this Guaranty, each Guarantor additionally agrees that Caterpillar
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Financial may file an appropriate collection and/or enforcement action against
any or one or more of them, without impairing the rights of Caterpillar
Financial against any other guarantor under this Guaranty.
SECTION 9. Construction. This writing is intended as a final expression of this
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Guaranty agreement and is a complete and exclusive statement of the terms of
that agreement, provided however, that the provisions of this Guaranty shall be
in addition to and cumulative of, and not in substitution, novation or discharge
of, any and all prior or contemporaneous written guaranties or other written
agreements by guarantor (or any one or more of them), in favor of Caterpillar
Financial or assigned to enforcing any and all such other guaranties or
agreements in accordance with their respective terms.
SECTION 10. Successors and Assigns Bound. Guarantor's obligations and
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liabilities under this Guaranty shall be binding upon Guarantor's successors,
heirs, leagalees, devisees, administrators, executors and assigns. Caterpillar
Financial may assign this Guaranty and any and all rights and interests included
herein in benefit of Caterpillar Fianancial's sole discretion without notice to
Guarantor and the rights and remedies granted to Caterpillar Financial under
this Guaranty shall also inure to the benefit of Caterpillar Financial's
successors and assigns, as well as to any and all subsequent holder or holders
of any of Obligor's Indebtedness subject to this Guaranty, without setoff,
counterclaim, reduction, recoupment, abatement, deduction or defense based on
any claim Guarantor may have against Caterpillar Financial, such successors and
assigns or subsequent holders of Obligor's Indebtedness. Guarantor shall not
assign this Guaranty without the prior written consent of Caterpillar Financial.
SECTION 11. Termination. This Guaranty is irrevocable and may be terminated only
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as to indebtedness created sixty (60) days after actual receipt by Caterpillar
Financial of written notice of termination hereof, provided however, that all
Indebtedness incurred, created or arising pursuant to a commitment of
Caterpillar Financial made prior to the effective date of such termination (the
"Termination Date") and any extensions, renewals or modifications of such
Indebtedness (including without limitation loan and/or other commitments) agreed
to or instituted by Caterpillar Financial prior to Termination Date shall not be
effected by such termination and shall be deemed to have been incurred prior to
termination (irrespective of whether Indebtedness arising thereunder occurs
after the Termination Date) and shall be fully covered by Guaranty. Any
termination of this Guaranty shall be ineffective unless upon the Termination
Date Guarantor deposits with Caterpillar Financial collateral in the form of
cash in an amount not less than the amount of the Indebtedness outstanding on
the Termination Date. Such cash shall be held by Caterpillar Financial in a
separate account and shall be returned to Guarantor upon the full and
indefeasible payment of all of the Indebtedness.
SECTION 12. Governing Law; Waiver of Jury. This Guaranty shall be construed
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liberally in favor of Caterpillar Financial and shall be governed and construed
in accordance with the substantive laws of the State of Tennessee without regard
to the conflicts of laws principles thereof. ANY ACTION, SUIT OR PROCEEDING
RELATING DIRECTLY OR INDIRECTLY TO THIS GUARANTY OR THE RELATIONSHIP BETWEEN
GUARANTOR AND CATERPILLAR FINANCIAL WILL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE WITHOUT A JURY. AS SUCH, GUARANTOR HEREBY WAIVES ANY
RIGHT TO TRIAL IN ANY SUCH ACTION, SUIT OR PROCEEDING. IN THE EVENT OF
LITIGATION, THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE
COURT.
SECTION 13. Severability. If any provision of this Guaranty is held to be
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illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable, this Guaranty shall be
construed and enforceable as if the illegal, invalid or unenforceable provision
had never compromised a part of it, and the remaining provisions of this
Guaranty shall remain in full force and effect not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty in favor of Caterpillar
Financial on the day, month and year first written above.
GUARANTOR HAS READ AND FULLY UNDERSTANDS ALL OF THE PROVISIONS OF THIS GUARANTY.
(Complete Address, Phone, SSN if
Guarantor is an Individual)
Guarantor: MEADOW VALLEY CORPORATION Address:
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Signature: /s/ XXXXXXX X. XXXXXX
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Name (Print): XXXXXXX X. XXXXXX Phone:
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Title: PRESIDENT/CEO SSN:
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