Exhibit 10.158
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SELLER'S NAME AND ADDRESS BUYER'S NAME AND ADDRESS
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Name: Arnold Machinery Legal Name(s): Ready Mix, Inc.
Street Address: 4136 Donovan Way Street Address: 3430 E. Flamingo Road, Suite 100
(Place of Business) (Place of Business)
Mailing Address: Same as above Mailing Address: Same as above
City: N. Las Vegas State: NV Zip: 89030 City: Las Vegas County: Clark State: NV Zip: 89121
Telephone: 702-642-9000 Fax 702-642-8808 Telephone: 702-433-2090 Fax 702-433-0189
Distributor Code: C05856 Fed. ID No. 86-0830443
State of Formation: Nevada
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Arnold Machinery Company Ready Mix Inc.
Seller: Buyer:
/s/ KENNETH D. NELSON
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Signature Signature
KENNETH D. NELSON, VICE PRESIDENT
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Title Printed Name and Title(s)
09/__/0l 09/28/0l
Date Date
NOTICE TO BUYER: l. Liability Insurance coverage for bodily injury and property
damage is not included in this Contract. 2. Do not sign this Contract before
reading or if the Contract is not complete. 3. You are entitled to an exact and
completely filled in copy of the contract you sign. 4. Keep this Contract to
protect your legal rights. 5. Additional terms are set forth below,
ADDITIONAL TERMS OF CREDIT SALES CONTRACT
Assignment and Waiver of Defenses: Buyer acknowledges receipt of notice that
Seller is assigning this Contract immediately upon execution to Volvo Commercial
Finance LLC The Americas, whose primary place of business is located in North
Carolina ("Assignee") and that: (a) Assignee has all of Seller's rights and
remedies, and all of Buyer's agreements. representations and warranties shall be
deemed to have been made to Assignee as if Assignee were a party to this
Contract; (b) Seller is not Assignee's agent for any purposes; (c) Seller will
not have any power or authority to modify any term of this Contract: (d) Buyer
will not assert any claims or defenses Buyer may have against Seller or any
other party and will settle all claims, defenses, set-offs; and counterclaims it
may have against Seller or the manufacturer of the Units (the "Manufacturer"),
including, but not limited to, defects in the Units, directly and solely with
Seller or the Manufacturer; (e) Assignee any compensate Seller in excess of the
Amount Financed in exchange for assignment of this Contract; (f) Assignee's
decision to purchase this Contract from Seller relies, in part, upon the
warranties and agreements made by Buyer: and (g) All references to "Seller" in
this Agreement (other than Seller's obligation to sell the Units to Buyer) shall
be deemed to refer to Assignee and its successors and assigns.
No Warranties: THERE ARE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN THOSE
MADE BY THE MANUFACTURER OF THE COLLATERAL. Buyer acknowledges that it is not
relying on any representations from Seller (or any other party) relating to
financing made under this Contract.
Buyer's Representations: Buyer warrants and represents that: (a) Buyer is
indebted for the Total Obligation shown on line 14; (b) except for the security
interest granted to Seller, Units will remain free from all liens and security
interests; (c) all information supplied by Buyer in any financial, credit or
accounting statement to Seller are and will be true, correct and genuine, and
Buyer consents to the ongoing review of Buyers credit reports during the term of
this Contract; (d) Units are to be used only for business purposes; (e) Buyer
has full authority to enter into this Contract and in so doing it is not
violating any law, regulation or agreement and has taken all necessary and
appropriate actions to make this Contract binding and enforceable against Buyer
in accordance with its terns; and (f) my Units traded in are owned by Buyer and
free of all security interests and liens except as stated.
Buyer's Agreements: Buyer agrees: (a) to defend at its own cost any action,
proceeding or claim affecting the Units; (b) to maintain the Units in good
operating condition, repair, and appearance, all in conformity, with all
governmental regulations, insurance policies, and Manufacturer's warranties; (c)
to promptly pay all taxes, assessments, license fees and other public private
charges when levied against the Units or this Contract; (d) to obtain a UCC, or
a certificate of title if applicable, on each of the Units showing Seller's
first priority security interest and to preserve and perfect that security
interest; (e) to not misuse, secrete, sell, rent, lend, encumber or transfer any
of the Units nor permit them to be operated by or he in the possession of any
other party; (f) that Seller any enter any premises at my reasonable times to
inspect the Units; (g) to not assign or encumber my of its rights or obligations
under this Contract; (h) to provide Seller with quarterly and annual financial
statements within 30 and 90 days, respectively, of the end of the applicable
period; (i) to reimburse Seller immediately after written notice for any
expenses incurred by Seller to perform any of the Obligations of Buyer, and (j)
that the Units will not be used to dig, load, haul or transport environmentally
hazardous materials, contaminants, or waste products.
Insurance and Risk of Loss: All risk of loss, damage or destruction of the Units
will at all times be on Buyer. Buyer will keep the Units insured at Buyers
expense against (i) liability for not less than $1,000,000 per occurrence, and
(ii) loss or damage by fire, theft and other customary risks for the greater of
the Units' full insurable value or the Indebtedness. with a deductible not to
exceed $2,500 per Unit. Coverage and insurer will be subject to Seller's
reasonable approval (with the insurer being rated not less than B+ by A. M.
Best. with a financial class size of at least VIII, with Seller being named an
additional insured and/or loss payee on the policies, as applicable. Each policy
will further provide that Seller's interest can not be invalidated by any act,
omissions or neglect of any party other than Seller and that the insurer will
give Seller thirty days advance written notice of any policy cancellation or
non-renewal, whether such cancellation or non-renewal is at the direction of
Buyer or insurer. Buyer will promptly deliver a copy of each policy or insurance
certificate to Seller and proof of renewal at least 30 days prior to expiration
or cancellation. If Buyer fails to so insure the Units, Seller may purchase such
insurance at Buyer's expense. purchase of which need not include liability or
protection of Buyer's interest. Buyer hereby irrevocably appoints Seller as
Buyer's attorney-in-fact to execute and endorse all documents, checks, or drafts
in Buyer's name and to submit any proof of loss to collect such insurance.
Duty to Pay: Any warranty, service contract, insurance policy or other service
financed through this Contract is separate and independent of this Contract and
is the sole obligation of the issuer of such warranty, service contract,
insurance policy or other service. Buyer shall pay each Installment on time
regardless of any claimed defect in the Units or any other entity's breach of
any warranty, service contract or insurance policy. Each Installment is due
monthly without notice beginning on the "Starting Date" and continuing on the
same day of each month thereafter.
CONSTRUCTION 6.01 -2(3)
Late Charge: A late charge of 5% of any overdue amount on any Installment will
be charged for each Installment not received in full in immediately good funds
within ten (10) days of its due date. All other Indebtedness due from Buyer to
Seller not paid by its respective due date and, after acceleration, the entire
unpaid balance of the Total Obligation, will bear interest at the rate of 18%
per annum or such lesser rate as is required under applicable law. All payments
may at the option of the Seller be applied first to late charges, then to other
charges, and then to accrued and unpaid interest and last to the unpaid
principal balance.
Events of Default: Each of the following is an "Event of Default" under this
Contract: (a) Buyer fails to pay any Installment to Seller in full when due or
fails to make any other payment of the Indebtedness; (b) Buyer breaches any
provision, representation, or warranty of this Contract, or any other contract
held by or agreement with Seller, and fails to cure such breach after ten (l0)
days' written notice; (c) any of the Units arc lost, severely damaged, destroyed
or seized: (d) Buyer or any guarantor dies, becomes insolvent, or ceases to do
business in the ordinary course. or has a material adverse change in its
management; (e) a petition in bankruptcy is filed by or against Buyer or any
guarantor; (f) Buyer admits its inability to pay its debts as they come due or a
receiver is appointed for Buyer or any guarantor, and (g) any guarantor, surety
or endorser for Buyer defaults in any obligation or liability to Seller.
Whenever an Event of Default exists under this Contract or any other agreement
hell by Seller, all debts and contracts, if Seller so elects, will become
immediately due and payable.
Remedies: Upon the occurrence of an Event of Default, and in addition to all
other rights and remedies available under applicable law, Seller may (i) at its
option, declare all of the Indebtedness immediately due and payable; (ii)
without notice or demand or legal process, take possession of the Collateral
wherever located and, for this purpose, may enter upon the property occupied or
under the control of Buyer; (iii) require Buyer to assemble the Collateral and
make it available to Seller at a place to be designated by Seller; (iv) at the
expense of Buyer, make repairs to the Units deemed necessary by Seller; and (v)
with or without obtaining possession of the Collateral or any part thereof sell
the same at a public or private sale(s). The proceeds of any sale(s), after
deducting all expenses and costs (including reasonable attorneys' fees and
expenses), shall be applied to the Indebtedness or any other indebtedness of
Buyer to Seller, and any surplus remaining shall be paid to Buyer or to any
other party who may be legally entitled to such surplus. At any sale or
disposition, and as permitted by law, Seller may purchase any or all of the
Collateral and/or accept a trade of property for all or any portion of the
purchase price. Seller shall have all of the rights and remedies afforded a
secured party under the Uniform Commercial Code as adopted in the State of North
Carolina. All rights and remedies are cumulative, not alternative, and shall
inure to the benefit of Seller and its successors and assigns. No liability
shall be asserted or enforced against Seller under this Section except for
Seller's intentional wrongful acts. Seller may in its sole discretion waive an
Event of Default or allow a cure of an Event of Default. Any waiver will not
constitute a waiver of any other Event of Default.
Consents and Waivers: To the extent permitted under applicable law, Buyer
expressly consents to and authorizes a court with jurisdiction to issue, by
hearing without notice, such orders as may be necessary to enforce the terms of
this Contract, granting to Seller such powers as Seller shall need to enforce
this Contract. Any such court is directed to not require a bond of Seller, the
parties agreeing that time is of the essence to protect Seller. To the extent
permitted under applicable law, Buyer expressly waives any notice of sale or
other disposition of the Collateral and of any other exercise of any right or
remedy of Seller existing after the occurrence of an Event of Default and, that
to the extent that such notices cannot be waived, notices shall be in writing,
given to Buyer at the address set forth on page 1 (or m such other address as
provided in writing by Buyer) by registered or certified mail at least five (5)
days before the date of sale. Notices given in accordance with the preceding
sentence shall be deemed reasonable and to fully satisfy the requirement for the
giving of notice to Buyer.
Governing Law: This Contract is effective when accepted by Assignee at its
principal place of business in North Carolina and is governed by the substantive
(not conflicts) laws of the State of North Carolina.
Miscellaneous: To the extent permitted under applicable law, Buyer waives all
exemptions, acceptances, presentment, demand for payment, notice of non-payment,
protest, notice of protest, notice of dishonor, and all notices in connection
with this Contract. filing of suit, and diligence in collecting the Indebtedness
or enforcing any provision of this Contract. To the extent any provision of this
Contract shall be determined unenforceable under applicable law, such provisions
shall be revised to the minimum extent necessary to make such provision
enforceable and all of the other provisions shall be enforceable in accordance
with their terms. Buyer agrees to pay on demand. all attorneys' fees and all
other costs and expenses which may be incurred by Seller in the enforcement of
this Contract or in any way arising out of, the protection, assertion or
enforcement of this Contract, whether or not suit is brought. Said fees are
recoverable whether incurred in any bankruptcy, insolvency or receivership
proceedings. Buyer shall be further liable for all costs and expenses of any
nature whatsoever incurred by Seller in any repossession, recovery, storage,
repair, sale, release or other disposition of the property, plus interest on
each of the foregoing at the rate of 18% per annum from the date said costs and
expenses are incurred. Buyer hereby appoints Seller as agent for the benefit of
Buyer and grants Seller an irrevocable power of attorney to (i) correct obvious
errors and fill in such blanks as serial numbers, date of first payment and
similar provisions: (ii) take any and all actions and to execute and file all
documents necessary to establish, maintain, and continue the perfected security
interest of Seller in the Units, in the name of and on behalf of Seller, at
Buyer's sole cost and expense; and (iii) to endorse Buyer's name to any title
application, registration, licensing, and related documents for the purpose of
securing certificates of title, registrations, and licenses, if any, issued
showing Buyer's interests in and/or ownership of Units and other equipment. This
power of attorney is coupled with an interest and is irrevocable during the term
of this Contract. Buyer shall take all actions and execute and file all
documents reasonably requested by Seller to establish, maintain, and continue
the perfected security interest of Seller. Buyer shall, within ten (10) days
after receipt of notice from Seller, pay all costs and expenses of filing and
recording (including the costs of all searches deemed necessary by Seller) to
establish, maintain, and determine the validity and priority of Sellers security
interest. Any documentation fee may reimburse and/or compensate Seller or
Assignee for documenting the transactions contemplated in this Contract and may
result in profit to Seller and/or Assignee. The terms "Buyer;" "Seller,"
"Assignee," and guarantors shall include heirs, executors, administrators,
successors or assigns of those parties. The headings at the beginning of each
section of this Contract are solely for convenience and do not modify any
section. Time is of the essence of this Contract.
Entire Agreement: This Contract which Buyer acknowledges reading it in its
entirety, together parties with any written riders executed by both Buyer and
Seller, constitutes the entire agreement between the panics concerning the
financing of the Units. No modification of this Contract shall be enforceable
unless included in a written document duly executed by both Buyer and an officer
of Seller.
Sellers Initials: Buyers Initials: /s/
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CONSTRUCTION 6.01 -3(3)
VOLVO Credit Sales Contract - E
(Corporation or Other Entity)
Volvo Commercial Finance LLC The Americas (Security Agreement
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Customer No. Schedule No.
066-502354 001
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DESCRIPTION OF UNITS PURCHASED AND FINANCED (The "Units")
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Make Model Description Serial No. Attachments Amt. Financed
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Volvo A30C Articulated Hauler A30CV60032 180,430.00
Address(es) where Units will be located:
3430 E. Flamingo Road, Suite 100
Las Vegas, Nevada 89121
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TRADE-IN DESCRIPTION 1. Unit Cash Sales Price 168,000,00
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N/A 2. Net Trade-in Allowance 0.00
(Net Value minus Total liens)
3. Subtotal(1 minus 2) 168,000,00
4. Sales Tax 12,180.00
- -------------------------------------------------------------- 5. Unit Insurance 0.00
Total Value: N/A Total Liens: N/A
============================================================== 6. Other Insurance 0.00
Interest Rate: 0.00%
- -------------------------------------------------------------- 7. Documentation Fees 250.00
Buyer Agrees to pay the "Total Obligation"
(Item 14) In accordance with the following 8. Registration/Title Fees 0.00
schedule (and any additional page(s) of such
schedule attached hereto). 9. Other Charges (Describe) 0.00
No. of Installments Start/Due Date Payment Amt. Total --------------------------- 0.00
1 10/2001 5,012.10 5,012.10 --------------------------- 0.00
35 11/2001 5,011.94 175,417,90 --------------------------- 0.00
--------------------------- 0.00
Total No. Payments 36 Total Amount: 180,430.00
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If shown in this box, Buyer has elected to finance certain 10. Total itemized Charges
insurance and other services through this Contract. The terms
of tech service are contained in separate agreement(s), Buyer (4 through 9) 12,430.00
has received copies of such agreements, and Buyer agrees -----------
that such agreements are not part of this Contract.
Policy Total Charge 11. Cash Down Payment 0.00
term
(Item 5) Unit Insurance: N/A N/A 12. Amount Financed (3+10-11) 180,430.00
(Item 6) Other Insurance: N/A N/A 13. Finance Charge 0.00
(Item 9) Other Charges: N/A N/A 14. Total Obligation (12+13) 180.430.00
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Credit Sale: The undersigned buyer (the "Buyer") has chosen to purchase and
hereby purchases on credit the Units from the undersigned seller (the "Seller")
and agrees to pay in full the Total Obligation set forth In Item 14 above, in
addition to the Total Obligation, Buyer agrees to pay all other amounts owed to
Seller under this Contract (collectively, the "Indebtedness") when due. Buyer
may prepay the Total Obligation in whole or in part on any Installment Due Onto
by (i) giving Seller at least thirty (30) days' prior written notice of such
prepayment and (ii) paying to Seller the amount of the unpaid balance of the
Amount Financed being prepaid on such Installment Due Date, the Installment due
on such Installment Due Date, and all other amounts of the Indebtedness then due
and remaining unpaid under this Contract.
Security Interest: In order to secure payment of the Indebtedness and all other
debts and obligations at any time owing from Buyer to Seller. Buyer hereby
grants to Seller a security interest in and to the Units, together with all
present and future attachments, accessions, replacements, parts, substitutions,
chattel paper, and proceeds, including amounts payable under any Insurance
policies (the "Collateral"). Buyer agrees that a photocopy or other reproduction
of this Contract or of any financing statement may be filed as a financing
statement.
Seller's Initials: Buyer's Initials: /s/
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CONSTRUCTION 6.01
-1(3)