EXHIBIT 10.266
SECURITY AGREEMENT
[CITICAPITAL LOGO]
The undersigned debtor, meaning all debtors jointly and severally ("DEBTOR"), to
secure the obligations set forth herein grants to the secured party named below
(herein, with its successors and assigns, called "SECURED PARTY") under the
terms and provisions of this agreement (this "AGREEMENT") a security interest in
the following described property (herein, with all present and future
attachments, accessories, replacement parts, repairs and additions or
substitutions, referred to collectively as "EQUIPMENT"):
ONE (1) 1998 BOMAG SMOOTH DRUM ROLLER; S/N 101580290147
The Equipment will be used primarily for: [x] business or commercial use other
than farming operations; [ ] farming operations. When not in use, the Equipment
will be kept at: 0000 X. 00XX XXXXXX, XXX. X00 XXXXXXX XX 00000
and, when in use, will be used only in the following State(s): AZ, UT, NV
PAYMENT SCHEDULE USE OF PROCEEDS
Debtor promises to pay Secured Party the SECURED PARTY IS HEREBY IRREVOCABLY
Total Amount of $ 36,096.12 (the "Total AUTHORIZED AND DIRECTED TO DISBURSE
Amount") in 36 installments as follows: THE PROCEEDS OF THIS AGREEMENT AS
FOLLOWS:
(a)$ 1,002.67 on 05/08/2004 , and a Amount Payee (Name and Address)
like sum on the like date of each month $ 33,032.46 KOMATSU EQUIPMENT
thereafter until fully paid. 0000 XXXX XXXXXXXXXX
xx XXXX XXXX XXXX, XX 00000
________________________
(b) $ 0.00 ________________________
________________________
$ 0.00 ________________________
________________________
________________________
provided, however, that the final installment will be in the amount of the then
remaining unpaid balance. All amounts payable under this Agreement are payable
at Secured Party's address shown below or at such other address as Secured Party
may specify from time to time in writing. Any note taken in conjunction with
this Agreement evidences indebtedness and not payment.
Debtor hereby acknowledges and agrees that the proceeds of this Agreement will
be used for commercial, business or agricultural purposes and will not be used
for personal, family or household purposes. Secured Party may disburse the
proceeds using checks, drafts, orders, transfer funds, or any other method or
media Secured Party deems desirable. Disbursement may be made in Secured Party's
name on Debtor's behalf or in Debtor's name. Disbursement in accordance with the
above instructions or any written supplement to these instructions will
constitute payment and delivery to and receipt by Debtor of all such proceeds.
INSURANCE: PHYSICAL DAMAGE INSURANCE COVERING THE EQUIPMENT IS REQUIRED. DEBTOR
CAN FURNISH THIS INSURANCE THROUGH AN AGENT OR BROKER OF DEBTOR'S CHOICE. DEBTOR
HEREBY AUTHORIZES SECURED PARTY AND ANY ASSIGNEE TO RELEASE TO ANY INSURANCE
COMPANY AFFILIATED WITH SECURED PARTY OR ANY ASSIGNEE ANY INFORMATION RELATING
TO A CONTRACT OR POLICY OF INSURANCE WHICH IS PROVIDING OR MAY PROVIDE INSURANCE
COVERAGE AGAINST PHYSICAL DAMAGE TO THE EQUIPMENT.
TOTAL AMOUNT: The Total Amount consists of $ 33,032.46 of principal and
precomputed interest in the amount of $ 3,063.66 computed on the basis of 5.85%
per annum on the assumption that all payments will be made on their respective
due dates.
DELINQUENCY, RETURNED CHECKS AND ACCELERATION INTEREST: For each installment not
paid when due, Debtor agrees to pay to Secured Party a delinquency charge
calculated thereon at the rate of 1 1/2 % per month for the period of
delinquency or, at Secured Party's option, 5% of such installment, provided that
such a delinquency charge is not prohibited by law, otherwise at the highest
rate Debtor can legally obligate itself to pay and/or Secured Party can legally
collect. DEBTOR AGREES TO REIMBURSE SECURED PARTY IMMEDIATELY UPON DEMAND FOR
ANY AMOUNT CHARGED TO SECURED PARTY BY ANY DEPOSITARY INSTITUTION BECAUSE A
CHECK, DRAFT OR OTHER ORDER MADE OR DRAWN BY OR FOR THE BENEFIT OR DEBTOR IS
RETURNED UNPAID FOR ANY REASON AND, IF ALLOWED BY LAW, TO PAY SECURED PARTY AN
ADDITIONAL HANDLING CHARGE IN THE AMOUNT OF $ 25.00 OR IN THE EVENT APPLICABLE
LAW LIMITS OR RESTRICTS THE AMOUNT OF SUCH REIMBURSEMENT AND/OR HANDLING CHARGE,
THE AMOUNTS CHARGEABLE UNDER THIS PROVISION WILL BE LIMITED AND/OR RESTRICTED
IN ACCORDANCE WITH APPLICABLE LAW. Debtor agrees to pay Secured Party, upon
acceleration of Debtor's indebtedness, interest on all sums then owing hereunder
at the rate of 1 1/2 % per month if not prohibited by law, otherwise at the
highest rate Debtor can legally obligate itself to pay and/or Secured Party can
legally collect. Any note take herewith evidences indebtedness and not payment.
All amounts payable hereunder are payable at Secured Party's address shown below
or at such other address as Secured Party may specify from time to time in
writing.
SECURITY INTEREST: To secure payment of the Total Amount and all of Secured
Party's obligations under this Agreement or with respect to the Equipment,
Debtor hereby grants to Secured Party a first priority security interest in the
Equipment and in all cash and non-cash proceeds thereof (the Equipment and all
such proceeds are herein called the "COLLATERAL") regardless of any retaking
and/or redelivery of the Collateral to Debtor.
PREPAYMENT: Debtor may prepay Debtor's obligations under this Agreement in full
at any time. Upon prepayment Debtor will receive a rebate of the unearned
portion of the interest calculated using an actuarial method or such other
method as is required by any applicable law minus, if the prepayment is made
prior to the last twelve months of the contract, a prepayment processing fee
equal to the lesser of (a) one percent (1%) of the amount prepaid for each full
twelve month period remaining under the term of this Agreement as of prepayment
and (b) the maximum prepayment and/or acquisition charge allowed by applicable
law. All accrued and unpaid late charges and other amounts chargeable to Debtor
under this Agreement will be payable immediately upon such prepayment.
PAGE 1 OF 4 of Security Agreement Dated 04/09/2004 between MEADOW VALLEY
CONTRACTORS, INC. (Debtor) and CITICAPITAL COMMERCIAL CORPORATION (Secured
Party) which includes, without limitation, an item of Collateral with the
following serial number: 101580290147.
Debtor's Initials
[BEL]
A member of CITIGROUP
621700 REV. 12/01 ORIGINAL FOR CITICAPITAL
COMM'L NON-VEH. - VARIOUS STALES
(PRECOMPUTED-R.D.)
1.03
CITICAPITAL is a service xxxx of Citicorp. 1.124950.1.0
1. CROSS-SECURITY. Debtor grants to Secured Party, its affiliates (including,
without limitation, any direct or indirect parent, subsidiary or sister entity),
successors and assigns a security interest in the Collateral (separate and
distinct from and subordinate to the security interest granted to Secured Party
on the first page of this Agreement) to secure the payment and performance of
all debts and all liabilities of Debtor to Secured Party of every kind and
character, whether now existing or hereafter arising, and whether direct,
indirect, absolute, contingent, primary, secondary, or otherwise, or to any
affiliates (including, without limitation, any direct or indirect parent,
subsidiary or sister entity), successors or assignees of Secured Party, now
existing or hereafter arising, whether under this Agreement or any other
agreement, and whether due directly or by assignment. The security interest
granted herein shall continue to be effective regardless of any retaking or
redelivery of the Collateral to Debtor. Upon any assignment of this Agreement by
Secured Party, the assignee shall then be deemed the Secured Party for the
purposes of this paragraph.
2. ADDITIONAL WARRANTIES AND AGREEMENTS. Debtor warrants and agrees that: the
execution of and performance by Debtor under the terms of this Agreement has
been approved for Debtor by all necessary action and by Debtor's partners or
board of directors, as applicable; the Equipment is currently and will continue
be maintained in good operating condition, repair and appearance and is
currently and will continue be used and operated with care only by qualified
personnel in the regular course of Debtor's business and in conformity with all
applicable governmental laws and regulations, manufacturer's specifications and
the restrictions contained in any insurance policy insuring the Equipment; the
Equipment is not currently and will not be used in conjunction with the storage,
transportation or disposal of substances considered to be toxic and/or hazardous
or in conjunction with any activity or for any use that would subject the
Equipment to seizure or confiscation by any governmental body; and the Equipment
is currently located at and will be kept by Debtor at the location set forth for
it on the reverse side of this Agreement and will not be removed from said
location without the prior written consent of Secured Party, except that if the
Equipment is of a type which is mobile and normally used by Debtor at more than
one location, Debtor may use the Equipment away from said location in the
regular course of Debtor's business provided that (a) if the Equipment is not
returned to said location within 30 days, Debtor will immediately thereafter,
and each 30 days thereafter until the Equipment is returned, report the then
current location of the Equipment to Secured Party in writing and (b) the
Equipment shall not be removed from the State(s) of use indicated on the
reverse side of this Agreement. Secured Party shall have the right to inspect
the Equipment at all reasonable times and from time to time.
Debtor further warrants and agrees that: the security interest in the
Collateral granted to and/or retained by Secured Party is and will continue to
be superior to any title to or interest in the Equipment now or hereafter held
or claimed by any other party; the Collateral is free from and will be kept free
from all liens, claims, security interests and encumbrances (whether superior or
inferior to the interests of Secured Party) other than that created by this
Agreement; notwithstanding Secured Party's interest in proceeds, Debtor will not
and will not allow any other party to consign, sell, rent, lend, encumber,
pledge, transfer, secrete or otherwise dispose of any of the Collateral without
Secured Party's prior written consent; Debtor will do everything Secured Party
deems necessary or expedient to perfect or preserve the interests granted to
Secured Party under this Agreement and the first priority of such interests; any
Manufacturer's Statement or Certificate of Origin or Certificate of Title
relating to the Equipment shall be immediately delivered to Secured Party and,
if a Certificate of Title or registration is required for any item of Equipment,
Debtor will cooperate with Secured Party in obtaining the Certificate of Title
or registration disclosing the interests of Debtor and Secured Party in the
Equipment; Debtor will defend any action, proceeding or claim affecting the
Collateral or the interests of Secured Party in the Collateral; Debtor shall
promptly pay all amounts payable in conjunction with the storage, maintenance or
repair of the Equipment and all taxes, assessments, license fees and other
public or private charges levied or assessed in conjunction with the operation
or use of the Equipment or levied or assessed against the Collateral, this
Agreement or any accompanying note except for those which are being contested by
Debtor in good faith by appropriate proceedings and which do not constitute a
lien or encumbrance upon the Collateral; and Debtor will from time to time
furnish Secured Party with such financial statements and other information as
Secured Party may reasonably request.
3. INSURANCE AND RISK OF LOSS. Debtor shall at all times bear all risk of loss
of, damage to or destruction of the Equipment. Debtor agrees to immediately
procure and maintain insurance on the Equipment, for the full insurable value
thereof and for the life of this Agreement, in the form of "All Risk" or similar
insurance (insuring the Equipment for fire, extended coverage, vandalism, theft
and collision and containing only those exclusions from coverage which are
acceptable to Secured Party) plus such other insurance as Secured Party may
specify from time to time, all in form and amount and with insurers satisfactory
to Secured Party. Debtor agrees to deliver promptly to Secured Party
certificates or, if requested, policies of insurance satisfactory to Secured
Party, each with a standard long-form loss-payable endorsement naming Secured
Party or assigns as loss-payee and providing that Secured Party's rights under
such policy will not be invalidated by any act, omission or neglect of anyone
other than Secured Party and containing the insurer's agreement to give 30 days
prior written notice to Secured Party before any cancellation of or material
change in the policy(s) will be effective as to Secured Party, whether such
cancellation or change is at the direction of Debtor or insurer. Secured Party's
acceptance of policies in lesser amounts or risks will not be a waiver of
Debtor's obligation to procure insurance complying with the provisions hereof
promptly after notice from Secured Party. Debtor assigns to Secured Party all
proceeds of any physical damage or credit insurance for which a charge is stated
in this Agreement or which is maintained by Debtor in accordance herewith,
including returned and unearned premiums, up to the amount owing hereunder by
Debtor. Secured Party will not have the right to cancel any such insurance
without Debtor's consent prior to the occurrence of an event of default and the
repossession, loss or destruction of the Equipment. Debtor directs all insurers
to pay such proceeds solely to the order of Secured Party for application to
Debtor's indebtedness to Secured Party. Secured Party may, at its option, apply
any such proceeds received by Secured Party to the final maturing installments
due hereunder in the inverse order of their maturity.
4. PERFORMANCE BY SECURED PARTY. If Debtor fails to perform any of Debtor's
obligations pursuant to Paragraphs 1, 2, or 3 above, Secured Party may perform
the same for the account of Debtor. Any such action by Secured Party will be in
Secured Party's sole discretion and Secured Party will not be obligated in any
way to do so. Secured Party's performance on behalf of Debtor will not obligate
Secured Party to perform the same or any similar act in the future and will not
cure or waive Debtor's failure of performance as an event of default hereunder.
All sums advanced or costs and expenses incurred by Secured Party pursuant to
this Paragraph, including the reasonable fees of any attorney retained by
Secured Party, will be for the account of Debtor, will constitute indebtedness
secured by Secured Party's security interest in the Collateral, will bear
interest at the rate as specified on the reverse side of this Agreement in the
event of acceleration and, unless Secured Party, in Secured Party's sole
discretion agrees otherwise in writing, shall be immediately due and payable.
5. EVENTS OF DEFAULT. Time is of the essence. An event of default will occur if:
(a) Debtor fails to pay when due any amount owed by it to Secured Party or any
affiliate (including, without limitation, any direct or indirect parent,
subsidiary or sister entity), successor or assignee of Secured Party under this
Agreement or under the terms of any promissory note delivered in conjunction
with this Agreement or if Debtor fails to pay when due any amount owed by it to
Secured Party or any affiliate (including, without limitation, any direct or
indirect parent, subsidiary or sister entity), successor or assignee of Secured
Party under any other document, agreement or instrument; (b) Debtor fails to
perform in compliance with any of its agreements hereunder or any warranty made
by Debtor in this Agreement is or becomes incorrect, or if Debtor fails to
perform or observe any term or provision to be performed or observed by it under
any other document, instrument or agreement furnished by Debtor to Secured Party
or any affiliate (including, without limitation, any direct or indirect parent,
subsidiary or sister entity), successor or assignee of Secured Party or
otherwise acquired by Secured Party or any affiliate (including, without
limitation, any direct or indirect parent, subsidiary or sister entity),
successor or assignee of Secured Party; (c) any information, representation, or
warranty furnished by Debtor to Secured Party or to any affiliate of Secured
Party is inaccurate or incorrect in any material respect when furnished; (d)
Debtor becomes insolvent or ceases to do or is prohibited by any court order or
governmental action from conducting the business in which Debtor is principally
engaged on the date of this Agreement as a going concern; (e) any surety or
bonding company assumes any of Debtor's responsibilities under any contract or
job; (f) if any of the Equipment is lost, stolen, destroyed, abandoned, or
relocated, used or maintained in violation of the terms hereof or if Debtor
attempts to consign, sell, rent, lend or encumber any of the Equipment or allows
another to do so; (g) Debtor files a petition in bankruptcy, or for an
arrangement, reorganization, or similar relief, or makes an assignment for the
benefit of creditors, or applies for the appointment of a receiver or trustee
for a substantial part of its assets or for any of the Equipment, or attempts to
take advantage of any process or proceeding for the relief of debtors or if any
such action is taken against Debtor; (h) any other party attempts to attach,
repossess or execute upon any of the Collateral; (i) Debtor ceases to exist as a
legal entity or Debtor or any party in control of Debtor takes any action
looking to Debtor's dissolution as a legal entity; (j) there shall be a material
change in the management, ownership or control of Debtor; (k) Secured Party in
good faith believes that the prospect or payment or performance hereunder is
impaired; (l) if there shall occur an (i) appropriation, (ii) confiscation,
(iii) retention, or (iv) seizure of control, custody or possession of the
Collateral by any governmental authority including, without limitation, any
municipal, state, federal or other governmental entity or any governmental
agency or instrumentality (all such entities, agencies and instrumentalities
shall hereinafter be collectively referred to as "Governmental Authority"); (m)
if anyone in the control, custody or possession of the Collateral or the Debtor
is accused or alleged or charged (whether or not subsequently arraigned,
indicted or convicted) by any Governmental Authority to have used the Collateral
in connection with the commission of any crime (other than a misdemeanor moving
violation); (n) there shall be a material adverse charge in any of the: (i)
condition (financial or otherwise), business, performance, prospects, operations
or properties of the Debtor (ii) legality, validity or enforceability of this
Agreement, (iii) perfection or priority of the lien granted in favor of Secured
Party pursuant to this Agreement, (iv) ability of the Debtor to repay the
indebtedness or perform its obligations under this Agreement or (v) rights and
remedies of the Secured Party under the Agreement are impaired; (o) there shall
be a death of a majority owner of Debtor or a guarantor of the obligations of
Debtor under this Agreement; or (p) except for the security interest, lien or
reservation of title in favor of Secured Party or as otherwise granted herein,
there shall be any lien, claim or encumbrance on any of the Collateral securing
the indebtedness or obligation of Debtor to Secured Party. Secured Party's
inaction with respect to an event of default shall not be a waiver of such
default and Secured Party's waiver of any default shall not be a waiver of any
other default.
PAGE 2 OF 4 OF SECURITY AGREEMENT DATED 04/09/2004 between MEADOW VALLEY
CONTRACTORS, INC. (Debtor) and CITICAPITAL COMMERCIAL CORPORATION (Secured
Party) which includes, without limitation, an item of Collateral with the
following serial number: 101580290147
Debtor's Initials
[BEZ]
621700 REV. 12/01 ORIGINAL FOR CITICAPITAL
1.02 1.124950.1.0
6. REMEDIES UPON DEFAULT. Upon the occurrence of an event of default, and at any
time thereafter as long as the default continues. Secured Party may, at its
option, with or without notice to Debtor (i) declare this Agreement to be in
default (ii) declare the indebtedness hereunder to be immediately due and
payable, (iii) declare all other debts then owing by Debtor to Secured Party or
any affiliate (including, without limitation any direct or indirect parent,
subsidiary or sister entity), successor or assignee of Secured Party to
immediately due and payable, (iv) cancel any insurance and credit any refund to
the indebtedness, and (v) exercise all of the rights and remedies of a Secured
Party under the Uniform Commercial Code and any other applicable laws,
including, without limitation, the right to require Debtor to assemble the
Equipment and deliver it to Secured Party at a place to be designated by Secured
Party which is reasonably convenient to both parties, and to lawfully enter any
premises where the Collateral may be without judicial process and take
possession thereof. Acceleration of any or all indebtedness, if so elected by
Secured Party, shall be subject to all applicable laws including those
pertaining to refunds and rebates of unearned charges. Any property other than
the Collateral which is in or upon the Equipment at the time of repossession may
be taken and held without liability until its return is requested by Debtor. Any
sale or other disposition of any of the Equipment may be made at public or
private sale or through public auction at the option of Secured Party. Secured
Party may buy at any sale and become the owner of the Equipment. Unless
otherwise provided by law, any requirement of reasonable notice which Secured
Party may be obligated to give regarding the sale or other disposition of
Collateral will be met if such notice is given to Debtor at least ten days
before the time of sale or other disposition. Debtor agrees that Secured Party
may bring any legal proceedings it deems necessary to enforce the payment and
performance of Debtor's obligations hereunder in any court in the State shown in
Secured Party's address set forth herein, and service of process may be made
upon Debtor by mailing a copy of the summons to Debtor. All notices to Debtor
relating to this Agreement will be considered received when delivered in person
(including by facsimile transmission) or mailed to Debtor at the address of
Debtor contained in this Agreement or at any address later designated by Debtor
to Secured Party in writing. The filing by Secured Party of any action or
proceeding with respect to the Equipment or any of Debtor's obligations
hereunder shall not constitute an election by Secured Party of Secured Party's
remedies or a waiver of Secured Party's rights to take possession of the
Equipment as provided above. Expenses of retaking, holding, preparing for sale,
selling and the like shall include (a) the reasonable fees of any attorneys
retained by Secured Party, (b) any amounts advanced or expenses incurred by
Secured Party pursuant to Paragraph 4 hereof and (c) all other legal and other
expenses incurred by Secured Party. Debtor agrees that it is liable for and will
promptly pay any deficiency resulting from any disposition of Collateral after
default and all costs and expenses, including me reasonable fees of any
attorney, incurred by Secured Party in the collection of any such deficiency.
Secured Party may sell the Equipment without giving any warranties as to the
Equipment. Secured Party may disclaim any warranties of title, possession, quiet
enjoyment, or the like. This procedure will not be considered to adversely
affect the commercial reasonableness of any sale of the Equipment.
7. POWER OF ATTORNEY. DEBTOR HEREBY APPOINTS SECURED PARTY OR ANY OFFICER,
EMPLOYEE OR DESIGNEE OF SECURED PARTY, OR ANY ASSIGNEE OF SECURED PARTY (OR ANY
DESIGNEE OF SUCH ASSIGNEE) AS DEBTOR'S ATTORNEY-IN-FACT TO IN DEBTOR'S OR
SECURED PARTY'S NAME: (a) PREPARE. EXECUTE AND SUBMIT ANY NOTICE OR PROOF OF
LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSURANCE POLICY INSURING THE
COLLATERAL; (b) PREPARE, EXECUTE AND FILE ANY AGREEMENT DOCUMENT FINANCING
STATEMENT, INSTRUMENT (OR ANY OTHER WRITING OR RECORD) THAT, IN SECURED PARTY'S
OPINION IS NECESSARY TO PERFECT AND/OR GIVE PUBLIC NOTICE OF THE INTERESTS OF
SECURED PARTY IN ANY COLLATERAL THAT SECURES OR THAT MAY SECURE ANY OBLIGATIONS
OR INDEBTEDNESS OF DEBTOR TO SECURED PARTY; AND (c) ENDORSE DEBTOR'S NAME ON ANY
REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE COLLATERAL OR
THE PROCEEDS OF THE SALE, LEASE OR OTHER DISPOSITION OF THE COLLATERAL (WHETHER
OR NOT THE SAME IS A DEFAULT HEREUNDER). This power is coupled with an interest
and is irrevocable so long as indebtedness remains unpaid from Debtor to Secured
Party. Debtor agrees to execute and deliver to Secured Party, upon Secured
Party's request, such documents, writings, records and assurances as Secured
Party deems necessary or advisable for the confirmation or perfection of the
security interest in Collateral and Secured Party's rights hereunder, including
such documents, writings records and assurances as Secured Party may require for
filing or recording. Debtor authorizes Secured Party or any officer, employee or
designee of Secured Party or any assignee of Secured Party (or any designee of
such assignee) to file a financing statement describing the Collateral. Debtor
authorizes Secured Party or any officer, employee or designee of Secured Party
or any assignee of Secured Party (or any designee of such assignee) to file
financing statements covering assets of Debtor other than the Collateral
described herein.
8. ASSIGNMENT. Debtor shall not assign this Agreement without the prior written
consent of Secured Party. Secured Party or any assignee or successor of Secured
Party shall have the right to transfer, sell or assign all or any portion of
this Agreement or the indebtedness and/or obligations hereunder, without notice,
acknowledgement or consent from Debtor. Upon assignment, the term "Secured
Party" shall mean and refer to any assignee who is the holder of this Agreement.
The assignor will not be the assignee's agent for any purpose. Debtor waives and
will not assert against any assignee of Secured Party any claims, counterclaim,
claims in recoupment, abatement, reduction, defenses, or set-offs for breach of
warranty or for any other reason which Debtor could assert against Secured
Party, except defenses which cannot be waived under the Uniform Commercial Code.
Upon full payment of all obligations secured by this Agreement, the assignee may
deliver all original papers to the assignor for Debtor.
9. PRIVACY WAIVER. Secured Party may receive from and disclose to any
individual, corporation, business trust, association, company, partnership,
joint venture, or other entity (herein collectively, the "Entity"), including,
without limiting the generality of the foregoing, Secured Party's parent or any
affiliate or any subsidiary of Secured Party and any credit reporting agency or
other entity whether or not related to Secured Party for any purpose,
information about Debtor's accounts, credit application and credit experience
with Secured Party and Debtor authorizes any Entity to release to Secured Party
any information related to Debtor's accounts, credit experience and account
information regarding the Debtor. THIS SHALL BE CONTINUING AUTHORIZATION FOR ALL
PRESENT AND FUTURE DISCLOSURES OF DEBTOR'S ACCOUNT INFORMATION, CREDIT
APPLICATION AND CREDIT EXPERIENCE ON DEBTOR MADE BY SECURED PARTY, OR ANY ENTITY
REQUESTED TO RELEASE SUCH INFORMATION TO SECURED PARTY.
10. DEBIT TRANSACTIONS. Secured Party may but shall not be required to offer
Debtor the option of paying any of Debtor's obligations to Secured Party through
printed checks ("Debit Transactions") drawn pursuant to this authorization upon
Debtor's checking account, using Debtor's checking account number, bank routing
code and other information which Debtor provides to Secured Party prior to the
first Debit Transaction. Debtor authorizes Secured Party to initiate Debit
Transactions from Debtor's checking account in the amount necessary to pay the
installment payments, delinquency charges, or such other amounts as may now or
hereafter be due hereunder or under any other present or future agreement with
or which is held by Secured Party plus a fee of ten dollars ($10.00) for each
Debit Transaction initiated by Secured Party. In the event applicable law
prohibits or restricts the amount of such fee, the fee chargeable under this
provision shall be limited and/or restricted in accordance with applicable law.
Secured Party may from time to time increase or decrease the Debit Transaction
fee upon prior written notice addressed to Debtor's last known address as shown
on the records of Secured Party and such increase or decrease shall be effective
as stated in the written notice. Unless prohibited by applicable law, Debtor's
continued use of Debit Transactions after the effective date specified in such
notice shall conclusively establish Debtor's agreement to pay the new Debit
Transaction fee stated therein. Debtor authorizes Secured Party or any officer,
employee or designee of Secured Party to endorse Debtor's name as drawer on any
printed check drawn in accordance with this authorization. Until cancelled by
Debtor, this authorization shall be valid for all Debit Transactions Secured
Party initiates in payment of Debtor's obligations hereunder or under any other
present or future agreement with or which is held by Secured Party. This
authorization may be canceled at any time by Debtor giving at least three (3)
business days prior written notice to Debtor's bank and Secured Party. Payment
by Debit Transactions is not required by Secured Party nor is its use a factor
in the approval of credit.
11. MISCELLANEOUS. (A) All of Secured Party's rights hereunder are cumulative
and not alternative. (B) The inclusion of a trade name or division name in the
identification of Debtor hereunder does not limit Secured Party's rights, after
the occurrence of an event of default, to proceed against all of Debtor's
assets, including those held or used by Debtor individually or under another
trade or division name. (C) If permitted by law, Debtor agrees that a carbon,
photographic or other reproduction of this Agreement or of a financing statement
may be filed as a financing statement. (D) Secured Party may correct patent
errors herein and fill in blanks. (E) All of the terms and provisions hereof
will apply to and be binding upon Debtor, its heirs, personal representatives,
successors and assigns and shall inure to the benefit of Secured Party, its
successors and assigns. (F) DEBTOR AND SECURED PARTY HEREBY WAIVE ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE
TRANSACTION CONTEMPLATED HEREBY. (G) DEBTOR HEREBY EXPRESSLY WAIVES NOTICE OF
NONPAYMENT, PRESENTMENT, PROTEST, DISHONOR, DEFAULT, INTENT TO ACCELERATE THE
MATURITY HEREOF AND OF ACCELERATION OF THE MATURITY HEREOF. (H) If allowed by
law, "the reasonable fees of attorneys" retained by Secured Party shall include
the amount of any flat fee, retainer, contingent fee and/or the hourly charges
of any attorney retained by Secured Party in enforcing any of Secured Party's
rights hereunder in the prosecution or defense of any litigation related to
this Agreement or the transactions contemplated by this Agreement. (I) To the
extent allowed by law, Debtor hereby waives any exemptions or appraisals. (J) No
waiver or change in this Agreement or in any related note will be binding upon
Secured Party or Secured Party's assignee, unless such waiver or change is in
writing and signed by one of its officers and any such waiver or change shall
then be effective only upon the terms and to the extent provided in such
writing. (K) The acceptance by Secured Party of any remittance from a party
other than Debtor will in no way constitute Secured Party's consent to the
transfer of any of the Collateral to such party. (L) Any captions or headings
included in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning of any provision contained in this
Agreement. (M) Any provision contained herein which is contrary to, prohibited
by or invalid under applicable laws or regulations will be deemed inapplicable
and omitted herefrom, but shall not invalidate the remaining provisions hereof.
(N) The only copy of this Agreement which constitutes "chattel paper" is the
original executed copy designated as "Original for CitiCapital".
PAGE 3 OF 4 OF SECURITY AGREEMENT DATED 04/09/2004 between MEADOW VALLEY
CONTRACTORS, INC. (Debtor) and CITICAPITAL COMMERCIAL CORPORATION (Secured
Party) which includes, without limitation, an item of Collateral with the
following serial number: 101580290147
Debtor's Initials
[BEL]
621700 REV. 12/01 ORIGINAL FOR CITICAPITAL
1.02 1.124950.1.0
12. APPLICATION OF PAYMENTS. All payments made by Debtor to Secured Party with
reference to this Agreement shall be applied first to any indebtedness which is
not secured, then to delinquency charges, then to interest, then to insurance
payments, then to any other fees or other amounts payable hereunder other that
the indebtedness secured by a purchase money security interest in the
Collateral, until all of such indebtedness is paid in full and then to the
indebtedness secured by a purchase money security interest in the Collateral in
the order in which that indebtedness was incurred. This provision controls over
any conflicting provision or in a subsequent agreement to override this
provision.
13. LOCATION OF DEBTOR. (i) If Debtor is a corporation, limited liability
company, limited partnership or other registered organization, its state of
organization is in the state set forth immediately below its signature on the
last page of this Agreement; (ii) if Debtor is an individual, his/her principal
place of residence is at the address set forth immediately below his/her
signature on the last page of this Agreement; (iii) if Debtor is an
organization, its place of business or if it has more than one place of business
its chief executive office, is located at the address set forth immediately
below its signature on the last page of this Agreement. Debtor agrees that it
will not without prior written consent of Secured Party change its state of
organization if it is a corporation, limited liability company, limited
partnership or other registered organization or the location of its chief
executive office or its place of business if it is an organization. If Debtor is
an individual, Debtor must notify Secured Party in writing of a change in
his/her principal place of residence 30 days prior to such change.
14. PAYMENT PROCESSING. Debtor hereby agrees that any payments made by Debtor
hereunder by check and received by Secured Party at an address other than the
address specified on the related invoice may be replaced by Secured Party with a
substitute instrument of equal amount and presented to Debtor's financial
institution for payment from the account referenced on the check from Debtor. If
Debtor sends any payment hereunder by check to Secured Party at any address
other than the one specified on the related invoice, then Debtor shall be deemed
to have authorized Secured Party to substitute such check with an instrument of
equal amount and present the substitute instrument to Debtor's financial
institution for payment from the account referenced on Debtor's check. '
DELIVERY AND ACCEPTANCE OF EQUIPMENT
(Check Appropriate Box)
Debtor's obligations and liabilities to Secured Party are absolute and
unconditional under all circumstances and regardless of any failure of operation
or Debtor's loss of possession of any item of Equipment or the cessation or
interruption of Debtor's business for any reason whatsoever.
[ ] On ______________the EQUIPMENT BEING PURCHASED WITH THE PROCEEDS OF THIS
AGREEMENT WAS DELIVERED TO DEBTOR with all installation and other work
necessary for the proper use of the Equipment completed at a location
agreed upon by Debtor; the Equipment was inspected by Debtor and found to
be in satisfactory condition in all respects and delivery was
unconditionally accepted by Debtor.
[X] The EQUIPMENT BEING PURCHASED WITH THE PROCEEDS OF THIS AGREEMENT HAS NOT
YET BEEN DELIVERED TO OR ACCEPTED BY DEBTOR and, upon delivery, Debtor
agrees to execute such delivery and acceptance certificate as Secured
Party requires.
[ ] ALL OF THE EQUIPMENT WAS ACQUIRED BY DEBTOR PRIOR TO THE DATE HEREOF and
was previously delivered to and unconditionally accepted by Debtor.
ADDITIONAL TERMS AND ORAL AGREEMENTS: Debtor and Secured Party agree that this
is a four page agreement and each page hereof constitutes a part of this
agreement. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
Debtor's Social Security or Federal Taxpayer Identification Number is
00-000-0000 and Co-Debtor's is: _____________________
Dated 04/09/2004
Secured Party CitiCapital Commercial Corporation
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
By /s/ Xxxx X. Xxxxxxx
-------------------------------------
Title DSM
----------------------------------
(If corporation, authorized party must signed and show corporate title. If
partnership, a general partner must sign. If owner or partner, show which.)
00000 Xxxxxxx Xxx Xxx. 000
----------------------------------------
(Street Address)
Xxxxxx XX 00000
---------------------------------------
(City, State and Zip Code)
DEBTOR HEREBY ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS CONTRACT.
Debtor(s) Meadow Valley Contractors, Inc.
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
By /s/ Baradley X. Xxxxxx Title President
----------------------- ---------------------------
(If corporation or limited liability company, an authorized party must sign and
show her or his title. If limited partnership, a general partner must sign and
show that title. If sole proprietorship, then sole proprietor must sign and show
that title. If individual, then individual should sign and show title as
"Individually.")
By _________________________________ Title _____________________________________
(If co-buyer, co-partner or co-officer, sign here and show which)
State of Organization: NV
Principal Residence/Chief Executive Office/Place of Business:
0000 X. 00xx XXXXXX
--------------------------------------------------------------------------------
(Street Address)
XXXXXXX XX 00000
--------------------------------------------------------------------------------
(City, COUNTY, State, and Zip Code)
PAGE 4 of 4 of Security Agreement Dated 04/09/2004 between MEADOW VALLEY
CONTRACTORS, INC. (Debtor) and CITICAPITAL COMMERCIAL CORPORATION (Secured
Party) which includes, without limitation, an item of Collateral with the
following serial number: 101580290147
DEBTOR'S INITIALS
[BEL]
621700 Rev. 12/01 ORIGINAL FOR CITICAPITAL
1.02 1,124950.1.0
