EXHIBIT 10.265
DaimlerChrysler Services DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
Truck Finance DIRECT PURCHASE MONEY LOAN AND SECURITY AGREEMENT
DATE:04/01/2004 *101* * *
QUOTE NO. 60609
BORROWER: MEADOW VALLEY CORPORATION
-------------------------
(Print Full Name)
4411 SO. 40TH STREET STE D-11 PHOENIX AZ 85040
-----------------------------------------------------------------------
(Street No.) (City) (County) (State) (Zip)
CO-BORROWER: MEADOW VALLEY CONTRACTORS, INC
-----------------------------------------------------------------------
(Print Full Name)
4635 ANDREWS ST SUITE F NORTH LAS NV 89030
VEGAS
-----------------------------------------------------------------------
(Street No.) (City) (County) (State) (Zip)
DEALER: Desert Dodge Inc
-----------------------------------------------------------------------
(Print Full Name)
4701W Sahara Las Vegas NV 89102
-----------------------------------------------------------------------
(Street No.) (City) (County) (State) (Zip)
LENDER: DaimlerChrysler Services North America LLC, 1011 Warrenville Road,
Lisle, Illinois 60532.
I (meaning individually, collectively, and interchangeably, all Borrowers named
above, jointly and severally) have entered into a direct loan with Lender to
finance the purchase of the following described Equipment. I acknowledge to have
accepted delivery of the Equipment in good order without reservation of rights
and without implied warranty as to condition, merchantability, and suitability
for any purpose. I further acknowledge and certify that I have entered into this
loan with Lender, and I intend to use the purchased Equipment, primarily for
business or commercial purposes, and not for personal, family, household or
agricultural purposes.
DESCRIPTION OF EQUIPMENT: **** SEE ATTACHED ADDENDUM ****
NEW MAKE MODEL SERIAL NUMBER BODY TYPE MODEL CASH SALE
USED YEAR PRICE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TRADE-IN & DOWNPAYMENT
MAKE MODEL SERIAL NUMBER BODY TYPE MODEL YEAR ALLOWANCE
- --------------------------------------------------------------------------------
CHEVROLET TAHOE 1GNEK13TX1J162166 SUV 2001 $12,000.00
DODGE 2500 QUAD 1B7KF2362YJ175424 PICKUP 2000 $12,500.00
List Payoff to: GECFS APEX FLEET Payoff Amount $11,581.27
Net Trade-in Allowance $12,918.73
Cash Downpayment $ 0.00
TOTAL DOWNPAYMENT $12,918.73
TOTAL OF PAYMENTS CALCULATION
1. Total Cash Sale Price $ 145,098.00
2. Less Total Downpayment $ 12,918.73
3. Unpaid Balance of Cash Price (1-2) $ 132,179.27
ITEMIZED CHARGES
A. Physical Damage Insurance $ 0.00
B. Credit Life/Disability Insurance $ 0.00
C. Non-Trucking Liability Insurance $ 0.00
D. Guaranteed Auto Protection Insurance $ 0.00
E. Insurance Tax (if applicable)
F. Registration/License/Title Fees $ 113.00
G. Federal Excise Tax $ 0.00
H. Sales Tax $6,585.70
I. Documentation Fee $ 0.00
J. Origination Fee
K. Other (DRIVE AWAY PERMITS) $ 73.00
L. Other ( ) $ 0.00
M. Other ( ) $ 0.00
N. Business Service Fee ( ): $ 0.00
4. Total Itemized Charges (Sum of A through N) $ 6,771.70
5. Amount Financed (3+4) $ 138,950.97
6. Finance Charge $ 19,729.83
7. Total of Payments (5+6) $ 158,680.80
PAGE 2
DaimlerChrysler Services DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
Truck Finance DIRECT PURCHASE MONEY LOAN AND SECURITY AGREEMENT
TERMS AND CONDITIONS QUOTE NO. 60609
1. PROMISE TO PAY: I promise to pay to the order of Lender the Total of Payments
indicated above, which includes principal (Amount Financed) and precomputed
interest (Finance Charge).
2. PAYMENT SCHEDULE: My loan is payable in 60 installment payments of $2,644.68
each, commencing on 05/08/2004 and the 8th day of each successive month
thereafter, except as follows: N/A.
3. LATE PAYMENT: If I fail to make any payment within ten (10) days of the due
date, I agree to pay Lender a late payment fee in an amount equal to 5% of the
delinquent payment, or such lesser amount as may be limited by law.
4. RETURNED CHECK CHARGES: If I make any payment by Agreement, and my check is
returned unpaid for any reason, I agree to pay Lender a returned check charge in
the amount of $25.00, or such lesser amount as may be limited by law.
5. PREPAYMENT: I may prepay my Indebtedness under this Agreement, less any
required rebate of unearned interest, in full at any time. The rebate will be
based upon either simple interest or the Rule of 78's, whichever is more
favorable to me.
6. GRANT OF SECURITY INTEREST: In order to secure the prompt and punctual
payment and satisfaction of my Indebtedness (as defined herein), I am granting
Lender a security interest in the Equipment, and in all accessions, replacements
and additions to the Equipment, and in all leases of the Equipment, and in all
lease payments, rentals, and rights thereto, and in all proceeds derived from
the Equipment, including insurance proceeds and refunds of insurance premiums. I
also agree that collateral securing other loans, credit sales and leases that I
may have with Lender, whether now or in the future, additionally will secure my
Indebtedness under this Agreement. The Equipment, all leases of the Equipment,
all lease payments, rentals, and rights thereto, proceeds, and my additional
collateral securing other loans, credit sales, and leases with Lender, are
individually, collectively and interchangeably referred to under this Agreement
as my "Collateral." For purposes of this Agreement, the term "Indebtedness"
means: (1) my indebtedness under my loan and under this Agreement for payment of
principal, interest, late charges and returned check fees; (2) my indebtedness
under any other loans or obligations that I may now and in the future owe to
Lender; (3) all additional funds that Lender may advance on my behalf as
provided in this Agreement; and (4) Lender's costs and expenses incurred in
enforcing Lender's rights under this Agreement, and in protecting and preserving
the Collateral, including reimbursement of Lender's reasonable attorney's fees,
court costs, and collection expenses. I authorize Lender to perfect its security
interest in the Collateral by filing a copy of this Agreement, or a UCC
financing statement, and/or title documentation with the proper filing or title
office. I agree to reimburse Lender for all filing costs and perfection
expenses, as well as for all costs of amending, continuing and terminating such
filings.
7. COVENANTS: I agree: (1) not to sell, lease, transfer or assign the Collateral
without Lender's prior written consent; (2) not to allow any other security
interest or lien to be placed on or to attach to the Collateral; (3) not to make
any material changes or alterations to the Equipment without Lender's prior
written consent (including replacements, additions, accessories or
substitutions); (4) not to remove the Equipment from the state in which I reside
or have my principal offices, other than in the ordinary course of business, for
a period in excess of sixty (60) consecutive days, without first obtaining
Lender's prior written consent; (5) not to retitle the Equipment in another
state without first notifying Lender; and (6) if I am a business entity, not to
change my name or form or state of organization without first notifying Lender
at least thirty (30) days in advance of such change. I further agree: (a) that
anything that may be attached to the Equipment will become an accession to the
Equipment, and will become part of the Collateral; (b) to make all necessary
repairs to, and not to abandon the Equipment; (c) to abide by all laws and rules
and regulations with respect to the use and operation of the Equipment, and to
obtain all necessary permits and licenses is those jurisdictions where required;
(d)to pay all taxes and assessments levied against the Equipment and to furnish
Lender with proof of such payments; and (e) to permit Lender to inspect the
Equipment at reasonable times.
8. INSURANCE: So long as my Indebtedness remains unpaid and unsatisfied, I agree
to maintain insurance on the Equipment, at my expense, and with such coverages
and deductible limits as may be required by Lender, and with such financially
responsible insurance companies as may be acceptable to Lender. Such insurance
shall include: (a) collision coverage; and (b) either (1) comprehensive
coverage, or (2) fire, theft and combined additional coverages, on the
Equipment, with a deductible not to exceed $1,000, insuring against loss up to
the value of the Equipment at the time of loss. I agree to name Lender as a
non-contributory lender loss payee beneficiary and as an additional insured
under my insurance policy, which will require at least twenty (20) days advance
written notice to Lender before such insurance may lapse, or be reduced or
canceled or terminated for any reason. I agree to provide Lender with a copy of
my insurance policy along with evidence that I have paid the policy premiums and
all renewal premiums. I assign to Lender all proceeds from insurance policies
covering the Equipment, including, but not limited to, refunds of unearned
premiums of any credit life, credit disability, property or other insurance
financed by Lender under this Agreement, and direct the insurance companies to
pay such amounts directly to Lender. Lender may apply any such insurance
proceeds and returned premiums received to the unpaid balance of my then
Indebtedness. I instruct my insurance company to make such payments directly to
Lender. I also grant Lender an irrevocable power of attorney, coupled with an
interest, to endorse any draft or check received as proceeds of insurance, and
if I am then in default, to negotiate and settle any claims I may have with
respect to the Equipment. Should I fail to purchase and maintain insurance on
the Equipment, or should I fail to do whatever else is required of me under this
Agreement, then Lender shall have the right (at Lender's sole option, and
without any responsibility or liability to do so) to purchase insurance of such
type and coverages, and in such amounts as Lender deems acceptable, and to do
such other acts as Lender may deem, within its sole discretion, to be necessary
and proper. I agree to immediately reimburse Lender for all additional sums that
Lender may advance for such purposes, together with interest thereon at the rate
of 18% per annum, or such lesser rate as may be limited by law, from the date of
each advance until I repay Lender in full. I authorize Lender to release to
third parties any information necessary to facilitate insurance and tax
monitoring and insurance placement.
PAGE 3
DaimlerChrysler Services DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
Truck Finance DIRECT PURCHASE MONEY LOAN AND SECURITY AGREEMENT
9. DEFAULT AND ACCELERATION: Lender has the right at its sole option to insist
on immediate payment in full of all Indebtedness that I may owe to Lender, less
any required rebates of unearned interest, upon the occurrence of any one or
more of the following events: (1) if I fail to make any payment under this
Agreement when due; or (2) if I am in default under any other provision of this
Agreement; or (3) if I am in default under any other loan, extension of credit,
or obligation that I may then owe to Lender; or (4) if I should become
insolvent, or apply for bankruptcy or other relief from creditors; or (5) if any
of the Equipment is seized under process of law; or (6) if any guaranty of my
obligations under this Agreement is withdrawn or becomes unenforceable for any
reason; or (7) if Lender reasonably believes itself to be insecure in the
repayment of this Agreement. After default and acceleration, I agree to continue
to pay Lender interest on the then unpaid balance of my Indebtedness at the rate
of eighteen (18%) percent per annum, or such lesser rate as may be limited by
law.
10. DEFAULT REMEDIES: Should I default under this Agreement, and Lender elects
to accelerate payment of my Indebtedness, Lender may exercise all of the rights
and remedies available to secured creditors generally under the Uniform
Commercial Code in effect in the state where the Collateral is then located. I
agree to turn over and deliver the Collateral to Lender at my expense, at the
time and at the location Lender may demand of me. Alternatively, Lender may
enter any premises or other place where the Collateral may be located, and take
possession of the Collateral, and all other property then located on or in the
Collateral, provided that Lender is able to do so without breach of the peace.
Lender may then sell the Collateral without warranty at public or private sale,
and apply the sale proceeds to the satisfaction of my Indebtedness. Lender has
no obligation to clean-up, repair, or prepare the Collateral for sale. Any
requirement that Lender notify me of the sale or other disposition of the
Collateral will be satisfied if Lender sends me a written communication at least
ten (10) days in advance of the date on which a public sale is scheduled, or
within ten (10) days in advance of the time after which a private sale or other
disposition may take place.
11. WAIVERS: I and all Guarantors each waive presentment, notice, and demand for
payment, and agree that our liability under this Agreement shall be joint and
several with each other. We further agree that discharge or release of any
party, or Collateral, or any extension of time for payment, or any delay in
enforcing Lender's rights, will not cause Lender to lose any of its rights. I
EXPRESSLY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY DISPUTE REGARDING OR ARISING
OUT OF THIS AGREEMENT, THE SALE OF THE EQUIPMENT, OR MY RELATIONSHIP WITH LENDER
OR DEALER.
12. COLLECTION ATTORNEY'S FEES AND EXPENSES: If Lender has to sue me, or if
Lender refers my loan to an attorney for collection, I agree to pay Lender
reasonable attorney's fees. I further agree to reimburse Lender for its court
costs and collection expenses incurred in enforcing Lender's rights under this
Agreement.
13. SAVINGS CLAUSE: It is Lender's intent to fully comply with all laws and
regulations limiting imposition and collection of interest and other fees and
charges in connection with my loan. Should I be called upon, or should I ever
pay interest or other fees and charges to Lender in excess of the amount(s) and
rate(s) permitted, I agree that Lender may cure such violation by crediting any
excess amount that I have paid against my then outstanding Indebtedness under
this Agreement.
14. NO AGENCY RELATIONSHIP; NO RIGHT TO ASSERT CLAIMS AND DEFENSES: I fully
understand and unconditionally agree that neither Dealer, the Equipment
manufacturer and distributor, nor their employees, are Lender's partners,
agents, or representatives, and have no right to commit, bind or obligate Lender
in any way. My obligations to Lender under this Agreement are absolute and
unconditional, and I have no right to assert against Lender any claims or
defenses that I may have against the Dealer, the Equipment manufacturer,
distributor, or their employees.
15. REPRESENTATIONS AND WARRANTIES: I represent and warrant to Lender that: (1)
my correct legal name and state of residence or organization are listed on page
1 of this Agreement, and I am properly authorized, licensed and in good standing
to conduct business in each applicable jurisdiction; (2) none of the preprinted
provisions of this Agreement have been altered, modified, or stricken by me or
by anyone else; (3) I or my authorized representative properly executed this
Agreement in my name and my signature on this Agreement, or that of my
authorized representative, is genuine; (4) the amount of the cash downpayment
reflected in this Agreement was paid by me to the Dealer in cash prior to the
time this Agreement was signed; (5) any trade-in allowance, rebate or incentive
payment reflected in this Agreement is bona fide and was applied to the Cash
Sale Price of the Equipment; and (6) I have and intend to license, title, and
register the Equipment in the proper state or jurisdiction.
16. GOVERNING LAW: I agree that this Agreement shall become effective only when
it is received and accepted by Lender in the State of Illinois. I further agree
that this Agreement and my credit financing of the Equipment shall be governed
and construed under the laws of the State of Illinois irrespective of the
conflict of laws principles of that state.
17. MISCELLANEOUS: In this Agreement, the words "I", "me", "my", "we", "us" and
"our" individually, collectively and interchangeably mean each person or entity
signing this Agreement as a Borrower, Co-Borrower or Guarantor, their successors
and assigns, and all other persons that may be or become obligated under this
Agreement. "Lender" means DaimlerChrysier Services North America LLC, and its
successors, transferees and assigns. All schedules executed in connection with
this Agreement are part of this Agreement. This Agreement and any such schedules
constitute the entire agreement between the parties. No modification or
amendment of this Agreement shall be effective unless in writing signed by all
parties. All provisions of this Agreement that are prohibited by applicable law
shall be ineffective solely to the extent of such prohibition without
invalidating the other provisions of this Agreement. Any waiver of Lender's
rights and remedies under this Agreement shall be effective only if specifically
agreed by Lender in writing.
I (WE) ACKNOWLEDGE RECEIPT OF A COMPLETED COPY OF THE AGREEMENT, AND AGREE TO
ITS TERMS.
PAGE 4
DaimlerChrysler Services DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
Truck Finance DIRECT PURCHASE MONEY LOAN AND SECURITY AGREEMENT
BUYER : MEADOW VALLEY CORPORATION CO-BUYER: MEADOW VALLEY CONTRACTORS, INC.
BY (SIGNATURE) X: /s/ [ILLEGIBLE] BY (SIGNATURE) X: /s/ [ILLEGIBLE]
--------------- ----------------------
TITLE: V.P. TITLE: V.P.
QUOTE NO. 60609
GUARANTY
I (we) hereby, jointly, severally and unconditionally guarantee payment of all
Indebtedness under this Agreement, and all extensions, substitutions and
refinancings thereof, and agree to the Agreement's terms and conditions. I (we)
waive any rights that I (we) may have to require DCS to first exhaust its
remedies against the Buyer(s), the Collateral, or any other guarantor, before
collecting under this Guaranty.
GUARANTOR NAME: ____________________ GUARANTOR NAME: _____________________
GUARANTOR (SIGNATURE): X ___________ GUARANTOR (SIGNATURE) X: ____________
PAGE 5