EXHIBIT 10.106
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APPROVED BY:
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Officer Name Officer No. Dept./Branch Name
Hope Berman Levin 706564 COMMERCIAL BANKING CENTER
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Dept./Branch No. Account No. Commitment No. Note No. Class
01781 5905359723 34 42
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Loan $ Name
$2,000,000.00 MEADOW VALLEY CORPORATION, a Nevada corporation, MEADOW VALLEY CONTRACTORS, INC., a
Nevada corporation and READY-MIX, INC., a Nevada corporation
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Rate Interest From Renewal of Note
BANK ONE, ARIZONA, NA PRIME RATE PLUS .50% TO MOVE WITH
PRIME
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Collateral
S/A - A/R, INV., & RTP, DATED 8/8/96 & S/A - EQUIP., DATED 8/8/96
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Bank One, Arizona, NA
RESTATED REVOLVING LINE OF CREDIT NOTE
VARIABLE RATE
PHOENIX, Arizona September 15, 1999
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FOR VALUE RECEIVED, the undersigned ("Borrower"), promises to pay on or
before September 15, 2000 to BANK ONE, ARIZONA, NA, a national banking
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association, ("Bank"), or order, the aggregate principal amount outstanding on
Borrower's revolving line of credit as shown on Bank's records which shall at
all times be conclusive and govern, with interest payable MONTHLY on the unpaid
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balance outstanding from time to time at an annual rate equal to ONE HALF
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percent (0.50%) more than the rate of interest publicly announced by BANK ONE,
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ARIZONA, NA as its "prime rate", as such rate shall change from time to time
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during the term hereof. Interest is to be charged on a daily basis for the
actual number of days the principal is outstanding from the date of disbursement
to date of maturity. The rate of interest agreed to shall include the interest
rate as shown above, in accordance with the terms of this note, plus any
compensating balance requirement and any additional charges, costs and fees
incident to this loan to the extent they are deemed to be interest under
applicable Arizona law. It is expressly agreed by Borrower that the maximum
outstanding principal at any one time on this note shall not exceed the amount
of TWO MILLION AND 00/100 DOLLARS ($2,000,000.00), and the amount outstanding on
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this note at any specific time shall be the total amount advanced hereunder by
Bank less the amount of principal payments made hereon from time to time by
Borrower. All amounts payable hereunder shall be paid in lawful money of the
United States. Should the rate of interest as calculated under this note exceed
that allowed by law, the applicable rate of interest will be the maximum rate of
interest allowed by applicable law.
Principal and interest shall be payable at the Commercial Banking Center
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office of Bank One, Arizona, NA in Phoenix, Arizona, or at such other place as
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the holder hereof may designate. At Bank's option, any payments may be applied
first to accrued interest and then to principal. Interest on the Note is
computed by applying the ratio of the annual interest rate over a year of 360
days, multiplied by the outstanding principal balance, multiplied by the actual
number of days the principal balance is outstanding. If payment is 10 days or
more late, Borrower will be charged 5.0% of the regularly scheduled payment or
$25.00, whichever is greater, up to the maximum amount of $1500.00 per late
charge.
Upon default, including failure to pay upon final maturity, Bank, at its
option, may also, if permitted under applicable law, do one or both of the
following: (a) increase the applicable interest rate on this Note 3.00
percentage points, and (b) add any unpaid accrued interest to principal and such
sum will bear interest therefrom until paid at the rate provided in this Note
(including any increased rate). The interest rate will not exceed the maximum
rate permitted by applicable law.
This note shall become immediately due and payable at the option of the
holder hereof without presentment or demand or any notice to Borrower or any
other person obligated hereon, upon default in the payment of any of the
principal hereof or any interest thereon when due, or in payment under any other
agreement between Borrower and Bank, or if any event occurs or condition exists
which authorized the acceleration of the maturity hereof under any security
agreement, mortgage, deed of trust or other agreement made by Borrower in favor
of Bank. Failure to exercise this option shall not constitute a waiver of the
right to exercise the same in the event of any subsequent default.
In the event any holder hereof utilizes the services of an attorney in
attempting to collect the amounts due hereunder or to enforce the terms hereof
or of any agreements related to this indebtedness, or if any holder hereof
becomes party plaintiff or defendant in any legal proceeding in relation to the
property described in any instrument securing this note or for the recovery or
protection of the indebtedness evidenced hereby, Borrower, its successors and
assigns, shall repay to such holder hereof, on demand, all costs and expenses so
incurred, including reasonable attorneys' fees, including those costs, expenses
and attorneys' fees incurred after the filing by or against the Borrower of any
proceeding under any chapter of the Bankruptcy Act, or similar federal or state
statute, and whether incurred in connection with the involvement of any holder
hereof as creditor in such proceedings or otherwise.
This note is issued pursuant to that Revolving Line of Credit Loan
Agreement (Accounts Receivable and Inventory) of even date herewith ("Loan
Agreement") between Borrower and Bank. The capitalized terms used herein and not
otherwise defined shall have the same meanings set forth in the Loan Agreement.
Borrower and all sureties, guarantors and/or endorsers hereof (or of any
obligation hereunder) and accommodation parties hereon (all of which, including
Borrower, are severally each hereinafter called a "Surety") each; (a) agree that
the liability under this note of all parties hereto is joint and several; (b)
severally waive any homestead or exemption laws and right thereunder affecting
the full collection of this note; (c) severally waive any and all formalities in
connection with this note to the maximum extent allowed by law, including (but
not limited to) presentment, demand, diligence, presentment for payment, protest
and demand, and notice of extension, dishonor, protest, demand and nonpayment of
this note; and (d) consent that Bank may extend the time of payment or otherwise
modify the terms of
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payment of any part or the whole of the debt evidenced by this note, at the
request of any other person liable hereon, and such consent shall not alter nor
diminish the liability of any person hereon. Each Surety consents to and waives
notice of: (i) the granting of indulgences or extensions of time of payment,
(ii) the taking or releasing of security, and (iii) the addition or release of
persons who may be or become primarily or secondarily liable for the Loan or any
other indebtedness arising in connection with the Loan, or any part thereof,
and all in such manner and at such time as Bank may deem advisable.
In addition, each Surety waives and agrees not to assert: (a) any right to
require Bank to proceed against Borrower or any other Surety, to proceed against
or exhaust any security for the note, to pursue any other remedy available to
Bank, or to pursue any remedy in any particular order or manner; (b) the benefit
of any statute of limitations affecting its liability hereunder or the
enforcement hereof; (c) the benefits of any legal or equitable doctrine or
principle of marshalling; (d) notice of the existence, creation or incurring of
new or additional indebtedness of Borrower to Bank; (e) the benefits of any
statutory provision limiting the liability of a surety, including without
limitation the provisions of Section 12-1641, et seq., of the Arizona Revised
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Statutes; (f) any defense arising by reason of any disability or other defense
of Borrower or by reason of the cessation from any cause whatsoever (other than
payment in full) of the liability of Borrower for payment of this note; and (g)
the benefits of any statutory provision limiting the right of Bank to recover a
deficiency judgment, or to otherwise proceed against any person or entity
obligated for payment of this note, after any foreclosure or trustee's sale of
any security for this note, including without limitation the benefits, if any,
to a Surety of Arizona Revised Statutes Section 33-814. Until payment in full of
this note and Bank has no obligation to make further advances of the proceeds
hereof, no Surety shall have any right of subrogation and each hereby waives any
right to enforce any remedy which Bank now has, or may hereafter have, against
Borrower or any other Surety, and waives any benefit of, and any right to
participate in, any security now or hereafter held by Bank.
Borrower agrees that to the extent Borrower or any other Surety makes any
payment to Bank in connection with the indebtedness evidenced by this note, and
all or any part of such payment is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid by Bank or paid
over to a trustee, receiver or any other entity, whether under any bankruptcy
act or otherwise (any such payment is hereinafter referred to as a "Preferential
Payment"), then the indebtedness of Borrower under this note shall continue or
shall be reinstated, as the case may be, and, to the extent of such payment or
repayment by Bank, the indebtedness evidenced by this note or part thereof
intended to be satisfied by such Preferential Payment shall be revived and
continued in full force and effect as if said Preferential Payment had not been
made.
Without limiting the right of Bank to bring any action or proceeding
against Borrower or any other Surety or against any property of Borrower or any
other Surety (an "Action") arising out of or relating to this note or any
indebtedness evidenced hereby in the courts of other jurisdictions, Borrower and
each other Surety hereby irrevocably submit to the jurisdiction, process and
venue of any Arizona State or Federal court sitting in Phoenix, Arizona, and
hereby irrevocably agree that any Action may be heard and determined in such
Arizona State court or in such Federal court. Borrower and all other Sureties
each hereby irrevocably waives, to the fullest extent it may effectively do so,
the defenses of lack of jurisdiction over any person, inconvenient forum or
improper venue, to the maintenance of any Action in any jurisdiction.
This note shall be binding upon Borrower and their respective successors
and assigns and shall inure to the benefit of Bank, and any subsequent holders
of this note, and their successors and assigns.
This note shall be governed by and construed according to the laws of the
State of Arizona, without giving effect to conflict of laws principles.
Bank and Borrower will establish specific instructions and procedures by
which draws against said credit will be presented for disbursement, but nothing
contained herein shall create a duty on the part of Bank to make said
disbursement if Borrower is in default.
MEADOW VALLEY CORPORATION, a Nevada corporation, MEADOW VALLEY CONTRACTORS,
INC., a Nevada corporation and READY-MIX, INC., a Nevada corporation
4411 SOUTH 40TH STREET, STE. D11
PHOENIX, AZ 85040-2950
MEADOW VALLEY CORPORATION,
a Nevada corporation
By: /s/ Bradley E Larson
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Name: Bradley Larson
Title: President/CEO
MEADOW VALLEY CONTRACTORS, INC.,
a Nevada corporation
By: /s/ Bradley E Larson
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Name: Bradley Larson
Title: President/CEO
READY-MIX, INC.,
A Nevada corporation
By: /s/ Kenneth D Nelson
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Name: Kenneth Nelson
Title: VP/Treasurer
Borrower's Signature
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