Exhibit 10.155
REVOLVING LOAN AGREEMENT
This Revolving Loan Agreement ("Agreement") is between the undersigned Ready
Mix, Inc. (the "Company") and The CIT Group/Equipment Financing, Inc. ("CIT")
1. LOANS.
CIT agrees, subject to the terms of this Agreement to make loans to the Company
(the "Loans") from time to time from the date hereof to including December 31,
2001 (the "Termination Date"), up to but not exceeding, in the aggregate
principal amount, at any one time outstanding, the sum of $7,000,000.00 (the
"Line of Credit"). Except for the initial Loan made hereunder, each Loan shall
be in the minimum amount of $25,000.00 or a multiple thereof. All Loans made
hereunder will be repayable at CIT's address set forth herein or at such other
address as CIT may from time to time direct.
2. CONDITION PRECEDENT TO ALL LOANS.
CIT shall not be obligated to make any Loan under this Agreement if, at the time
of the making of the proposed Loan:
(a) an Event of Default, as defined in Section 13, has occurred and is
continuing; or
(b) the aggregate principal amount of Loans outstanding exceeds the
Available Line of Credit as defined in Section 8.1; or
(c) there has been a material adverse change in the Company's financial
condition from that shown in the Company's financial statement dated
December 31, 2000.
3. LOAN ACCOUNT; MONTHLY STATEMENTS.
All Loans will be charged, and payments received on account of such Loans
credited, to an account maintained in the Company's name on CIT's books (the
"Loan Account"). Each month CIT will render to the Company a statement of the
Loan Account which shall constitute an account stated and shall be deemed to be
correct, accepted by and binding upon the Company unless CIT shall receive a
written statement of exceptions from the Company within 30 days after such
statement has been rendered to the Company. In the event CIT should so request,
the Company agrees to execute and deliver to CIT such promissory notes of the
Company as CIT shall request in order to evidence the Loans, but unless and
until CIT should so request, the Loan Account and the monthly statements thereof
rendered by CIT to the Company shall constitute the primary evidence of the
Loans.
4. REPAYMENT OF LOANS.
4.1 At any time prior to Termination Date, the Company may make payments to
CIT on account of the Loans, provided that the Company may not make any
payment which results in the outstanding principal amount owing under the
Loan Account to be less than $250,000.00. All such payments may, at CIT's
option, be applied first to the payment of accrued interest and then to
principal.
4.2 The Company promises to pay the outstanding principal amount owing under
the Loan Account as of the Termination Date in 48 equal successive
monthly installments, commencing on, January 31, 2002 and on a like date
of each month thereafter until such amount has been paid in full,
provided, however, that the final installment shall be in the amount of
the then unpaid principal amount.
4.3 At any time on or after the Termination Date, the Company may pay the then
outstanding principal amount owing on the Loan Account in whole or in
part, without penalty, provided that interest accrued to the date of such
payment is paid with such payment. Each such partial principal payment
shall be in an amount equal to the amount of a monthly installment
determined under Section 4.2 or a multiple thereof. All such partial
principal payments shall be applied to the monthly installments due under
Section 4.2 in the inverse order of their maturities.
5. INTEREST.
All Loans shall bear interest payable monthly at a rate per annum equal to the
"governing rate" plus .25% on the average daily unpaid balance of principal
outstanding on all such Loans during the month, but in no event greater than the
highest rate permitted by applicable law, even if this Agreement shall state a
minimum rate of interest. Interest shall be payable within 5 business days after
the Company's receipt of CIT's interest statement.
"Governing Rate" shall mean a rate equal to the highest of (i) the Prime Rate of
The Chase Manhattan Bank or its successors or (ii) "The Wall Street Journal
Prime Rate" or (iii) the commercial paper rate in effect from time to time.
Interest shall be computed on the basis of a year of 360 days. The Prime Rate of
The Chase Manhattan Bank or its successors shall mean the rate of interest
publicly announced by The Chase Manhattan Bank or its successors in New York
from time to time as its Prime Rate. The Prime Rate of The Chase Manhattan Bank
or its successors is not intended to be the lowest rate of Interest charged by
The Chase Manhattan Bank or its successors to its borrowers. "The Wall
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Street Journal Prime Rate" shall mean the Prime Rate listed by the Wall Street
Journal. If more than one Prime Rate is listed in the Wall Street Journal, then
the highest rate shall apply. "Commercial paper rate" shall mean the average
rate quoted by the Wall Street Journal or such other source as CIT may determine
for 30-day dealer commercial paper.
The Governing Rate on the date of the Agreement is 6.75% per annum.
6. DEFINITIONS; STANDARDS OF ELIGIBILITY.
6.1 "Receivables" shall mean accounts, contract rights, chattel paper, notes,
drafts, rental receivables, conditional sale contracts, security
agreements, installment paper, installment sales, revolving charge
accounts, and other obligations for the payment of money, including inter-
company accounts and notes receivable, and all documents, contracts,
invoices and instruments evidencing or constituting the same and all
security instruments and security agreements relating thereto, which are
created or acquired by the Company, all property the sale or lease of
which gives rise or purports to give rise to Receivables, and all cash and
non-cash proceeds thereof, including any merchandise returned or rejected
by, or repossessed from customers.
6.2 "Eligible Receivables" shall mean Receivables created or acquired by the
Company in the regular course of its business as presently conducted,
which are and at all times continue to be acceptable to CIT in all
respects and which are payable within ninety (90) days of invoice date. In
general, no Receivable shall be deemed eligible unless: the credit of the
obligor on such Receivable is and continues to be acceptable to CIT, such
Receivable represents an existing, valid and legally enforceable
indebtedness based upon an actual and bona fide sale and delivery or lease
of property or rendition of services to the named obligor, which has been
finally accepted by the obligor and for which the obligor is
unconditionally liable to make payment in the amount stated in each
invoice, document or instrument evidencing, constituting or accompanying
the Receivable in accordance with the terms thereof, without rights of
rejection or return or offset, defense, counterclaim or claim of discount
or dedication; all statements made and all unpaid balances appearing in
the invoices, documents and instruments representing or constituting the
Receivables, are true and correct and are in all respects what they
purport to be, and all signatures and endorsements that appear thereon are
genuine and all signatories and endorsers, if any, have full capacity to
contract, and the obligor owing such Receivable is not affiliated with or
employed by the Company; absolute title to each Receivable, free and clear
of liens and encumbrances or claims of others, including liens or
encumbrances or claims of ownership on the property the sale or lease of
which purports to give rise to such Receivable, is vested absolutely in
the Company and no other assignment of or security interest or other
interest in the Receivable in favor of others is then in effect: the
transactions underlying or giving rise to any Receivable do not violate
any applicable state or federal law or regulation and all documents
relating to the Receivables are legally sufficient under such laws and
regulations and are legally enforceable in accordance with their terms;
and any contract under which any Receivable arises does not contain a
prohibition against assignment or require the consent of or notice to the
obligor with respect to any assignment of monies arising thereunder. A
Receivable will not be deemed an Eligible Receivable if any of the
following is the case: it is ninety (90) or more days past due; it
represents a COD sale; it is a contra account; it is an employee/officer
account; it is a retainage account; the obligor owning such Receivable
resides outside of the United States.
6.3 "Inventory" shall have the same meaning as such term is defined under the
Uniform Commercial Code, including all goods acquired or manufactured for
sale or lease, and any parts, accessories, piece goods, new materials,
work in process and finished merchandise, and all proceeds thereof.
6.4 "Eligible Inventory" shall mean the portion, excluding work in process, of
Inventory consisting of saleable or leasable merchandise which has been
acquired or manufactured by the Company in the regular course of business
for sale or resale or lease to customers, which is owned by the Company
free and clear of all liens, encumbrances or claims in favor of others,
and which at all times continues to be acceptable to CIT for Eligible
Inventory and Eligible Equipment purposes.
6.5 "Equipment" shall have the same meaning as such term is defined under the
Uniform Commercial Code.
6.6 "Eligible Equipment" shall mean all of the Equipment which is owned by the
Company free and clear of all liens, encumbrances or claims in trust of
others, and which at all times continues to be acceptable to CIT for
Eligible Inventory and Eligible Equipment purposes.
6.7 "Obligations" shall mean all loans and advances from time to time made by
CIT to the Company hereunder and to others at the request of or for the
account of or for the benefit of the Company, all other indebtedness and
obligations which may be now or hereafter owing by the Company to CIT
under this Agreement or any other agreement which may now or hereafter be
entered into by CIT with the Company, howsoever arising, whether absolute
or contingent, joint or several, matured or unmatured, direct or indirect,
primary or secondary, including, but not limited to, CIT's interest or
other charges hereunder or under any other agreement between the Company
and CIT. The Company hereby agrees to pay on demand all costs and fees CIT
may incur in the event of default by the Company hereunder, all costs and
expenses (including, all out-of-pocket expenses and attorneys' fees
actually paid by CIT) incurred by CIT, its employees or agents in
protecting, maintaining, preserving, enforcing or foreclosing CIT's
security interest in any Eligible Inventory and Eligible Equipment,
including all efforts made to enforce collection of any Receivable,
whether through judicial proceedings or otherwise or in defending or
prosecuting any action or proceeding arising out of or relating to CIT's
transactions with the Company, all of which are hereby also included in
the definition of "Obligations" and which may be charged at CIT's option
to the Loan Accounts in the event the same are not promptly paid after
demand.
Standards of eligibility or acceptability for Eligible Inventory and Eligible
Equipment purposes and determination of value shall be fixed and may be revised
from time to time solely by CIT in its exclusive judgement, exercised reasonably
and in good faith. Reliance by CIT from time to time on listings, reports and
other information relating to any Eligible Inventory and Eligible Equipment
furnished by or obtained from the Company shall not be deemed to limit CIT's
right to revise standards of eligibility or acceptability and determination of
value at any time and from time to time.
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7. GRANT OF SECURITY INTEREST; ELIGIBLE INVENTORY AND ELIGIBLE EQUIPMENT.
7.1 As security for the prompt payment in full of all present and future
Obligations, the Company hereby grants to CIT a security interest in and
hereby assigns and pledges to CIT, its successors and assigns (which
grant, assignment and pledge shall continue until payment in full of all
Obligations, whether or not this Agreement shall have sooner terminated),
all right, title and interest of the Company in and to the following
(which, together with any other security at any time pledged, assigned or
delivered by the Company to CIT or received by CIT in connection with any
Obligations are herein sometimes collectively called "Eligible Inventory
and Eligible Equipment");
(a) All Receivables of the Company, whether or not the same be Eligible
Receivables and whether or not specifically listed on any schedules,
assignments or reports furnished to CIT from time to time, whether now
existing or arising or created or acquired at any time hereafter, together
with all rights to any and all sums due and to become due on Receivables,
all proceeds of Receivables in whatever form, including cash, checks,
notes, drafts and other instruments for the payment of money, and all
right, title and interest in and to any merchandise the sale or lease of
which gives rise to, or purports to create any Receivable or which secures
any Receivable, all property allocable to unshipped orders and all
merchandise returned by or reclaimed or repossessed from customers, all
rights of stoppage in transit, replevin, repossession and reclamation and
all other rights or any unpaid vendor or lienor. The continuing general
assignment and pledge of the security interest in Receivables contained
herein shall include all accounts, all documents, instruments, contracts,
liens and security instruments, all credit insurance policies and other
insurance and all guarantees relating to Receivables, all books and
records evidencing, securing or relating to Receivables all Eligible
Inventory and Eligible Equipment, deposits, dealer reserves, or other
security securing the obligations of any person under or relating to
Receivables, all credit balances in favor of the Company on CIT's books,
and all rights and remedies of whatever kind or nature the Company may
hold or acquire for the purpose of securing or enforcing Receivables, and
all general intangibles relating to or arising out of Receivables; and
(b) All Inventory in which the Company now or at any time hereafter may
have an interest, whether or not the same be Eligible Inventory and
whether or not such Inventory is specifically listed or described in this
Agreement or in any Inventory reports furnished to CIT from time to time,
whether or not the same is in transit or in the constructive, actual or
executive occupancy or possession of the Company or is held by the Company
or by others for the Company's account, including, without limitation, all
goods covered by purchase orders and contracts with suppliers and all
goods billed and held by suppliers, all Inventory which may be located on
premises of the Company or of any carriers, forwarding agents, truckers,
warehousemen, vendors, selling agents or third parties, and all general
intangibles relating to or arising out of Inventory. This continuing
general lien on and security Interest in Inventory through all states of
manufacture, production or processing, to all raw materials, goods in
process and finished products, and to all additions thereto, and to all
insurance policies and proceeds thereof covering Inventory, and shall
automatically attach to all Receivables and all other cash and non-cash
proceeds resulting from the sale, lease or disposition of Inventory,
including any trade-ins. With respect to after-acquired Inventory, CIT's
security interest shall be deemed to be a purchase money security
interest; and
(c) All equipment now or hereafter listed on Schedule A; and
(d) All other personal property of the Company, now existing or hereafter
arising or acquired, including without limitation all of the Company's
accounts, goods, furniture, machinery, equipment, fixtures, investment
property, general intangibles (including, without limitation, goodwill,
inventions, designs, patents, patent applications, trademarks, trademark
applications, service marks, trade names, licenses, leasehold interests in
real and other security held by or granted to the Company to secure
payment of the Company's accounts, investment property, general
intangibles, instruments, and notes), tax refunds, chattel paper, contract
rights, instruments, documents, notes, returned and repossessed goods,
together with all accessions to, substitutions for, and all replacements,
products and proceeds of the foregoing (including, without limitation,
proceeds of insurance policies insuring any of the foregoing), all books
and records (including, without limitation, customer lists, credit files,
computer programs, printouts, and other computer materials and records)
pertaining to any of the foregoing, and all insurance policies insuring
any of the foregoing.
The Obligations shall also be secured by any property in which the company
may have granted, or may in the future grant, a security Interest to CIT
pursuant to any other agreement, including, but not limited to, any such
agreement with CIT acquires by the way of purchase, assignment or
otherwise.
8. AVAILABLE LINE OF CREDIT.
8.1 The maximum principal amount of Loans that may, from time to time, be
outstanding under this Agreement and which in no event shall exceed the
Line of Credit, is hereinafter referred to as the "Available Line of
Credit".
8.2 The Available Line of Credit, at any time and from time to time, shall be
an amount equal to the following:
(a) Sixty-five percent (65%) of the amount owing on Eligible Receivables as
computed from monthly aging reports to be submitted to CIT by Company; and
(b) Eighty-Three (83%) of the aggregate appraised value of the Eligible
Equipment; and
(c) Fifty percent (50%) of the Eligible Inventory as computed from monthly
reports to be submitted to CIT, up to a maximum advance of $700,000.00.
8.3 The total of Eligible Receivables as of the date June 30, 2001 is
$4,799,636.09. Sixty-five percent (65%) of the Eligible Receivables is
$3,119,763.46. The aggregate appraised value of Eligible Equipment
described in Schedule A as of this date is $64,500.00. Eighty-three
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percent (83%) of the aggregate appraised value of the Eligible Equipment
is $53,535.00. The total Eligible Inventory as of the date May 31, 2001 is
$910,078.10. Fifty percent (50%) of the Eligible Inventory is $455,039.05;
however, the maximum advance per 8.2(c) above is $700,000.00
The sum total of the above collateral components is $3,628,337.51
The Available Line of Credit as of the date hereof is $3,628,337.51.
8.4 The fair and correct appraised value of each item of Eligible Equipment
shall be deemed to be the amount set forth opposite each such item in
Schedule A attached hereto.
8.5 The Company may, from time to time, up to and including the Termination
Date add additional items of Eligible Equipment to Schedule A, provided
that each such item of Eligible Equipment must be acceptable to CIT in all
respects. The appraised value of any such item of new Eligible Equipment
shall be 90% of the cash price (exclusive of taxes and charges) paid by
the Company for such equipment and the appraised value of any such item of
used Eligible Equipment shall be 80% of cash price (exclusive of taxes &
charges).
8.6 The appraised value of each item of Eligible Equipment shall be deemed to
depreciate at the rate of 1.5% of the original appraised value of such
item per month, effective the first day of each month, commencing August
1, 2001, or, in the event that Schedule A is subsequently amended to add
other Eligible Equipment, commencing on the first day of the month
following the month in which such Eligible Equipment was added to Schedule
A. The Company may, subject to the following terms and conditions, elect
to reappraise any or all of the individual items of Eligible Equipment on
Schedule A and request that CIT use the reappraised values to replace the
depreciated values in computing the value of the Eligible Equipment:
(i) the Company will not have the right to request a reappraisal of any
item of Eligible Equipment after any applicable Termination Date or
if an Event of Default has occurred and is continuing;
(ii) an item of Eligible Equipment may be reappraised only once during
any calendar year;
(iii) any reappraisal of an item of Eligible Equipment shall be made on
the same basis as the last appraisal of such item or if no
appraisal was previously made of such item, the appraisal shall be
made a mutually agreed upon basis; and
(iv) the Company shall request the reappraisal in writing and shall pay
all costs associated with the reappraisal and the appraiser shall be
subject to approval by CIT and approval shall not be reasonably
withheld.
8.7 Any Eligible Equipment which is subsequently sold or otherwise disposed
of, lost or destroyed, or which in the opinion of CIT has for any other
reason lost all Eligible Equipment value, shall be deemed to have an
appraised value of zero.
8.8 Notwithstanding anything to the contrary contained in Section 4.2 if at
any time the aggregate principal amount of all Loans outstanding exceeds
the Available Line of Credit then in effect, the Company will, within 10
days after CIT's request therefor, either:
(a) add such additional Eligible Equipment to Schedule A to increase the
Available Line of Credit to an amount equal to or exceeding the aggregate
principal amount of all loans then outstanding; or
(b) pay CIT such amount so that the amount of the Loans outstanding does not
exceed the Available Line of Credit.
9. LOCATION OF ELIGIBLE EQUIPMENT.
The Company and CIT agree that regardless of the manner of affixation, the
Eligible Equipment shall remain personal property and not become part of any
real estate. The Company agrees that the Eligible Equipment will be kept at the
location or locations specified on Schedule A or within the States of Arizona,
California, Idaho, New Mexico, Nevada, Texas, Utah or Wyoming.
10. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to CIT that:
10.1 except for the security interest granted hereby, the Eligible Inventory
and Eligible Equipment is and will remain free from all liens, claims,
security interests and encumbrances;
10.2 no financing statement covering the Eligible Inventory and Eligible
Equipment or any proceeds thereof is on file in favor of anyone other than
CIT, but if such other financing statement is on file, it will be
terminated or subordinated in a manner satisfactory to CIT;
10.3 all information supplied and statements made by the Company in any
financial, credit or accounting statement or application for credit prior
to, contemporaneously with or subsequent to the execution of this
Agreement, are and shall be true, correct, valid and genuine;
10.4 the Company has full authority to enter into and to perform under 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 Agreement
binding upon it; and
10.5 this Agreement has been duly executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company that is
enforceable against it in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy or other similar laws affecting
the rights of creditors generally.
11. COMPANY'S AGREEMENTS.
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The Company agrees:
11.1 to defend at Company's own cost any action, proceeding, or claim affecting
the Eligible Inventory and Eligible Equipment;
11.2 to pay reasonable attorneys' fees and other expenses incurred by CIT in
enforcing its rights and remedies under this Agreement;
11.3 to pay promptly all taxes, assessments, license fees and other public or
private charges when levied or assessed against the Eligible Inventory and
Eligible Equipment of this Agreement;
11.4 that, if any item of Eligible Inventory and Eligible Equipment is a motor
vehicle or other property for which a certificate of title is required or
permitted by law, Company shall obtain such certificate with respect to
the Eligible Inventory and Eligible Equipment showing the security
interest of CIT thereon and in any event shall do everything necessary or
expedient to preserve or perfect the security interest of CIT;
11.5 that the Company will not misuse, fail to keep in good repair, secrete, or
without the prior written consent of CIT, sell, rent, lend, encumber or
transfer any of the Eligible Inventory and Eligible Equipment
notwithstanding CIT's right to proceeds;
11.6 that CIT may, at any reasonable time, enter upon the Company's premises or
wherever any of the Eligible Inventory and Eligible Equipment may be
located, inspect the Eligible Inventory and Eligible Equipment and/or the
Company's books and records pertaining to the Eligible Inventory and
Eligible Equipment, and Company shall assist CIT in making such
inspection;
11.7 that the security interest granted by the Company to CIT shall continue to
be effective as long as there are any Obligations owned by the Company to
CIT or this Agreement shall remain in effect.
11.8 to preserve and maintain its corporate existence and good standing in the
jurisdiction of its incorporation, and qualify and remain qualified as a
foreign corporation in each jurisdiction in which such qualification is
required; and
12. INSURANCE AND RISK OF LOSS.
All risk of loss, damage to or destruction of the Eligible Inventory and
Eligible Equipment shall at all times be on the Company. The Company will
procure forthwith and maintain at the Company's expense insurance against all
risks of loss or physical damage to the Eligible Equipment for the full
insurable value thereof for the like of this Agreement plus breach of warranty
insurance and such other insurance thereon in amounts and against such risks as
CIT may specify, and shall promptly deliver each policy to CIT with a standard
long-form mortgagee endorsement attached thereto showing loss payable to CIT;
and providing CIT with not less than 30 days written notice of cancellation;
each policy shall be in form, terms and amount and with insurance carriers
satisfactory to CIT; CIT's acceptance of policies in lesser amounts or risks
shall not be a waiver of the Company's foregoing obligations. As to CIT's
interest in such policy, no act or omission of the Company or any of its
officers, agents, employees or representatives shall affect the obligations of
the insurer to pay the full amount of any loss.
The Company hereby assigns to CIT any monies which may become payable under any
such policy of insurance and irrevocably constitutes and appoints CIT as the
Company'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 Eligible Equipment including returned or unearned premiums, and (d) to
endorse the Company'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 owning to CIT; provided,
however, CIT is under no obligation to do any of the foregoing.
Should the Company fail to furnish such insurance policy to CIT, or to maintain
such policy in full force, or to pay any premium in whole or in part relating
thereto, then CIT, without waiving or raising any default or obligation by the
Company, may (but shall be under no obligation to) obtain and maintain insurance
and pay the premium therefor on behalf of the Company and charge the premium to
the Company's indebtedness under this Agreement. The full amount of any such
premium paid by CIT shall be payable by the Company upon demand, and failure to
pay same shall constitute an event of default under this Agreement.
13. FINANCIAL REPORTS.
The Company agrees that, until the Loans have been paid in full, it will furnish
CIT:
(a) within 90 days after the end of each fiscal year of the Company,
a balance sheet of the Company as at the end of such fiscal year and
statements of profit and loss and surplus, all prepared in accordance
with generally accepted principles and practices of accounting
consistently applied, and certified by independent certified public
accountants selected by the Company and satisfactory to CIT;
(b) within 60 days after the end of each of the first three quarters
of each fiscal year of the Company, a balance sheet of the Company as
at the end of such quarter and statements of profit and loss and
surplus for such period, all prepared in accordance with generally
accepted principles and practices of accounting consistently applied
and certified by the chief financial officer or the principal
accounting officer of the Company; and
(c) form time to time, such further information regarding the
business affairs and financial condition of the Company as CIT may
reasonably require.
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14. EVENTS OF DEFAULT.
The occurrence of any of the following events shall constitute an "Event of
Default":
14.1 the Company fails to pay any Obligation when due and payable (whether due
at scheduled maturity, required prepayment, acceleration or otherwise);
14.2 the Company fails or neglects to perform, keep or observe any term,
provision, condition, covenant, representation or warranty contained in
this Agreement or in any other present or future agreement between the
Company and CIT;
14.3 the Company becomes insolvent or ceases to do business as a going concern;
14.4 the filing by or against the Company of any petition or complaint or the
commencement of any case under any provision of the Federal bankruptcy
laws or the Company admits its inability to pay or fails to pay its debts
generally as they mature;
14.5 the Company makes an assignment for the benefit of creditors, its property
is attached or a receiver is appointed for the Company or any other
insolvency proceedings as instituted by or against the Company;
14.6 whenever CIT, in good faith, believes the prospect of payment or
performance is impaired or in good faith believes that the Eligible
Inventory and Eligible equipment is not adequate security for the
Obligations or in good faith otherwise deems itself to be insecure;
14.7 any information furnished by or on behalf of the Company relating to the
Eligible Inventory and Eligible Equipment or the financial condition or
business affairs of the Company is determined by CIT to be false or
misleading in any material respect;
14.8 any guarantor dies or defaults in the payment or performance of any
Obligation to CIT or any guaranty obtained in connection with this
Agreement ceases to be in full force and effect; or
14.9 a surety, bonding company or guarantor takes over the Company's
performance of any job contracted by the Company.
The Company shall not be deemed in default pursuant to the preceding paragraphs
14.1, 14.2, 14.6, 14.7, 14.8 and 14.9 unless or until CIT has provided the
Company with prior written notice of default and allowed the Company ten (10)
days from the date of receipt of such notice to cure the alleged default.
15. ACCELERATION OF OBLIGATIONS AND REMEDIES.
15.1 Upon the occurrence of an Event of Default and the lapse of the ten (10)
day cure period if pertinent, the outstanding balance owing under this
Agreement and all other Obligations shall, if CIT shall so elect, become
immediately due and payable without notice to or demand upon the Company
of any kind and the Loans shall bear interest at the same rate as before
maturity until paid in full. In no event shall the Company, upon
acceleration of the maturity of the Obligations by CIT, or otherwise, be
required to pay any interest in excess of the maximum amount permitted by
law. Any acceleration of the Obligations, if elected by CIT, shall be
subject to all applicable laws, including laws as to rebates and refunds
of unearned charges.
15.2 Upon the occurrence of an Event of Default and the lapse of the ten (10)
days cure period if pertinent and at any time thereafter, CIT 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 Eligible Inventory and
Eligible Equipment for which deficiency Company hereby agrees to remain
fully liable. The Company agrees that CIT, 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 the Company or any agent of the Company
where the Eligible Inventory and Eligible Equipment may be or where CIT
believes the Eligible Inventory and Eligible Equipment may be, and
disassemble, render unusable and/or repossess all or any item of the
Eligible Inventory and Eligible Equipment, and disconnect and separate all
Eligible Inventory and Eligible Equipment from any other property. The
Company expressly waives all further rights to possession of the Eligible
Inventory and Eligible Equipment after default and all claims for injuries
suffered through the loss caused by such entering and/or repossession. CIT
may require the Company to assemble the Eligible Inventory and Eligible
Equipment and return it to CIT at a place to be designated by CIT which is
reasonably convenient to both parties. CIT will give the Company
reasonable notice of the time and place of any public sale of the Eligible
Inventory and Eligible Equipment or of the time after which any private
sale or any other intended disposition of the Eligible Inventory and
Eligible Equipment 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 the Company shown herein at least 10
days before the time of the sale or disposition. The proceeds of any such
sale or other disposition of the Eligible Inventory and Eligible Equipment
shall be applied first to the payment of all expenses of retaking,
holding, storing and preparing for sale, selling and the like, next to the
payment of reasonable attorneys' fees and other legal expenses incurred by
CIT in connection with enforcing any of its rights under this Agreement
and then to the payment of the Obligations in such order as CIT, in its
sole discretion, may elect. All of CIT's rights are cumulative and not
alternative.
16. WAIVER OF DEFAULTS; AGREEMENT INCLUSIVE.
CIT may in its sole discretion waive a default, or cure, at the Company's
expense, a default. Any such waiver in a particular instance or of an 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 Agreement or any related note,
instrument or agreement shall bind CIT unless such changes or modifications
shall be in writing signed by CIT. No oral agreement shall be binding on either
party.
2101 (8/99) Non Standard Revolving Loan Agreement -
Single Advance Rate Page 6 of 9
17. FINANCING STATEMENTS; CERTAIN EXPENSES.
If permitted by law, the Company authorizes CIT to file financing statement with
respect to the Eligible Inventory and Eligible Equipment signed only by CIT and
to file a carbon, photograph or other reproduction of this Agreement or of
financing statement. At the request of CIT, the Company will execute any
financing statements, agreements or documents, in the form satisfactory to CIT
which CIT may deem necessary or advisable to establish and maintain a perfected
security interest in the Eligible Inventory and Eligible Equipment, and will pay
the cost of filing or recording the same in all public offices deemed necessary
or advisable by CIT. The Company also agrees to pay all costs and expenses
incurred by CIT in conducting UCC, tax or other lien searches against the
Company or the Eligible Inventory and Eligible Equipment and such other fees as
may be agreed. The Company will reimburse CIT for all out-of-pocket expenses
incurred by CIT for any appraisals of equipment and changes made by anyone other
than members of CIT's own staff in connection with the processing of the
Company's Loan application.
18. GUARANTIES.
At, or prior to the making of the initial loan hereunder, the Company will
furnish or cause to be furnished to CIT, an unconditional guaranty of the
payment and performance of the Company's Obligations, in form and substance
satisfactory to CIT, from
Meadow Valley Corporation
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19. APPROVAL OF DOCUMENTATION.
All documentation and other matters relating to the transactions contemplated by
this Agreement, including but not limited to the validity and enforceability of
the guaranties, the first priority security interest in CIT's favor on the
property described in Schedule A, and any releases or subordinations covering
such property, shall be satisfactory and acceptable to CIT and its counsel prior
to disbursements of any and all Loans hereunder.
20. LATE CHARGES.
Any payment not made when due shall, at the option of CIT, 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.
21. INVENTORY REPORTS; ASSIGNMENTS OF RECEIVABLES.
In furtherance of the continuing assignment and security interest herein
contained, the Company will execute and make available to CIT from time to time
in such form and manner and with such frequency as may be required by CIT,
solely for CIT's convenience in maintaining a record of Eligible Inventory and
Eligible Equipment, such confirmatory inventory reports and confirmatory
assignments of Receivables, designating, identifying or describing the Eligible
Inventory and Eligible Equipment and copies of invoices to customers, agreements
of any kind with its customers, copies of suppliers' invoices, evidence of
shipment and delivery and such further documentation and information relating to
the Eligible Inventory and Eligible Equipment as CIT may require, provided,
however, that if the Company should fail to execute and deliver such reports or
assignments, such failure shall not affect, diminish, modify or otherwise limit
CIT's security interest in all present and future inventory and Receivables of
the Company and the proceeds thereof. The Company will furnish to Company within
thirty (30) days after the end of each month, an aging report of the Company's
customers and amounts owing, prepared as at the end of such month end. The
Company agrees to advise CIT promptly of any substantial change relating to the
type, quantity or quality of Eligible Inventory and Eligible Equipment or of any
event which would have a material effect on the value of the Eligible Inventory
and Eligible Equipment or on the security interest granted to CIT therein.
22. CONDITIONS PRECEDENT
The making of any Loan hereunder at any time by CIT in its sole discretion is
subject, among other things, to compliance in full by the Company with all of
the terms and provisions of this Agreement, as at any time amended, and to the
further condition that at the time of the proposed making of any such Loan there
shall have been no material adverse changes in the financial condition or
business of the Company, and that no Event of Default, and no event which with
the lapse of time or the notice and lapse of time specified for the purpose of
constituting such an Event of Default, has occurred and is continuing at the
time of such proposed Loan.
23. ADDITIONAL COVENANTS OF THE COMPANY.
See attached Financial Report Covenant Rider consisting of one (1) page attached
hereto and made a part hereof.
24. NOTICES.
Any notice or request required or permitted to be given under this Agreement
shall be sufficient if in writing and sent by hand or by Certified Mail, in
either case return receipt requested, to the parties at the following addresses,
or at such other address as to which either party shall notify the other in
writing:
The CIT Group/Equipment Financing, Inc.
0000 Xxxx Xxxxxxxxxxxx Xxxx.
Xxxxx, XX 00000
2101 (8/99) Non Standard Revolving Loan Agreement -
Single Advance Rate Page 7 of 9
Attn: Xxxxxx Xxxxxxx
Ready Mix, Inc.
0000 X. Xxxxxxxx Xx. #000
Xxx Xxxxx, XX 00000-0000
Attn: Xxx Xxxxxx
25. MISCELLANEOUS.
Any provisions hereof contrary to, prohibited by or invalid under applicable
laws or regulations shall be inapplicable and deemed omitted here from, but
shall not invalidate the remaining provisions hereof. If the Company is a
corporation, the Company represents that this Agreement is executed pursuant to
the authority of its Board of Directors. The Company and CIT 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 Agreement shall be binding upon and
inure to the benefit of the Company and CIT and their respective successors and
assigns, except that the Company may not assign or transfer any of its rights
under this Agreement without the prior written consent of CIT. Section headings
are included in this Agreement for convenience of reference only and shall not
constitute a part of the Agreement for any other purpose.
If at any time this transaction would be usurious under applicable law, then
regardless of any provision contained in this 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
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 Company; and
(b) if CIT elects to accelerate the maturity of, or if CIT permits the
Company 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 Agreement or otherwise, shall
be credited to the Company automatically as of the date of
acceleration or prepayment.
26. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with, the law
of the State of Arizona.
27. SPECIAL PROVISIONS. (SEE SPECIAL PROVISIONS INSTRUCTIONS BELOW.)
See Exhibit "A" consisting of one (1) page attached hereto and made a part
hereof.
See Rider "A" consisting of one (1) page attached hereto and made a part
hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date shown below.
DATED: 7/27/01
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By [ILLEGIBLE] Title V.P.
----------------------- ---------------------
X.X. Xxx 00000
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Address
Tempe AZ 85285-7248
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City State Zip Code
Ready Mix, Inc.
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Company
2101 (8/99) Non Standard Revolving Loan Agreement -
Single Advance Rate Page 8 of 9
By /s/ Xxxxxxx X. Xxxxxx Title Vice President
----------------------- ---------------------
Xxxxxxx X. Xxxxxx
0000 X. Xxxxxxxx Xx #000
---------------------------------------------------------------------------
Principal Place of Business
Xxx Xxxxx XX 00000-0000
---------------------------------------------------------------------------
City State Zip Code
--------------------------------------------------------------------------------
SPECIAL PROVISIONS INSTRUCTIONS - The notations to be entered in the Special
Provisions section of this document for use in ALABAMA, FLORIDA, GEORGIA, IDAHO,
NEVADA, NEW HAMPSHIRE, OREGON, SOUTH DAKOTA and WISCONSIN are shown in the
applicable State pages of the Loans and Motor Vehicles Manual
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2101 (8/99) Non Standard Revolving Loan Agreement -
Single Advance Rate Page 9 of 9
EXHIBIT "A"
TO
REVOLVING LOAN AGREEMENT
DEBTOR: SECURED PARTY:
Ready Mix, Inc. The CIT Group/Equipment Financing, Inc.
0000 X Xxxxxxxx Xx #000 X.X. Xxx 00000
Xxx Xxxxx, XX 00000-0000 Xxxxx, XX 00000-0000
Description of Collateral:
-------------------------
All of the Debtor's property, or interests in property, whether now owned or
existing or hereafter acquired or arising and wheresoever located, whether
tangible or intangible, including without limitation, all of Debtor's accounts,
inventory, goods, furniture, machinery, equipment, fixtures, investment
property, general intangibles (including, without limitation, goodwill,
inventions, designs, patents, patent applications, trademarks, trademark
applications, service marks, trade names, licenses, leasehold interests in real
and personal property, franchises, tax refund claims, and guarantee claims,
security interests or other security held by or granted to Debtor to secure
payment of Debtor's accounts, investment property, general intangibles,
instruments, and notes), tax refunds, chattel paper, contract rights,
instruments, documents, notes, returned and repossessed goods, together with all
accessions to, substitutions for, and all replacements, products and proceeds of
the foregoing (including, without limitation, proceeds of insurance policies
insuring any of the foregoing), all books and records (including, without
limitation, customers lists, credit files, computer programs, printouts and
other computer materials and records) pertaining to any of the foregoing, and
all insurance policies insuring any of the foregoing.
Date: July 27, 2001
---------------
Ready Mix, Inc.
By: /s/ Xxxxxxx X. Xxxxxx Title: Vice President
------------------------ ---------------
Name: Xxxxxxx X. Xxxxxx
FINANCIAL COVENANT RIDER
Attached to and by this reference made a part of the Guaranty of Ready Mix, Inc.
dated July 27, 2001, wherein Meadow Valley Corporation is the Guarantor.
Guarantor covenants and agrees that:
(1) during the term of this agreement, it will provide to The CIT
Group/Equipment Financing, Inc. ("CIT"), within 45 days of each semi-annual
period and within 90 days of each fiscal year end, a balance sheet and
income statement of Guarantor, prepared in accordance with generally
accepted accounting principles consistently applied, prepared by its
independent certified public accountants.
(2) at all times during the Guarantor's fiscal year 2001, the Guarantor's
Tangible Net Worth will not be less than $11,600,000.00. For each fiscal
year thereafter, the Guarantor's Tangible Net Worth shall not be less than
the minimum Tangible Net Worth required to be maintained in the previous
fiscal year plus 50% of the Guarantor's net income after taxes for the
previous fiscal year. The minimum Tangible Net Worth required to be
maintained pursuant to this section shall not be decreased if in any fiscal
year the Guarantor has a deficit net income after taxes.
(3) At all times during the term of this agreement, it will maintain a ratio of
Total Debt to Tangible Net Worth of no more than 5.0:1.
Meadow Valley Corporation
By /s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
Title President
--------------------------
