EXHIBIT 10.122
Master Security Agreement
This Master Security Agreement provides a set of terms and conditions that
the parties hereto intend to be applicable to various loan transactions
secured by personal property. Each such loan and security agreement shall be
evidenced by a schedule of indebtedness and collateral ("Schedule") executed
by Secured Party and Debtor that explicitly incorporates the provisions of
this Master Security Agreement and that sets forth specific terms of that
particular loan and security contract. Where the provisions of a Schedule
conflict with the terms hereof, the provisions of the Schedule shall prevail.
Each Schedule shall constitute a complete and separate loan and security
agreement, independent of all other Schedules, and without any requirement of
being accompanied by an originally executed copy of this Master Security
Agreement. The term "Security Agreement" when used herein shall refer to an
individual Schedule.
One originally executed copy of the Schedule shall be denominated "Originally
Executed Copy No. 1 of 1 originally executed copies" and such copy shall be
retained by Secured Party. If more than one copy of the Schedule is executed
by Secured Party and Debtor, all such other copies shall be numbered
consecutively with numbers greater than 1. Only transfer of possession by
Secured Party of Originally Executed Copy No. 1 shall be effective for
purposes of perfecting an interest in such Schedule by possession.
1. Grant of Security Interest; Description of Collateral.
Debtor grants to Secured Party a security interest in the property described
in the Schedules now or hereafter executed by or pursuant to the authority of
the Debtor and accepted by Secured Party in writing, along with all present
and future attachments and accessories thereto and replacements and proceeds
thereof, including amounts payable under any insurance policy, all
hereinafter referred to collectively as "Collateral." Each Schedule shall be
serially numbered. Unless and only to the extent otherwise expressly provided
in a Schedule, no Schedule shall replace any previous Schedule but shall be
supplementary to all previous Schedules.
2. What Obligations the Collateral Secures.
Each item of Collateral shall secure not only the specific amount which
Debtor promises to pay in each Schedule, but also all other present and
future indebtedness or obligations of Debtor to Secured Party of every kind
and nature whatsoever.
3. Promise to Pay; Terms and Place of Payment.
Debtor promises to pay Secured Party the amounts set forth on each Schedule
at the rate and upon such terms as provided therein.
4. Use and Location of Collateral.
Debtor warrants and agrees that the Collateral is to be used primarily for:
[x] business or commercial purposes (other than agricultural),
[_] agricultural purposes (see definition on the final page), or
[_] both agricultural and business or commercial purposes.
Location: 4411 South 40th Street Phoenix Maricopa AZ 85040
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Address City County State Zip Code
Debtor and Secured Party agree that regardless of the manner of affixation,
the Collateral shall remain personal property and not become part of the real
estate. Debtor agrees to keep the Collateral at the location set forth above,
and will notify Secured Party promptly in writing of any change in the
location of the Collateral within such State, but will not remove the
collateral from such State without the prior written consent of Secured Party
(except that in the State of Pennsylvania, the Collateral will not be moved
from the above location without such prior written consent.
5. Late Charges and Other Fees.
Any payment not made when due shall, at the option of Secured Party, bear
late charges thereon calculated at the rate of 1 1/2% per month, but in no
event greater than the highest rate permitted by relevant law. Debtor shall
be responsible for and pay to Secured Party a returned check fee, not to
exceed the maximum permitted by law, which fee will be equal to the sum of
(i) the actual bank charges incurred by Secured Party plus (ii) all other
actual costs and expenses incurred by Secured Party. The returned check fee
is payable upon demand as indebtedness secured by the Collateral under this
Security Agreement.
6. Debtor's Warranties and Representations.
Debtor warrants and represents:
(a) that Debtor is justly indebted to Secured Party for the full amount of the
indebtedness set forth on each Schedule;
(b) that except for the security interest granted hereby, the Collateral is free
from and will be kept free from all liens, claims, security interests and
encumbrances;
(c) that no financing statement covering the Collateral or any proceeds thereof
is on file in favor of anyone other than Secured Party, but if such other
financing statement is on file, it will be terminated or subordinated;
(d) that all information supplied and statements made by Debtor in any
financial, credit or accounting statement or application for credit prior
to, contemporaneously with or subsequent to the execution of this Security
Agreement with respect to this transaction are and shall be true, correct,
valid and genuine; and
(e) that Debtor has full authority to enter into this agreement and in so doing
it is not violating its charter or by -laws, any law or regulation or
agreement with third parties, and it has taken all such action as may be
necessary or appropriate to make this Security Agreement binding upon it.
7. Debtor's Agreements.
Debtor agrees:
(a) to defend at Debtor's own cost any action, proceeding, or claim affecting
the Collateral;
(b) to pay reasonable attorneys' fees (at least 15% of the unpaid balance if not
prohibited by law) and other expenses incurred by Secured Party in enforcing
its rights against Debtor under this Security Agreement;
(c) to pay promptly all taxes, assessments, license fees and other public or
private charges when levied or assessed against the Collateral or this
Security Agreement, and this obligation shall survive the termination of
this Security Agreement;
(d) that if a certificate of title be required or permitted by law, Debtor shall
obtain such certificate with respect to the Collateral, showing the security
interest of Secured Party thereon and in any event do everything necessary
or expedient to preserve or perfect the security interest of Secured Party;
(e) that Debtor will not misuse, fail to keep in good repair, secrete or without
the prior written consent of Secured Party, sell, rent, lend, encumber or
transfer any of the Collateral notwithstanding Secured Party's right to
proceeds;
(f) that Secured Party may enter upon Debtor's premises or wherever the
Collateral may be located at any reasonable time to inspect the Collateral
and Debtor's books and records pertaining to the Collateral, and Debtor
shall assist Secured Party in making such inspection; and
(g) that the security interest granted by Debtor to Secured Party shall continue
effective irrespective of any retaking or redelivery of any Collateral and
irrespective of the payment of the amount described in any Schedule so long
as there are any obligations of any kind, including obligations under
guaranties or assignments, owed by Debtor to Secured Party, provided,
however, upon any assignment of this Security Agreement the Assignee shall
thereafter be deemed for the purpose of this Paragraph the Secured Party
under this Security Agreement.
8. Insurance and Risk of Loss.
All risk of loss, damage to or destruction of the Collateral shall at all times
be on Debtor. Debtor will procure forthwith and maintain at Debtor's expense
insurance against all risks of loss or physical damage to the Collateral for the
full insurable value thereof for the life of this Security Agreement plus breach
of warranty insurance and such other insurance thereon in amounts and against
such risks as Secured Party may specify, and shall promptly deliver each policy
to Secured Party with a standard long-form mortgagee endorsement attached
thereto showing loss payable to Secured Party; and providing Secured Party with
not less than 30 days written notice of cancellation; each such policy shall be
in form, terms and amount and with insurance carriers satisfactory to Secured
Party; Secured Party's acceptance of policies in lesser amounts or risks shall
not be a waiver of Debtor's foregoing obligations. As to Secured Party's
interest in such policy, no act or omission of Debtor or any of its officers,
agents, employees or representatives shall affect the obligations of the insurer
to pay the full amount of any loss.
Debtor hereby assigns to Secured Party any monies which may become payable under
any such policy of insurance and irrevocably constitutes and appoints Secured
Party as Debtor's attorney in fact (a) to hold each original insurance policy,
(b) to make, settle and adjust claims under each policy of insurance, (c) to
make claims for any monies which may become payable under such and other
insurance on the Collateral including returned or unearned premiums, and (d) to
endorse Debtor's name on any check, draft or other instrument received in
payment of claims or returned or unearned premiums under each policy and to
apply the funds to the payment of the indebtedness owing to Secured Party;
provided, however, Secured Party is under no obligation to do any of the
foregoing.
Should Debtor fail to furnish such insurance policy to Secured Party, or to
maintain such policy in full force, or to pay any premium in whole or in part
relating thereto, then Secured Party, without waiving or releasing any default
or obligation by Debtor, may (but shall be under no obligation to) obtain and
maintain insurance and pay the premium therefor on behalf of Debtor and charge
the premium to Debtor's indebtedness under this Security Agreement. The full
amount of any such premium paid by Secured Party shall be payable by Debtor upon
demand, and failure to pay same shall constitute an event of default under this
Security Agreement.
9. Events of Default; Acceleration.
A very important element of this Security Agreement is that Debtor make all its
payments promptly as agreed upon. It is essential that the Collateral remain in
good condition and adequate security for the indebtedness. The following are
events of default under this Security Agreement which will allow Secured Party
to take such action under this Paragraph and under Paragraph 10 as it deems
necessary:
(a) any of Debtor's obligations to Secured Party under any agreement with
Secured Party is not paid promptly when due;
(b) Debtor breaches any warranty or provision hereof, or of any note or of any
other instrument or agreement delivered by Debtor to Secured Party in
connection with this or any other transaction;
(c) Debtor dies, becomes insolvent or ceases to do business as a going concern;
(d) it is determined that Debtor has given Secured Party materially misleading
information regarding its financial condition;
(e) any of the Collateral is lost or destroyed;
(f) a complaint in bankruptcy or for arrangement or reorganization or for relief
under any insolvency law is filed by or against Debtor or Debtor admits its
inability to pay its debts as they mature;
(g) property of Debtor is attached or a receiver is appointed for Debtor;
(h) whenever Secured Party in good faith believes the prospect of payment or
performance is impaired or in good faith believes the Collateral is
insecure;
(i) any guarantor, surety or endorser for Debtor dies or defaults in any
obligation or liability to Secured Party or any guaranty obtained in
connection with this transaction is terminated or breached.
If Debtor shall be in default hereunder, the indebtedness described in each
Schedule and all other indebtedness then owing by Debtor to Secured Party under
this or any other present or future agreement (collectively, the "Indebtedness")
shall, if Secured Party shall so elect, become immediately due and payable.
After acceleration:
(a) the unpaid principal balance of the indebtedness described in any Schedule
in which interest has been precomputed shall bear interest at the rate of
18% per annum (or, if less, the maximum rate permitted by law) until paid in
full; and
(b) the unpaid principal balance of the indebtedness described in any Schedule
in which interest has not been precomputed shall bear interest at the same
rate as before acceleration until paid in full.
In no event shall the Debtor upon demand by Secured Party for payment of the
Indebtedness, by acceleration of the maturity thereof or otherwise, be obligated
to pay any interest in excess of the amount permitted by law. Any acceleration
of the indebtedness, if elected by Secured Party, shall be subject to all
applicable laws, including laws relating to rebates and refunds of unearned
charges.
10. Secured Party's Remedies After Default; Consent to Enter Premises.
Upon Debtor's default and at any time thereafter, Secured Party shall have all
the rights and remedies of a secured party under the Uniform Commercial Code and
any other applicable laws, including the right to any deficiency remaining after
disposition of the Collateral for which Debtor hereby agrees to remain fully
liable. Debtor agrees that Secured Party, by itself or its agent, may without
notice to any person and without judicial process of any kind, enter into any
premises or upon any land owned, leased or otherwise under the real or apparent
control of Debtor or any agent of Debtor where the Collateral may be or where
Secured Party believes the Collateral may be, and disassemble, render unusable
and/or repossess all or any item of the Collateral, disconnecting and separating
all Collateral from any other property and using all force necessary. Debtor
expressly waives all further rights to possession of the Collateral after
default and all claims for injuries suffered through or loss caused by such
entering and/or repossession. Secured Party may require Debtor to assemble the
Collateral and return it to Secured Party at a place to be designated by Secured
Party which is reasonably convenient to both parties.
Secured Party may sell or lease the Collateral at a time and location of its
choosing provided that the Secured Party acts in good faith and in a
commercially reasonable manner. Secured Party will give Debtor reasonable notice
of the time and place or any public sale of the Collateral or of the time after
which any private sale or any other intended disposition of the Collateral is to
be made. Unless otherwise provided by law, the requirement of reasonable notice
shall be met if such notice is mailed, postage prepaid, to the address of Debtor
shown herein at least ten days before the time of the sale or disposition.
Expenses of retaking, holding, preparing for sale, selling and the like shall
include reasonable attorneys' fees (at least 15% of the outstanding principal
balance if not prohibited by law) and other legal expenses. Debtor understands
that Secured Party's rights are cumulative and not alternative.
11. Waiver of Defaults; Agreement Inclusive.
Secured Party may in its sole discretion waive a default, or cure, at Debtor's
expense, a default. Any such waiver in a particular instance or of a particular
default shall not be a waiver of other defaults or the same kind of default at
another time. No modification or change in this Security Agreement or any
related note, instrument or agreement shall bind Secured Party unless in writing
signed by Secured Party. No oral agreement shall be binding.
12. Financing Statements; Certain Expenses.
If permitted by law Debtor authorizes Secured Party to file a financing
statement with respect to the Collateral signed only by Secured Party, and to
file a carbon, photograph or other reproduction of this Security Agreement or of
a financing statement. At the request of Secured Party, Debtor will execute any
financing statements, agreements or documents, in form satisfactory to Secured
Party which Secured Party may deem necessary or advisable to establish and
maintain a perfected security interest in the Collateral and will pay the cost
of filing or recording the same in all public offices deemed necessary or
advisable by Secured Party. Debtor also agrees to pay all costs and expenses
incurred by Secured Party in conducting UCC, tax or other lien searches against
the Debtor or the Collateral and such other fees as may be agreed.
13. Waiver of Defenses Acknowledgment.
If Secured Party assigns this Security Agreement to a third party ("Assignee"),
then after such assignment:
(a) Debtor will make all payments directly to such Assignee at such place as
Assignee may from time to time designate in writing;
(b) Debtor agrees that it will settle all claims, defenses, setoffs and
counterclaims it may have against Secured Party directly with Secured Party
and will not set up any such claim, defense, setoff or counterclaim against
Assignee, Secured Party hereby agreeing to remain responsible therefor;
(c) Secured Party shall not be Assignee's agent for any purpose and shall have
no authority to change or modify this Security Agreement or any related
document or instrument; and
(d) Assignee shall have all of the rights and remedies of Secured Party
hereunder but none of Secured Party's obligations.
14. Miscellaneous.
Debtor waives all exemptions. Secured Party may correct patent errors herein and
fill in such blanks as serial numbers, date of first payment and the like. Any
provisions hereof contrary to, prohibited by or invalid under applicable laws or
regulations shall be inapplicable and deemed omitted herefrom, but shall not
invalidate the remaining provisions hereof.
Debtor and Secured Party each hereby waive any right to a trial by jury in any
action or proceeding with respect to, in connection with, or arising out of this
Security Agreement, or any note or document delivered pursuant to this Security
Agreement. Except as otherwise provided herein or by applicable law, the Debtor
shall have no right to prepay the indebtedness described in any Schedule. Debtor
acknowledges receipt of a true copy and waives acceptance hereof.
If Debtor is a corporation, this Security Agreement is executed pursuant to
authority of its Board of Directors. Except where the context otherwise
requires, "Debtor" and "Secured Party" include the heirs, executors or
administrators, successors or assigns of those parties; nothing herein shall
authorize Debtor to assign this Security Agreement or its rights in and to the
Collateral. If more than one Debtor executes this Security Agreement, their
obligations under this Security Agreement shall be joint and several.
If at any time this transaction would be usurious under applicable law, then
regardless of any provision contained in this Security Agreement or in any other
agreement made in connection with this transaction, it is agreed that:
(a) the total of all consideration which constitutes interest under applicable
law that is contracted for, charged or received upon this Security
Agreement or any such other agreement shall under no circumstances exceed
the maximum rate of interest authorized by applicable law and any excess
shall be credited to the Debtor; and
(b) If Secured Party elects to accelerate the maturity of, or if Secured Party
permits Debtor to prepay the indebtedness described in Paragraph 3, any
amounts which because of such action would constitute interest may never
include more than the maximum rate of interest authorized by applicable law
and any excess interest, if any, provided for in this Security Agreement or
otherwise, shall be credited to Debtor automatically as of the date of
acceleration or prepayment.
15. Special Provisions.
See Special Provisions Instructions.
Dated: 4-5-2000
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Debtor.
Meadow Valley Contractors, Inc.
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Name of individual, corporation or partnership
By /s/ Kenneth D. Nelson Title Vice President
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If corporation, have signed by President, Vice President or Treasurer, and give
official title. If owner or partner, state which.
4411 South 40th Street
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Address
Phoenix AZ 85040
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CitY State Zip Code
Secured Party:
The CIT Group/Eguipment Financing, Inc.
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Name of individual, corporation or partnership
By /s/ Kathy Taylor Title Agent
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If corporation, give official title. If owner or partner, state which.
P.O. Box 27248
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Address
Tempe AZ 85285-7248
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City State Zip Code