EXHIBIT 10.268
SECURITY AGREEMENT
[WELLS FARGO LOGO] WELLS FARGO EQUIPMENT FINANCE, INC.
733 Marquette Avenue, Suite 700
MAC N9306-070
Minneapolis, MN 55402
Dated as of May 4, 2004
Contract Number 102541-700
Name and Address of Debtor:
MEADOW VALLEY CONTRACTORS, INC.
4411 SOUTH 40TH STREET
PHOENIX, AZ 85040
1. SECURITY INTEREST AND COLLATERAL. TO SECURE THE PAYMENT AND PERFORMANCE OF
EACH AND EVERY DEBT, LIABILITY AND OBLIGATION OF EVERY TYPE AND
DESCRIPTION WHICH Debtor may now or at any time hereafter owe to Wells
Fargo Equipment Finance, Inc. ("Secured Party") (whether such debt,
liability or obligation now exists or is hereafter created or incurred,
whether it is currently contemplated by the Debtor and Secured Party,
whether any documents evidencing it refer to the Security Agreement, and
whether it is or may be direct or indirect, due or to become due, absolute
or contingent, primary or secondary, liquidated or unliquidated, or joint,
several or joint and several; all such debts, liabilities and obligations
being herein collectively referred to as the "Obligations"), Debtor hereby
grants Secured Party a security interest (herein called the "Security
Interest") in the following property (herein called the "Collateral"):
TWO (2) NEW 2004 INGERSOLL-RAND MODEL VR1044C REACH FORKLITTS,
SERIAL NUMBERS: 177011, 177012 INCLUDING ALL ATTACHMENTS AND ACCESSORIES.
together with all substitutions and replacements for and products of the
Collateral, all proceeds, accessories, attachments, parts, equipment and
repairs now or hereafter attached or affixed to or used in connection with
the Collateral.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Debtor represents, warrants
and agrees that:
(a) AUTHORIZATION. If Debtor is a corporation, a partnership or a
limited liability company, the execution, delivery and performance
of this Agreement has been duly authorized by all necessary action
on the part of the Debtor and will not violate any provision of the
Debtor's articles of incorporation or bylaws, partnership agreement
or articles of organization or management agreement, as the case may
be.
(b) OFFICE LOCATION. Debtor's chief executive office (if Debtor is a
corporation, a partnership or a limited liability company) is
located at the address for Debtor shown above. Debtor will not
change the location of its chief executive office or his/her
residence, as the case may be, without first giving Secured Party at
least 10 days prior written notice of the new location.
(c) BUSINESS PURPOSE; LAWFUL USE. The Equipment will be used primarily
for business purposes as opposed to personal, family or household
purposes. Debtor will comply with all laws and regulations
applicable to the Equipment and its use.
3. ADDITIONAL REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Debtor represents,
warrants and agrees that:
(a) Debtor has (or will have at the time Debtor acquires rights in
Collateral hereafter arising) absolute title to each item of
Collateral free and clear of all security interests, liens and
encumbrances, except the Security Interest and will defend the
Collateral against all claims or demands of all persons other than
Secured Party. Debtor will not sell or otherwise dispose of the
Collateral or any interest therein without the prior written consent
of Secured Party. If Debtor is a corporation, this Agreement has
been duly and validly authorized by all necessary corporate action,
and, if Debtor is a partnership or a limited liability company, the
partner(s) or manager(s) executing this Agreement has (have)
authority to act for the partnership or the limited liability
company.
(b) Debtor will not permit any Collateral to be located in any state
(and, if county filing is required, in any county) in which the
financing statement covering such Collateral is required to be, but
has not in fact been, filed in order to perfect the Security
Interest.
(c) Debtor will (i) keep all Collateral in good repair, working order
and condition, normal depreciation excepted, and will, from time to
time, replace any worn, broken or defective parts thereof; (ii)
promptly pay all taxes and other governmental charges levied or
assessed upon or against any Collateral or upon or against the
creation, perfection or continuance of the Security Interest; (iii)
keep all Collateral free and clear of all security interests, liens
and encumbrances except the Security Interest; (iv) at all
reasonable times, permit Secured Party or its representatives to
examine or inspect any Collateral, wherever located, and to examine,
inspect and copy Debtor's books and records pertaining to the
Collateral and its business and financial condition; (v) keep
accurate and complete records pertaining to Debtor's business and
financial condition and submit to Secured Party such periodic
reports concerning Debtor's business and financial condition as
Secured Party may from time to time reasonably request; (vi)
promptly notify Secured Party of any loss of or material damage to
any Collateral; (vii) at all times keep all Collateral insured
against risks of fire (including so-called extended coverage),
theft, collision (in case of Collateral consisting of motor
vehicles) and such other risks and in such amounts as Secured Party
may reasonably request, with any loss payable to Secured Party to
the extent of its interest, (viii) from time to time execute such
financing statements as Secured Party may reasonably require in
order to perfect the Security Interest and, if any Collateral
consists of a motor vehicle, execute such documents as may be
required to have the Security Interest properly noted on a
certificate of title; (ix) pay when due or reimburse Secured Party
on demand for all costs of collection of any of the Obligations and
all other out-of-pocket expenses (including in each case all
reasonable attorneys' fees) incurred by Secured Party in connection
with the creation, perfection, satisfaction, protection, defense or
enforcement of the Security Interest or the creation, continuance,
protection, defense or enforcement of this Agreement or any or all
of the Obligations, including expenses incurred in any litigation or
bankruptcy or insolvency proceedings; (x) execute, deliver or
endorse any and all instruments, documents, assignments, security
agreements and other agreements and writings which Secured Party may
at any time reasonably request in order to secure, protect, perfect
or enforce the Security Interest and Secured Party's rights under
this Agreement; (xi) not use or keep any Collateral, or permit it to
be used or kept, for any unlawful purpose or in violation of any
federal, state or local law, statute or ordinance; and (xii) not
permit any Collateral to become part of or to be affixed to any real
property without first assuring to the reasonable satisfaction of
Secured Party that the Security Interest will be prior and senior to
any interest or lien then held or thereafter acquired by any
mortgagee of such real property or the owner or purchaser of any
interest therein. If Debtor at any time fails to perform or observe
any agreement contained in this Section 3(c), and if such failure
shall continue for a period of ten calendar days after Secured Party
gives Debtor written notice thereof (or, in the case of the
agreements contained in clauses (vii) and {viii) of this Section
3(c), immediately upon the occurrence of such failure, without
notice or lapse of time), Secured Party may (but need not) perform
or observe such agreement on behalf and in the name, place and stead
of Debtor (or, at Secured Party's option, in Secured Party's own
name) and may (but need not) take any and all other actions which
Secured Party may reasonably deem necessary to cure or correct such
failure (including, without limitation, the payment of taxes, the
satisfaction of security interests, liens, or
THIS AGREEMENT INCLUDES THE TERMS ON THE ATTACHED PAGE(S).
Meadow Valley Contractors, Inc.
Debtor
By /s/ Clinton Tryon
-----------------------------
Title [ILLEGIBLE]
encumbrances, the procurement and maintenance of insurance, the
execution of financing statements, the endorsement of instruments,
and the procurement of repairs, transportation or insurance); and,
except to the extent that the effect of such payment would be to
render any loan or forbearance of money usurious or otherwise
illegal under any applicable law Debtor shall thereupon pay Secured
Party on demand the amount of all moneys expended and all costs and
expenses (including reasonable attorneys' fees) incurred by Secured
Party in connection with or as a result of Secured Party's
performing or observing such agreement or taking such actions,
together with interest thereon from the date expended or incurred by
Secured Party at the highest rate then applicable to any of the
Obligations. To facilitate the performance or observance by Secured
Party of such agreements of Debtor, Debtor hereby irrevocably
appoints (which appointment is coupled with an interest) Secured
Party, or its delegate, as the attorney-in-fact of Debtor with the
right (but not the duty) from time to time to create, prepare,
complete, execute, deliver, endorse or file, in the name and on
behalf of Debtor, any and all instruments, documents, financing
statements, applications for insurance and other agreements and
writings required to be obtained, executed, delivered or endorsed by
Debtor under this Section 3.
4. ASSIGNMENT OF INSURANCE. Debtor hereby assigns to Secured Party, as
additional security for the payment of the Obligations, any and all moneys
(including but not limited to proceeds of insurance and refunds of
unearned premiums) due or to become due under, and all other rights of
Debtor under or with respect to, any and all policies of insurance
covering the Collateral, and Debtor hereby directs the issuer of any such
policy to pay any such moneys directly to Secured Party. Both before and
after the occurrence of an Event of default. Secured Party may (but need
not), in its own name or in Debtor's name, execute and deliver proofs of
claim, receive all such moneys, endorse checks and other instruments
representing payment of such moneys, and adjust, litigate, compromise or
release any claim against the issuer of any such policy.
5. EVENTS OF DEFAULT. Each of the following occurrences shall constitute an
event of default under this Agreement (herein called "Event of Default").
(i) Debtor shall fail to pay any or all of the Obligations when due or (if
payable on demand) on demand, or shall fail to observe or perform any
covenant or agreement herein binding on it; (ii) any representation or
warranty by Debtor set forth in the Agreement or made to Secured Party in
any financial statements or reports submitted to Secured Party by or on
behalf of Debtor shall prove materially false or misleading; (iii) a
garnishment, summons or a writ of attachment shall be issued against or
served upon the Secured Party for the attachment of any property of Debtor
or any indebtedness owing to Debtor; (iv) Debtor or any guarantor of any
Obligation shall (A) be or become insolvent (however defined); or (B)
voluntarily file, or have filed against it involuntarily, a petition under
the United States Bankruptcy Code; or (C) if a corporation, partnership,
or organization, be dissolved or liquidated or, if a partnership, suffer
the death of a partner or, if an individual, die: or (D) go out of
business; (v) an event of default shall occur under any indebtedness
Debtor may now or hereafter owe to any affiliate of Secured Party; (vi) if
Debtor is a corporation, more than 50% of the shares of voting stock of
Debtor shall become owned by a shareholder or shareholders who were not
owners of voting stock of Debtor on the date of this Agreement or, if
Debtor is a partnership, more than 50% of the partnership interests in the
Debtor shall become owned by a partner or partners who were not partners
of Debtor on the date of this Agreement; or (vii) Debtor shall consolidate
with or merge into, or sell all or substantially all of its assets to, any
individual, corporation, or other entity.
6. REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Event of Default
under Section 5 and at any time thereafter, Secured Party may exercise any
one or more of the following rights and remedies: (i) declare all
unmatured Obligations to be immediately due and payable, and the same
shall thereupon be immediately due and payable, without presentment or
other notice or demand; (ii) exercise and enforce any or all rights and
remedies available upon default to a secured party under the Uniform
Commercial Code, including but not limited to the right to take possession
of any Collateral, proceeding without judicial process or by judicial
process (without a prior hearing or notice thereof, which Debtor hereby
expressly waives), and the right to sell, lease or otherwise dispose of
any or all of the Collateral, and in connection therewith, Secured Party
may require Debtor to make the Collateral available to Secured Party at a
place to be designated by Secured Party which is reasonably convenient to
both parties, and if notice to Debtor of any intended disposition of
Collateral or any other intended action is required by law in a particular
instance, such notice shall be deemed commercially reasonable if given (in
the manner specified in Section 7) at least 10 calendar days prior to the
date of intended disposition or other action; (iii) exercise or enforce
any or all other rights or remedies available to Secured Party by law or
agreement against the Collateral, against Debtor or against any other
person or property. Upon the occurrence of the Event of Default described
in Section 5(iv)(B), all Obligations shall be immediately due and payable
without demand or notice thereof.
7. MISCELLANEOUS. This Agreement can be waived, modified, amended, terminated
or discharged, and the Security Interest can be released, only explicitly
in a writing signed by Secured Party. A waiver signed by Secured Party
shall be effective only in the specific instance and for the specific
purpose given. Mere delay or failure to act shall not preclude the
exercise or enforcement of any of Secured Party's rights or remedies. All
rights and remedies of Secured Party shall be cumulative and may be
exercised singularly or concurrently, at Secured Party's option, and the
exercise or enforcement of any one such right or remedy shall neither be a
condition to nor bar the exercise or enforcement of any other. All notices
to be given to Debtor shall be deemed sufficiently given if delivered or
mailed by registered or certified mail, postage prepaid, to Debtor at its
address set forth above or at the most recent address shown on Secured
Party's records. Secured Party's duty of care with respect to Collateral
in its possession (as imposed by law) shall be deemed fulfilled if Secured
Party exercises reasonable care in physically safekeeping such Collateral
or, in the case of Collateral in the custody or possession of a bailee or
other third person, exercises reasonable care in the selection of the
bailee or other third person, and Secured Party need not otherwise
preserve, protect, insure or care for any Collateral. Secured Party shall
not be obligated to reserve any rights Debtor may have against prior
parties, to realize on the Collateral at all or in any particular manner
or order, or to apply any cash proceeds of Collateral in any particular
order of application. This Agreement shall be binding upon and inure to
the benefit of Debtor and Secured Party and their respective heirs,
representatives, successors and assigns and shall take effect when signed
by Debtor and delivered to Secured Party, and Debtor waves notice of
Secured Party's acceptance hereof. Secured Party may execute this
Agreement if appropriate for the purpose of filing, but the failure of
Secured Party to execute this Agreement shall not affect or impair the
validity or effectiveness of this Agreement. A carbon, photographic or
other reproduction of this Agreement or of any financing statement signed
by the Debtor shall have the same force and effects as the original for
all purposes of a financing statement. Except to the extent otherwise
required by law, this Agreement shall be governed by the internal laws of
the State of Minnesota. If any provision or application of this Agreement
is held unlawful or unenforceable in any respect, such illegality or
unenforceability shall not affect other provisions or applications which
can be given effect, and this Agreement shall be construed as if the
unlawful or unenforceable provision or application had never been
contained herein or prescribed hereby. All representations and warranties
contained in this Agreement shall survive the execution, delivery and
performance of this Agreement and the creation and payment of the
Obligations. If this Agreement is signed by more than one person as
Debtor, the term "Debtor" shall refer to each of them separately and to
both or all of them jointly; all such persons shall be bound both
severally and jointly with the other(s); and the Obligations shall include
all debts, liabilities and obligations owed to Secured Party by any Debtor
solely or by both or several or all Debtors jointly or jointly and
severally, and all property described in Section 1 shall be included as
part of the Collateral, whether it is owned jointly by both or all Debtors
or is owned in whole or in part by one (or more) of them. There shall
be(1) counterpart of this Agreement and it will be marked "Original." To
the extent that this Agreement constitutes chattel paper (as that term is
defined by the Uniform Commercial Code), a security interest only may be
created in the Agreement marked "Original." DEBTOR HEREBY WAIVES ANY RIGHT
TO A JURY TRIAL WITH RESPECT TO ANY MATTER UNDER OR IN CONNECTION WITH THE
SECURITY AGREEMENT.
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PROMISSORY NOTE
[WELLS FARGO LOGO] WELLS FARGO EQUIPMENT FINANCE, INC.
733 Marquette Avenue, Suite 700
MAC N9306-070
Minneapolis, MN 55402
Dated as of May 4, 2004
For value received, the undersigned, hereby promises to pay to the order of
Wells Fargo Equipment Finance, Inc. (the "Lender") at its office in Minneapolis,
MN, or at such other place as may be designated from time to time by the holder
hereof, the sum of $192,607.80 in installments according to the schedule set
forth below; provided, however, that the undersigned and the Lender may agree to
any other payment schedule, in which case any variations shall be set forth in
the space provided for additional provisions. The first payment period shall
begin on the 15th day of the month in which Lender disburses the loan proceeds
if disbursement is made on or before the 15th day of such month, and the first
payment period shall begin on the last day of such month if disbursement is made
during the balance of such month. The first installment shall be payable on the
first payment due date set forth below (which may be the same as the date the
first payment period begins). Subsequent installments shall be payable on the
first day of each payment period beginning after the first payment period. The
undersigned agrees that the date the first payment period begins may be left
blank when this Note is executed and hereby authorizes Lender to insert such
date based upon the date the loan proceeds are disbursed.
PAYMENT SCHEDULE:
Date first payment period begins: First payment due: 6/15/04
Number of Installments: 60 Amount of each installment: $3,210.13
Payment period: MONTHLY Annual Interest rate used in computing
payment schedule: 4.90%
Principal amount of loan proceeds
disbursed: $170,520.47
In addition to installment payments as set forth above, the undersigned agrees
to pay Lender interim interest on the loan proceeds disbursed hereunder from the
date of disbursement to the date the first payment period begins at the annual
interest rate set forth above used in computing the payment schedule. Interim
interest shall be due and payable on the date the first payment period begins.
If any installment is not paid when due, then in addition to any other remedy
Lender may have hereunder, Lender may impose and, if imposed, the undersigned
shall pay a late charge of 5% of the amount of the delinquent installment but in
any event not more than permitted by applicable law. Payments thereafter
received shall be applied first to delinquent installments and then to current
installments.
This Note may be prepaid in whole at any time by paying to Lender the unpaid
principal balance of this Note, determined by using the simple interest method
at the rate set forth herein plus a prepayment premium of 4% of the principal
amount prepaid if prepaid during months 1-24, 3% during months 25 - 36, 2%
during months 37 - 48 and 1% thereafter, together with accrued but unpaid
interest and late charges. Any partial prepayment shall be applied to the last
maturing installment or installments. Upon any prepayment in full, the unearned
portion of the interest will be refunded using the simple interest method.
This Note may be prepaid in part but only as a result of a disposition of an
item of collateral which secures this Note. The amount of such prepayment shall
be the product of the unpaid principal balance of this Note determined in
accordance with the preceding paragraph times a fraction, the numerator of which
is the original advance made by the Lender with respect to the item of
collateral in question and the denominator of which is the original principal
balance of this Note with respect to the existing collateral securing this Note.
Nothing contained in this paragraph shall be construed as an authorization by
Lender to the undersigned to sell or otherwise dispose of an item of collateral
which secures this Note. Such sale or disposition of an item of collateral by
the undersigned shall be made solely in accordance with the terms of the
security agreement or other agreement pursuant to which the undersigned pledged
such item of collateral to Lender.
The undersigned may remit to Lender amounts in excess of an installment that is
due hereunder and Lender shall apply such amount to the next maturing
installment or installments. Payment of amounts in excess of the installment
that is due or installments prior to the due date thereof shall not be treated
as a prepayment or result in a change to either the total number of installments
or the total sum of all installments payable under this Note.
The following shall constitute an Event of Default hereunder: (a) failure to pay
any installment hereunder when due; (b) the occurrence of an event of default as
defined in any security agreement or mortgage securing this Note; (c) the
commencement of any bankruptcy or insolvency proceedings by or against the
undersigned or any guarantor of this Note; and (d) any indebtedness the
undersigned may now or hereafter owe to Lender or any affiliate thereof shall be
accelerated following a default thereunder or, if any such indebtedness is
payable on demand, payment thereof shall be demanded. Upon the occurrence of an
Event of Default, Lender may do any one or more of the following as it may
elect: (i) upon written notice to the undersigned, declare the entire unpaid
balance of the Note to be immediately due and payable, and the same (less
unearned interest computed using the simple interest method as if this Note had
been paid in full on the date it became due and payable) shall thereupon be and
become immediately due and payable: (ii) exercise any one or more of the rights
and remedies available to it under any security agreement or mortgage securing
this Note or under any other agreement or by law.
THIS AGREEMENT INCLUDES THE TERMS ON THE ATTACHED PAGE(S).
IN WITNESS WHEREOF the Debtor has signed this Agreement as of the date first
above written.
Meadow Valley Contractors, Inc.
Debtor
By /s/ Clinton Tryon
-----------------------------
Title Sec./Treas. 5/25/2004
The undersigned hereby waives presentment, notice of dishonor, and protest. The
undersigned agrees to pay all costs of collection of this Note, including
reasonable attorneys' fees. The holder hereof may change the terms of payment of
the Note by extension, renewal or otherwise, and release any security for, or
party to, this Note and such action shall not release any accommodation maker,
endorser, or guarantor from liability on this Note.
Notwithstanding anything to the contrary contained herein, if the rate of
interest, late payment fee, prepayment premium or any other charges or fees due
hereunder are determined by a court of competent jurisdiction to be usurious,
then said interest rate, fees and/or charges shall be reduced to the maximum
amount permissible under applicable law and any such excess amounts shall be
applied towards the reduction of the principal balance of this Note.
This Note shall be construed and enforced in accordance with, and the rights of
the parties shall be governed by, the laws of the State of Minnesota without
regard to conflicts of law rules.
If this Note is signed by more than one person as Debtor, then the term "Debtor"
shall refer to each of them separately and to all of them jointly, and each such
person shall be liable hereunder individually in full and jointly with the
others.
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