Exhibit 10.152
[10.152]
FCC
Equipment Security Agreement
Financing, Inc.
1. Grant of Security Interest; Description of Collateral.
Debtor grants to Secured Party a security interest in the property described
below, 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": (Describe
Collateral fully including make, kind of unit, model and serial numbers and any
other pertinent information.)
See Schedule A Attached Hereto And Made A Part Hereof
2. What Obligations the Collateral Secures.
The credit relationship between the Debtor and the Secured Party may be a
continuing one and may include numerous types of extensions of credit, loans, or
advances made directly or indirectly to the Debtor. Accordingly, this Security
Agreement and the security interest created hereby secures payment of all
obligations of any kind owing by the Debtor to the Secured Party (the
"Indebtedness"). The Indebtedness includes, without limitation, those
obligations of the Debtor which: (a) are now existing or hereafter incurred,
including without limitation, those obligations set forth in paragraph 3 of this
Agreement; (b) are direct or indirect; or (c) arise from loans, guaranties,
endorsements or otherwise. The Indebtedness may be: (a) related or unrelated to
the purpose of the original extension of credit; (b) of the same or a different
class as the primary obligation; and (c) from time to time reduced or
extinguished and thereafter increased or re-incurred. The Indebtedness
specifically includes, without limitation, any sums advanced and any expenses or
obligations incurred by the Secured Party pursuant to this Agreement or any
other agreement concerning, evidencing or securing obligations of the Debtor to
the Secured Party and any liabilities of the Debtor to the Secured Party arising
from any sources whatsoever.
3. Promise to Pay; Terms and Place of Payment.
Debtor promises to pay Secured Party the total sum of $1,298,189.20, which
represents principal and interest precomputed over the term hereof, payable in
55 (total number) combined principal and interest payments as follows:
Equal Successive Monthly Payments
$23,603.44 beginning on August 27, 2001 and the same amount on the same date of
each month thereafter until fully paid, provided, however, that the final
payment shall be in the amount of the then unpaid balance of principal and
interest.
Other Than Equal Successive Monthly Payments
Payment shall be made at the address of Secured Party shown herein or such other
place as Secured Party may designate from time to time.
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 final page), or
[_] both agricultural and business or commercial purposes.
Location 4411 S 40th Street, Suite D-11 Phoenix AZ 85040
------------------------------------ ------------ ----------- ----------
Address County City State Zip Code
Page 1 of 6
4. Use and Location of Collateral. (Continued)
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 described in Paragraph 3;
(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 Security Agreement and in
so doing it is not violating its charter or by-laws, any law ??? 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
the Security Agreement;
(d) that, if a certificate of title is 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 the payment of the amount in Paragraph
3, or in any promissory note executed in connection herewith, 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
Page 2 of 6
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's 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 instruments 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, the 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 the 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 and the Collateral continue to be 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 conditions;
(e) any of the Collateral is lost or destroyed;
(f) a petition or complaint in bankruptcy or for arrangement or reorganization
or for relief under any insolvency law is filed by or against Debtor or
Debtor admit 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 herein described 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 select, become immediately due and payable and the unpaid
principal balance of the indebtedness described in Paragraph 3, or in any
promissory note executed in connection herewith, shall bear interest at the rate
of 18% per annum (but in no event greater than the highest rate permitted by
relevant law) until paid in full. In no event shall the Debtor, upon demand by
the 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 Indebtedness, if elected by Secured
Party, shall be subject to all applicable laws, including laws relating to
rebates and refunds of unearned charges.
Page 3 of 6
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 to 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. 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. Secure
Party may require Debtor to assemble the Collateral and return it to Secured
Party at a place to be designated by Secured Party which 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 of 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 or retaking, holding, preparing for sale, selling and the like shall
include reasonable attorneys' fees 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 thereof;
(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.
Except as otherwise provided herein or by applicable law, the Debtor shall have
no right to prepay the indebtedness described in Paragraph 3, or in any
promissory note executed in connection with this Security Agreement. 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 the Security Agreement.
Debtor acknowledges receipt of a true copy and waives acceptance hereof. If
Debtor is a corporation, the 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 but 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.
Page 4 of 6
14. Miscellaneous (Continued)
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, 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.
The Debtor authorizes the Secured Party at the Debtor's expense to file any
financing statements relating to the Collateral (without the Debtor's signature
thereon) which the Secured Party deems appropriate and the Debtor irrevocably
appoints the Secured Party as the Debtor's attorney-in-fact to execute any such
financing statements in the Debtor's name and to perform all other acts which
the Secured Party deems appropriate to perfect and to continue perfection of the
Security Interest.
Upon the Debtor's failure to perform any of its duties hereunder, the Secured
Party may, but it shall not be obligated to, perform any of the duties and the
Debtor shall forthwith upon demand reimburse the Secured Party for any expenses
incurred by the Secured Party in so doing.
15. Prepayment Provision:
A prepayment premium will be assessed on the current unpaid principal balance if
this loan is paid in full prior to maturity as stated below:
Year 1 5% Year 4 2%
Year 2 4% Year 5 1%
Year 3 3%
Dated: July 27, 2001
-------------
Debtor: Meadow Valley Contractors, Inc.
----------------------------------------------
By: /s/ Kenneth D. Nelson Title: Vice President
----------------------- --------------
If Corporation, have signed by President,
Vice President or Treasurer, and give official
title.
P.O. Box 60726 Phoenix, AZ 85082
- -------------------------------------------------------
Mailing Address City State Zip Code
Secured Party:
FCC Equipment Financing, Inc.
- ----------------------------------------------------
Name of individual, corporation or partnership
By:_________________________Title___________________
if Corporation, give official title. If owner or
partner, state which.
P.O. Box 56347
- ----------------------------------------------------
Jacksonville, Florida 32241-6347
- ----------------------------------------------------
Page 5 of 6
If Debtor is partnership, enter:
Partner's names Home Addresses
- --------------- --------------
- --------------------------------------------------------------------------------
NOTICE: Do not use this form for transactions for personal, family or
household purposes. For Agricultural and other transactions subject to Federal
or State regulations, consult legal counsel to determine documentation
requirements.
Agricultural purposes generally means farming, including dairy farming, but it
also includes transportation, harvesting, and processing of farm, dairy, or
forest products if what is transported, harvested, or processed is farm, dairy,
or forest products grown or bred by the user of the equipment itself. It does
not apply, for instance, to a logger who harvests someone else's forest, or a
contractor who prepares land or harvests products on someone else's farm.
- --------------------------------------------------------------------------------
IN LOUISIANA, appropriate form must accompany this Agreement.
Page 6 of 6
July 27, 2001
-------------
Date
FCC Equipment Financing, Inc.
Post Office Box 56347
Jacksonville, FL 32241-6347
Gentlemen:
You are irrevocably instructed to disburse the proceeds of your loan to us,
evidenced by our Security Agreement of even date, as follows:
PAYEES NAMES AND ADDRESSES AMOUNT
- --------------------------------------------------------------------------------
FCC Equipment Financing, Inc.
Jacksonville FL 32241
to pay for collateral listed in Security Agreement $ 701,585.58
-------------
Bland Trucking, L.C.
South Jordan, UT
to pay for collateral listed in Security Agreement $ 370,000.00
-------------
FCC Equipment Financing, Inc.
P.O. Box 56347, Jacksonville, FL 32241-6347
to pay UCC filing fees, lien searches and state documentary
stamps (if applicable) $ 500.00
-------------
TOTAL PROCEEDS $ 1,072.085.58
--------------
Very Truly Yours,
Meadow Valley Contractors, Inc.
---------------------------------------------------------------
By: /s/ Kenneth D. Nelson Title: VICE PRESIDENT
---------------------------- --------------------------