Exhibit 10.4 (b)
DISBURSEMENT REQUEST AND AUTHORIZATION
----------- ----------- ------------ ------------ ------------ -------------- ----------- -----------
Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$150,000 11-13-2004 03-31-2005 0000000026 0001 1000501525 N8U
----------- ----------- ------------ ------------ ------------ -------------- ----------- -----------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
-----------------------------------------------------------------------------------------------------
Borrower: Transbotics Corporation (TIN: 00-0000000) Lender: SouthTrust Bank
0000 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxx - Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX
=====================================================================================================
LOAN TYPE. This is a Variable Rate Nondisclosable Revolving Line of Credit Loan
to a Corporation for $150,000.00 due on November 11, 2004. The reference rate
("base rate". The term "base rate" means the rate of interest designated by the
Lender periodically as its Base Rate, currently 4.000%) is added to the margin
of 1.500%, resulting in an initial rate of 5.500.
PRIMARY PURPOSE OF LOAN. The primary purpose of this loan is for (please
initial):
|_| Personal, Family, or Household Purposes or Personal Investment.
----------
|_| Business (Including Real Estate Investment).
----------
SPECIFIC PURPOSE. The specific purpose of this loan is: WORKING CAPITAL.
DISBURSEMENT INSTRUCTIONS. Xxxxxxxx understands that no loan proceeds will be
disbursed until all of Xxxxxx's conditions for making the loan have been
satisfied. Please disburse the loan proceeds of $150,000.00 as follows:
Undisbursed Funds: $150,000.00
-----------------
Note Principal: $150,000.00
CHARGES PAID IN CASH. Xxxxxxxx has paid or will pay in cash as agreed the
following charges:
Prepaid Finance Charges Paid in Cash: $ 0.00
Other Charges Paid in Cash: $ 2,034.38
$150.00 LIEN SEARCH FEE $ 534.38 Interest Due loan
#1000501525-26 $1350.00 COMMITMENT FEE - UP FRONT
-----------------
Total Charges Paid in Cash: $ 2,034.38
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, XXXXXXXX REPRESENTS AND
WARRANTS TO LENDER THAT THE INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND
THAT THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN BORROWER'S FINANCIAL CONDITION
AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO XXXXXX. THIS
AUTHORIZATION IS DATED NOVEMBER 13, 2003.
BORROWER:
TRANSBOTICS CORPORATION
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------------------
Xxxxxx Xxxxxxx
President, CEO & CFO of Transbotics Corporation
================================================================================
PROMISSORY NOTE
----------- ----------- ------------ ------------ ------------ -------------- ----------- -----------
Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$150,000 11-13-2004 03-31-2005 0000000026 0001 1000501525 N8U
----------- ----------- ------------ ------------ ------------ -------------- ----------- -----------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
-----------------------------------------------------------------------------------------------------
Borrower: Transbotics Corporation (TIN: 00-0000000) Lender: SouthTrust Bank
0000 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxx - Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX
=====================================================================================================
Principal Amount: $150,000.00 Initial Rate: 6.500% Date of Note:
November 24, 2004
PROMISE TO PAY. Transbotics Corporation ("Borrower") promises to pay SouthTrust
Bank ("Lender"), or order, in lawful money of the United States of America, the
principal amount of One Hundred Fifty Thousand & 00/100 Dollars ($150,000.00),
or so much as may be outstanding, together with interest on the unpaid
outstanding principal balance of each advance. Interest shall be calculated from
the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding principal
plus all accrued unpaid interest on November 11, 2004. In addition, Borrower
will pay regular monthly payments of all accrued unpaid interest due as of each
payment date, beginning December 11, 2003, with all subsequent interest payments
to be due on the same day of each month after that. Unless otherwise agreed or
required by applicable law, payments will be applied first to any accrued unpaid
interest; then to principal; then to any unpaid collection costs; and then to
any late charges. The annual interest rate for this Note is computed on a
365/360 basis; that is, by applying the ratio of the annual interest rate over a
year of 360 days, multiplied by the outstanding principal balance, multiplied by
the actual number of days the principal balance is outstanding. Borrower will
pay Lender at Xxxxxx's address shown above or at such other place as Lender may
designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an index which is the "base rate". The term
"base rate" means the rate of interest designated by the Lender periodically as
its Base Rate (the "Index"). The Index is not necessarily the lowest rate
charged by Lender on its loans and is set by Lender in its sole discretion. If
the Index becomes unavailable during the term of this loan, Lender may designate
a substitute index after notifying Borrower. Lender will tell Borrower the
current Index rate upon Xxxxxxxx's request. The interest rate change will not
occur more often than each day. The frequency of the rate change is further
defined below in paragraph titled "VARIABLE RATE CHANGE FREQUENCY". Borrower
understands that Lender may make loans based on other rates as well. The Index
currently is 4.000% per annum. The interest rate to be applied to the unpaid
principal balance of this Note will be at a rate of 1.500 percentage points over
the Index, resulting in an initial rate of 5.500% per annum. NOTICE: Under no
circumstances will the interest rate on this Note be more than the maximum rate
allowed by applicable law.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed
earlier that it is due. Early payments will not, unless agreed to by Xxxxxx in
writing, relieve Xxxxxxxx of Xxxxxxxx's obligation to continue to make payments
of accrued unpaid interest. Rather, early payments will reduce the principal
balance due. Xxxxxxxx agrees not to send Lender payments marked "paid in full",
"wthout recourse", or similar language. If Borrower sends such a payment, Xxxxxx
may accept it without losing any of Xxxxxx's rights under this Note, and
Borrower will remain obligated to pay any further amount owed to Lender. All
written communications concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes "payment in full"
of the amount owed or that is tendered with other conditions or limitations or
as full satisfaction of a disputed amount must be mailed or delivered to:
SouthTrust Bank, Commercial Loans Charlotte, Charlotte, NC.
LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged
4.000% of the unpaid portion of the regularly scheduled payment or $10.00,
whichever is greater. This late charge shall be paid to Lender by Borrower to
compensate Lender for Xxxxxx's extra costs and expenses caused by the late
payment.
INTEREST AFTER DEFAULT. Upon Default, including failure to pay upon final
maturity, at Xxxxxx's option, and if permitted by applicable law, Lender may add
any unpaid accrued interest to principal and such sum will bear interest
therefrom until paid at the rate provided in this Note. Upon default, the total
sum due under this Note will bear interest from the date of acceleration or
maturity at the variable interest rate on this Note. The interest rate will not
exceed the maximum rate permitted by applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Note:
Payment Default. Borrower fails to make any payment when due under this Note.
Other Defaults. Borrower fails to comply with or to perform any other term,
obligation, covenant or condition contained in this note or in any of the
related documents or to comply with or to perform any term, obligation,
covenant or condition contained in any other agreement between Lender and
Borrower.
Default in Favor of Third Parties. Borrower or any Grantor defaults under any
loan, extension of credit, security agreement, purchase or sales agreement,
or any other agreement, in favor of any other creditor or person that may
materially affect any of Borrower's property or Borrower's ability to repay
this Note or perform Borrower's obligations under this Note or any of the
related documents.
False Statements. Any warranty, representation or statement made or furnished
to Lender by Borrower or on Borrower's behalf under this Note or the related
documents is false or misleading in any material respect, either now or at
the time made or furnished or becomes false or misleading at any time
thereafter.
Insolvency. The dissolution or termination of Xxxxxxxx's existence as a going
business, the insolvency of Xxxxxxxx, the appointment of a receiver for any
part of Xxxxxxxx's property, any assignment for the benefit of creditors, any
type of creditor workout, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help repossession or any
other method, by any creditor or Borrower or by any governmental agency
against any collateral securing the loan. This includes a garnishment of any
of Xxxxxxxx's accounts, including deposit accounts, with Lender. However,
this Event of Default shall not apply if there is a good faith dispute by
Xxxxxxxx as to the validity or reasonableness of the claim which is the basis
of the creditor or forfeiture proceeding and if Borrower gives Xxxxxx written
notice of the creditor or forfeiture proceeding and deposits with Lender
monies or a surety bond for the creditor or forfeiture proceeding, in an
amount determined by Lender, in its sole discretion, as being an adequate
reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect
to any guarantor, endorser, surety, or accommodation party of any of the
indebtedness or any guarantor, endorser, surety or accommodation party dies
or becomes incompetent, or revokes or disputes the validity of, or liability
under, any guaranty of the indebtedness evidenced by this Note. In the event
of a death, Lender, at its option, may, but shall not be required to, permit
the guarantor's estate to assume unconditionally the obligations arising
under the guaranty in a manner satisfactory to Lender, and in doing so, cure
any Event or Default.
Change in Ownership. Any change in ownership of twenty-five percent (25%) or
more of the common stock of the Borrower.
Adverse Change. A material adverse change occurs in Borrower's financial
condition, or Xxxxxx believes the prospect of payment or performance of this
Note is impaired.
Insecurity. Lender in good faith believes itself insecure.
Cure Provisions. If any default, other than a default in payment is curable
and if Borrower has not been given a notice of a breach of the same provision
of this Note within the preceding twelve (12) months, it may be cured (and no
event of default will have occurred) if Borrower, after receiving written
notice from Lender demanding cure of such default: (1) cures the default
within fifteen (15) days; or (2) if the cure requires more than fifteen (15)
days, immediately initiates steps which Lender deems in Xxxxxx's sole
discretion to be sufficient to cure the default and thereafter continues and
completes all reasonable and necessary steps sufficient to produce compliance
as soon as reasonable practical.
LENDER'S RIGHTS. Upon default, Xxxxxx may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, and then
Borrower will pay that amount.
PROMISSORY NOTE
Loan No: 0000000026 (Continued) Page 2
================================================================================
ATTORNEY'S FEES; EXPENSES. Lender may hire or pay someone else to help collect
this Note if Borrower does not pay. Borrower will pay Lender that amount. This
includes, subject to any limits under applicable law, Xxxxxx's attorneys' fees
and Xxxxxx's legal expenses, whether or not there is a lawsuit, including
attorneys' fees, expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), and appeals. If not
prohibited by applicable law, Xxxxxxxx also will pay any court costs, in
addition to all other sums provided by law.
GOVERNING LAW. This Note will be governed by, construed and enforced in
accordance with federal law and the laws of the State of North Carolina. This
Note has been accepted by Xxxxxx in the State of North Carolina.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower may open in
the future. However, this does not include any IRA or Xxxxx accounts, or any
trust accounts for which setoff would be prohibited by law. Borrower authorizes
Xxxxxx, to the extent permitted by applicable law, to charge or setoff all sums
owing on the indebtedness against any and all such accounts, and, at Xxxxxx's
option, to administratively freeze all such accounts to allow Lender to protect
Xxxxxx's charge and setoff rights provided in this paragraph.
COLLATERAL. Borrower acknowledges this Note is secured by any and all Commercial
Security Agreements covering a Blanket Lien on all Business Assets of Debtor.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under
this Note, as well as directions for payment from Xxxxxxxx's accounts, may be
requested orally or in writing by Borrower or by an authorized person. Lender
may, but need not, require that all oral requests be confirmed in writing.
Xxxxxxxx agrees to be liable for all sums either: (A) advanced in accordance
with the instructions of an authorized person or (B) credited to any of
Xxxxxxxx's accounts with Xxxxxx. The unpaid principal balance owing on this Note
at any time may be evidenced by endorsements on this Note or by Xxxxxx's
internal records, including daily computer print-outs. Lender will have no
obligation to advance funds under this Note if: (A) Borrower or any guarantor is
in default under the terms of this Note or any agreement that Borrower or any
guarantor has with Lender, including any agreement made in connection with the
signing of this Note; (B) Borrower or any guarantor ceases doing business or is
insolvent; (C) any guarantor seeks, claims or otherwise attempts to limit,
modify or revoke such guarantor's guarantee of this Note or any other loan with
Lender; (D) Borrower has applied funds provided pursuant to this Note for
purposes other than those authorized by Lender; or (E) Lender in good faith
believes itself insecure.
FIANACIAL STATEMENTS. Until this loan is paid in full, Borrower will furnish to
Lender, as soon as available but in any event within 120 days after the end of
each fiscal year, Borrower's balance sheet and statements of income, cash flows
and changes in capital for the fiscal year just ended, setting forth in
comparative form the corresponding figures for the prior year, together with
accompanying schedules and footnotes. If the financial statements were compiled
or certified by a public accountant, Borrower will also furnish Lender the
accountant's letter accompanying the financial statements. Borrower will furnish
to Lender, as soon as available but in any event within 30 days after the end of
the first three quarters of Xxxxxxxx's fiscal year, Xxxxxxxx's balance sheet and
profit and loss statement for the quarter just ended. All financial reports
provided to Xxxxxx will be certified in writing by the chief executive officer,
chief financial officer, managing partner or comparable financial officer of
Borrower to be true and complete to the best of his or her knowledge and belief
and to have been prepared in accordance with generally accepted accounting
principles applied on a basis consistent with the financial statements
previously furnished to Lender or, if not so prepared, setting forth the manner
in which the financial statements depart therefrom. Borrower will furnish
Lender, within 30 days after Xxxxxx's request therefore, a copy of the federal
income tax return most recently filed by Xxxxxxxx. Borrower will cause each
guarantor or endorser of this loan to furnish to Lender, within 30 days after
Xxxxxx's request therefore, a current financial statement of such guarantor or
endorser in form acceptable to Lender and a copy of the federal income tax
return most recently filed by such guarantor or endorser.
OBLIGATION TO DEVELOP BUSINESS PLAN. Before approving this loan, Xxxxxx required
Borrower to furnish Lender with financial statements and other information
concerning the financial history and future prospects of Xxxxxxxx's business.
Xxxxxx requested and reviewed that information solely to enable it to make a
decision whether to extend credit. Borrower understands that Xxxxxx has not
necessarily approved Xxxxxxxx's business plan and has not undertaken any duty or
obligation to advise Borrower on business matters now or in the future. Xxxxxx
is not a financial or business advisor, and Borrower will not look to Lender for
business advice. Xxxxxx's role is solely that of a Xxxxxx, and Xxxxxxxx's
relationship with Xxxxxx is that of debtor and creditor. Xxxxxx expressly
disclaims any fiduciary or other duties or obligations to Borrower except those
expressly provided in the written loan documents signed by Xxxxxx.
NO ORAL AGREEMENTS. Xxxxxx's agreement to Xxxx, Xxxxxxxx's obligation to repay
the loan, and all other agreements between Lender and Borrower have been reduced
to writing. This instrument and the other documents signed concurrently with it
contain the entire agreement between Lender and Borrower. Any prior
conversations and discussions that Xxxxxx or Borrower may have had concerning
the transaction are not binding unless reflected in the written loan documents.
Xxxxxxxx acknowledges that the loan documents reflect everything the Lender has
agreed to do or not to do in connection with this transaction.
COMMERCIAL PURPOSES. Borrower intends to use the loan proceeds solely for
business or commercial related purposes and under no circumstances will such
proceeds be used for personal, family or household purposes.
ANNUAL THIRTY (30) DAY "CLEAN-UP". A condition of this loan is that draws and
balances are subject to a thirty (30) day annual "clean-up" wherein the entire
outstanding balance must be paid in full and result in a zero balance for at
least a consecutive thirty (30) day period during the term of the loan.
VARIABLE RATE FREQUENCY. The interest rate change will occur each day the Index
Rate changes. This change will not occur more often than once each day.
FAILURE OR REFUSAL TO FURNISH FINANCIAL INFORMATION. If any Borrower or
Guarantor or Endorser fails or refuses to furnish financial information to the
Lender under the terms of this Note or any other Agreement with the Lender which
requires the furnishing of financial information, the Lender, without waiving
its right to treat such failure or refusal as a default under this Note, may
give written notice to Borrower that the Lender has not received the required
financial information and that the Lender intends to increase the interest rate
under this Note if the required information is not received within thirty (30)
days after the date of the notice. If the required information is not received
by the Lender within thirty (30) after the date of the notice, at the Lender's
option, the rate of interest payable under this Note will increase by one
percent (1%) per annum. At the Lender's option, the rate of interest payable
under this Note will increase by an additional one percent (1%) per annum each
thirty (30) days until the required financial information is received by the
Lender, subject to a maximum increase of four percent (4%) per annum under the
provisions of this paragraph. Any such increase(s) in the rate of interest will
remain in effect until thirty (30) days after the required information is
received by the Lender.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Xxxxxxxx, and
upon Xxxxxxxx's heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender and its successors and assigns.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES.
Please notify us if we report any inaccurate information about your account(s)
to a consumer reporting agency. Your written notice describing the specific
inaccuracy(ies) should be sent to us at the following address: SouthTrust Bank,
Commercial Loans - Charlotte, Charlotte, NC.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any change in the
terms of this Note, and unless otherwise expressly stated in writing, no party
who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and for any length of time) this loan or release
any party or guarantor or collateral; or impair, fail to realize upon or perfect
Xxxxxx's security interest in the collateral; and take any other action deemed
necessary by Xxxxxx without the consent of or notice to anyone. All such parties
also agree that Xxxxxx may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made. The obligations
under this Note are joint and several.
PROMISSORY NOTE
Loan No: 0000000026 (Continued) Page 3
================================================================================
PRIOR TO SIGNING THIS NOTE, XXXXXXXX READ AND UDNERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. XXXXXXXX AGREES TO
THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
TRANSBOTICS CORPORATION
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------------------
Xxxxxx Xxxxxxx
President, CEO & CFO of Transbotics Corporation
================================================================================
CORPORATE RESOLUTION TO BORROW / GRANT COLLATERAL
----------- ----------- ------------ ------------ ------------ -------------- ----------- -----------
Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$150,000 11-13-2004 03-31-2005 0000000026 0001 1000501525 N8U
----------- ----------- ------------ ------------ ------------ -------------- ----------- -----------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
-----------------------------------------------------------------------------------------------------
Borrower: Transbotics Corporation (TIN: 00-0000000) Lender: SouthTrust Bank
0000 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxx - Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX
=====================================================================================================
WE THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE CORPORATION'S EXISTENCE. The complete and correct name of the corporation is
Transbotics Corporation ("Corporation"). The Corporation is a corporation for
profit which is, and at all times shall be, duly organized, validly existing,
and in good standing under and by virtue of the laws of the State of Delaware.
The Corporation is duly authorized to transact business in the State of North
Carolina and all other states in which the Corporation is doing business, having
obtained all necessary filings, governmental licenses and approvals for each
state in which the Corporation is doing business. Specifically, the Corporation
is, and at all times shall be, duly qualified as a foreign corporation in all
states in which the failure to so qualify would have a material adverse effect
in its business or financial condition. The Corporation has the full power and
authority to own its properties and to transact the business in which it is
presently engaged or presently proposes to engage. The Corporation maintains an
office at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000. Unless the Corporation has
designated otherwise in writing, the principal office is the office at which the
Corporation keeps its books and records. The Corporation will notify Lender
prior to any change in the location of the Corporation's state of organization
or any change in the Corporation's name. The Corporation shall do all things
necessary to preserve and to keep in full force and effect its existence, rights
and privileges, and shall comply with all regulations, rules, ordinances,
statutes, orders and decrees of any governmental or quasi-governmental authority
or court applicable to the corporation and the Corporation's business
activities.
RESOLUTIONS ADOPTED. At a meeting of the Directors of the Corporation, or if the
Corporation is a close corporation having no Board of Directors then at a
meeting of the Corporation's shareholders, duly called and held on November 13,
2003, at which a quorum was present and voting, or by other duly authorized
action in lieu of a meeting, the resolutions set forth in this resolution were
adopted.
OFFICER. The following named person is an officer of Transbotics Corporation:
NAMES TITLES AUTHORIZED ACTUAL SIGNATURES
----- ------ ---------- -----------------
Xxxxxx Xxxxxxx President, CEO & CFO Y x /s/ Xxxxxx Xxxxxxx
---------------------------------------------
ACTIONS AUTHORIZED. The authorized person listed above may enter into any
agreements of any nature with Lender, and those agreements will bind the
Corporation. Specifically, but without limitation, the authorized person is
authorized, empowered, and directed to do the following for and on behalf of the
Corporation:
Borrow Money. To borrow, as a cosigner or otherwise, from time to time
from Lender, on such terms as may be agreed upon between the Corporation
and Lender, such sum or sums of money as in his or her judgment should be
borrowed, without limitation.
Execute Notes. To execute and deliver to Lender the promissory note or
notes, or other evidence of the Corporation's credit accommodations, on
Lender's forms, at such rates of interest and on such terms as may be
agreed upon, evidencing the sums of money so borrowed or any of the
Corporation's indebtedness to Lender, and also to execute and deliver to
Lender one or more renewals, extensions, modifications, refinancings,
consolidations, or substitutions for one or more of the notes, any portion
of the notes, or any other evidence of credit accommodations.
Grant Security. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender any property now or hereafter
belonging to the Corporation or in which the Corporation now or hereafter
may have an interest, including without limitation all of the
Corporation's real property and all of the Corporation's personal property
(tangible or intangible), as security for the payment of any loans or
credit accommodations so obtained, any promissory notes so executed
(including any amendments to or modifications, renewals, and extensions of
such promissory notes), or any other or further indebtedness of the
Corporation to Lender at any time owing, however the same may be
evidenced. Such property may be mortgaged, pledged, transferred, endorsed,
hypothecated or encumbered at the time such loans are obtained or such
indebtedness is incurred, or at any other time or times, and may be either
in addition to or in lieu of any property therefore mortgaged, pledged,
transferred, endorsed, hypothecated or encumbered.
Execute Security Documents. To execute and deliver to Lender the forms of
mortgage, deed of trust, pledge agreement, hypothecation agreement, and
other security agreements and financing statements which Lender may
require and which shall evidence the terms and conditions under and
pursuant to which such liens and encumbrances, or any of them, are given;
and also to execute and deliver to Lender any other written instruments,
any chattel paper, or any other collateral, of any kind or nature, which
Lender may deem necessary or proper in connection with or pertaining to
the giving of the liens and encumbrances.
Negotiate Items. To draw, endorse, and discount with Lender all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness
payable to or belonging to the Corporation or in which the Corporation may
have an interest, and either to receive cash for the same or to cause such
proceeds to be credited to the Corporation's account with Xxxxxx, or to
cause such other disposition of the proceeds derived therefrom as he or
she may deem advisable.
Further Acts. In the case of lines of credit, to designate additional or
alternate individuals as being authorized to request advances under such
lines, and in all cases, to do and perform such other acts and things, to
pay any and all fees and costs, and to execute and deliver such other
documents and agreements as the officer may in his or her discretion deem
reasonably necessary or proper in order to carry into effect the
provisions of this Resolution.
ASSUMED BUSINESS NAMES. The Corporation has filed or recorded all documents or
filings required by law relating to all assumed business names used by the
Corporation. Excluding the name of the Corporation, the following is a complete
list of all assumed business names under which the Corporation does business.
None.
NOTICES TO LENDER. The Corporation will promptly notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (A) change in the Corporation's name; (B) change
in the Corporation's assumed business name(s); (C) change in the management of
the Corporation; (D) change in the authorized signer(s); (E) change in the
Corporation's principal office address; (F) change in the Corporation's state of
organization; (G) conversion of the Corporation to a new or different type of
business entity; or (H) change in any other aspect of the Corporation that
directly or indirectly relates to any agreements between the Corporation and
Lender. No change in the Corporation's name or state of organization will take
effect until after Xxxxxx has received notice.
CERTIFICATION CONCERNING OFFICERS AND RESOLUTIONS. The officer named above is
duly elected, appointed, or employed by or for the Corporation, as the case may
be, and occupies the position set opposite his or her respective name. This
resolution now stands of record on the books of the Corporation, is in full
force and effect, and has not been modified or revoked in any manner whatsoever.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Resolution and
performed prior to the passage of this Resolution are hereby ratified and
approved. This resolution shall be continuing, shall remain in full force and
effect and Lender may rely on it until written notice of its revocation shall
have been delivered to and received by Lender at Xxxxxx's address shown above
(or such addresses as Lender may designate from time to time). Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
IN TESTIMONY WHEREOF, We have hereunto set our hand, affixed the seal of the
Corporation and attest that the signature set opposite the name listed above is
his or her genuine signature.
We have read all the provisions of this Resolution, and we each personally and
on behalf of the Corporation certify that all statements and representations
made in this Resolution are true and correct. This Corporate Resolution to
Borrow / Grant Collateral is dated November 13, 2003.
THIS RESOLUTION IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS RESOLUTION IS
AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO
LAW.
CORPORATE RESOLUTION TO BORROW / GRANT COLLATERAL
Loan No: 0000000026 (Continued) Page 2
================================================================================
CERTIFIED AND ATTESTED BY:
CORPORATE By: /s/ E Xxxxxx Xxxxxx (Seal)
------------------------------------------
SEAL
Authorized Signer for Transbotics Corporation
Note: If the officer signing this Resolution is designated by the foregoing
document as one of the officers authorized to act on the Corporation's behalf,
it is advisable to have this Resolution signed by at least one non-authorized
officer of the Corporation.
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COMMERCIAL SECURITY AGREEMENT
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Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$150,000 11-13-2004 03-31-2005 0000000026 0001 1000501525 N8U
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References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
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Borrower: Transbotics Corporation (TIN: 00-0000000) Lender: SouthTrust Bank
0000 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxx - Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX
=====================================================================================================
THIS COMMERCIAL SECURITY AGREEMENT dated November 13, 2003, is made and executed
between Transbotics Corporation ("Grantor") and SouthTrust Bank ("Lender").
GRANT OF SECURITY INTEREST. For valuable consideration, Grantor grants to Lender
a security interest in the Collateral to secure the Indebtedness and agrees that
Xxxxxx shall have the rights stated in this Agreement with respect to the
Collateral in addition to all other rights which Lender may have by law.
COLLATERAL DESCRIPTION. The word "Collateral" as used in this Agreement means
the following described property, whether now owned or hereafter acquired,
whether now existing or hereafter arising, and wherever located, in which
Grantor is giving to Lender a security interest for the payment of the
indebtedness and performance of all other obligations under the Note and this
Agreement:
All inventory, equipment, accounts (including but not limited to all
health-care-insurance receivables), chattel paper, instruments (including
but not limited to all promissory notes), letter-of-credit rights, letters
of credit, documents, deposit accounts, investment property, money, other
rights to payment and performance, and general intangibles (including but
not limited to all software and all payment intangibles); all attachments,
accessions, fittings, increases, tools, parts, repairs, supplies, and
commingled goods relating to the foregoing property, and all additions,
replacements of and substitutions for all or any part of the foregoing
property; all insurance refunds relating to the foregoing property; all good
will relating to the foregoing property; all records and data and embedded
software relating to the foregoing property, and all equipment, inventory
and software to utilize, create, maintain and process any such records and
data on electronic media; and all supporting obligations relating to the
foregoing property; all whether now existing or hereafter arising, whether
now owned or hereafter acquired or whether now or hereafter subject to any
rights in the foregoing property; and all products and proceeds (including
but not limited to all insurance payments) of or relating to the foregoing
property.
In addition, the word "Collateral" also includes all the following, whether now
owned or hereafter acquired, whether now existing or hereafter arising, and
wherever located:
(A) All accessions, attachments, accessories, tools, parts, supplies,
replacements of and additions to any of the collateral described herein,
whether added now or later.
(B) All products and produce of any of the property described in this
Collateral section.
(C) All accounts, general intangibles, instruments, rents, monies, payments,
and all other rights, arising out of a sale, lease, consignment or other
disposition of any of the property described in this Collateral section.
(D) All proceeds (including insurance proceeds) from the sale, destruction,
loss, or other disposition of any of the property described in this
Collateral section, and sums due from a third party who has damaged or
destroyed the Collateral or from that party's insurer, whether due to
judgment, settlement, or other process.
(E) All records and data relating to any of the property described in this
Collateral section, whether in the form of a writing, photograph,
microfilm, microfiche, or electronic media, together with all of
Grantor's right, title, and interest in and to all computer software
required to utilize, create, maintain, and process any such records or
data on electronic media.
Despite of any other provision of this Agreement, Lender is not granted, and
will not have, a nonpurchase money security interest in household goods, to the
extent such a security interest would be prohibited by applicable law. In
addition, if because of the type of any property, Lender is required to give a
notice of the right to cancel under Truth in Lending for the Indebtedness, the
Lender will not have a security interest in such collateral unless and until
such a notice is given.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Grantor's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Grantor may open in
the future. However, this does not include any IRA or Xxxxx accounts, or any
trust accounts for which setoff would be prohibited by law. Grantor authorizes
Xxxxxx, to the extent permitted by applicable law, to charge or setoff all sums
owing on the Indebtedness against any and all such accounts, and, at Xxxxxx's
option, to administratively freeze all such accounts to allow Lender to protect
Xxxxxx's charge and setoff rights provided in this paragraph.
XXXXXXX'S REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. With
respect to the Collateral, Grantor represents and promises to Lender that:
Perfection of Security Interest. Xxxxxxx agrees to execute financing
statements and to take whatever actions are requested by Xxxxxx to perfect
and continue Xxxxxx's security interest in the Collateral. Upon request of
Xxxxxx, Grantor will deliver to Lender any and all of the documents
evidencing or constituting the Collateral, and Grantor will note Xxxxxx's
interest upon any and all chattel paper if not delivered to Lender for
possession by Xxxxxx. This is a continuing Security Agreement and will
continue in effect even through all or any part of the Indebtedness is paid
in full and even though for a period of time Grantor may not be indebted to
Lender.
Notices to Lender. Grantor will promptly notify Lender in writing at
Xxxxxx's address shown above (or such other addresses as Lender may
designate from time to time) prior to any (1) change in Grantor's name; (2)
change in Grantor's assumed business name(s); (3) change in the management
of the Corporation Grantor; (4) change in the authorized signer(s); (5)
change in Grantor's principal office address; (6) change in Grantor's state
of organization; (7) conversion of Grantor to a new or different type of
business entity; or (8) change in any other aspect of Grantor that directly
or indirectly relates to any agreements between Grantor and Lender. No
change in Grantor's name or state of organization will take effect until
after Xxxxxx has received notice.
No Violation. The execution and delivery of this Agreement will not violate
any law or agreement governing Grantor or to which Grantor is a party, and
its certificate or articles of incorporation ad bylaws do not prohibit any
term or condition of this Agreement.
Enforceability of Collateral. To the extent the Collateral consists of
accounts, chattel paper, or general intangibles, as defined by the Uniform
Commercial Code, the collateral is enforceable in accordance with its terms,
is genuine, and fully complies with all applicable laws and regulations
concerning form, content and manner of preparation and execution, and all
persons appearing to be obligated on the Collateral have authority and
capacity to contract and are in fact obligated as they appear to be on the
Collateral. At the time any Account becomes subject to a security interest
in favor of Xxxxxx, The Account shall be a good and valid account
representing an undisputed, bona fide indebtedness incurred by the account
debtor, for merchandise held subject to delivery instructions or previously
shipped or delivered pursuant to a contract of sale, or for services
previously performed by Grantor with or for the account debtor. So long as
this Agreement remains in effect, Grantor shall not, without Xxxxxx's prior
written consent, compromise, settle, adjust, or extend payment under or with
regard to any such Accounts. There shall be no setoffs or counterclaims
against any of the Collateral, and no agreement shall have been made under
which any deductions or discounts may be claimed concerning the Collateral
except those disclosed to Lender in writing.
Location of the Collateral. Except in the ordinary course of Xxxxxxx's
business, Xxxxxxx agrees to keep the Collateral (or to the extent the
Collateral consists of intangible property such as accounts or general
intangibles, the records concerning the Collateral) at Grantor's address
shown above or at such other locations as are acceptable to Lender. Upon
Lender's request, Grantor will deliver to Lender in form satisfactory to
Lender a schedule of real properties and Collateral locations relating to
Grantor's operations, including without limitation the following: (1) all
real property Grantor owns or is purchasing; (2) all real property Grantor
is renting or leasing; (3) all storage facilities Grantor owns, rents,
leases, or uses; and (4) all other properties where Collateral is or may be
located.
COMMERCIAL SECURITY AGREEMENT
Loan No: 0000000026 (Continued) Page 2
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Removal of the Collateral. Except in the ordinary course of Xxxxxxx's
business, including the sales of inventory, Grantor shall not remove the
Collateral from its existing location without Lender's prior written
consent. To the extent that the Collateral consists of vehicles, or other
titled property, Grantor shall not take or permit any action which would
require application for certificates of title for the vehicles outside the
State of North Carolina, without Xxxxxx's prior written consent. Grantor
shall, whenever requested, advise Lender of the exact location of the
Collateral.
Transactions. Except for inventory sold or accounts collected in the
ordinary course of Grantor's business, or as otherwise provided for in this
Agreement, Grantor shall not sell, offer to sell, or otherwise transfer or
dispose of the Collateral. While Grantor is not in default under this
Agreement, Grantor may sell inventory, but only in the ordinary course of
its business and only to buyers who qualify as a buyer in the ordinary
course of business. A sale in the ordinary course of Xxxxxxx's business does
not include a transfer in partial or total satisfaction of a debt or any
bulk sale. Grantor shall not pledge, mortgage, encumber or otherwise permit
the Collateral to be subject to any lien, security interest, encumbrance, or
charge, other than the security interest provided for in this Agreement,
without the prior written consent of Lender. This includes security
interests even if junior in right to the security interests granted under
this Agreement. Unless waived by Xxxxxx, all proceeds from any disposition
of the Collateral (for whatever reason) shall be held in trust for Lender
and shall not be commingled with any other funds; provided however, this
requirement shall not constitute consent by Lender to any sale or other
disposition. Upon receipt, Grantor shall immediately deliver any such
proceeds to Lender.
Title. Grantor represents and warrants to Lender that Grantor holds good and
marketable title to the Collateral, free and clear of all liens and
encumbrances except for the lien of this Agreement. No financing statement
covering any of the Collateral is on file in any public office other than
those which reflect the security interest created by this Agreement or to
which Lender has specifically consented. Grantor shall defend Xxxxxx's
rights in the Collateral against the claims and demands of all other
persons.
Repairs and Maintenance. Grantor agrees to keep and maintain, and to cause
others to keep and maintain, the Collateral in good order, repair and
condition at all times while this Agreement remains in effect. Xxxxxxx
further agrees to pay when due all claims for work done on, or services
rendered or material furnished in connection with the Collateral so that no
lien or encumbrance may ever attach to or be filed against the Collateral.
Inspection of Collateral. Lender and Xxxxxx's designated representatives and
agents shall have the right at all reasonable times to examine and inspect
the Collateral wherever located.
Taxes, Assessments and Liens. Grantor will pay when due all taxes,
assessments and liens upon the Collateral, its use or operation, upon this
Agreement, upon any promissory note or notes evidencing the Indebtedness, or
upon any of the other Related Documents. Grantor may withhold any such
payment or may elect to contest any lien if Grantor is in good faith
conducting an appropriate proceeding to contest the obligation to pay and so
long as Xxxxxx's interest in the Collateral is not jeopardized in Xxxxxx's
sole opinion. If the Collateral is subjected to a lien which is not
discharged within fifteen (15) days, Grantor shall deposit with Lender cash,
a sufficient corporate surety bond or other security satisfactory to Lender
in an amount adequate to provide for the discharge of the lien plus any
interest, costs, attorneys' fees or other charges that could accrue as a
result of foreclosure or sale of the Collateral. In any contest Grantor
shall defend itself and Xxxxxx and shall satisfy any final adverse judgment
before enforcement against the Collateral. Grantor shall name Xxxxxx as an
additional obligee under any surety bond furnished in the contest
proceedings. Xxxxxxx further agrees to furnish Lender with evidence that
such taxes, assessments, and governmental and other charges have been paid
in full and in a timely manner. Grantor may withhold any such payment or may
elect to contest any lien if Grantor is in good faith conducting an
appropriate proceeding to contest the obligation to pay and so long as
Xxxxxx's interest in the Collateral is not jeopardized.
Compliance with Governmental Requirements. Grantor shall comply promptly
with all laws, ordinances, rules and regulations of all governmental
authorities, now or hereafter in effect, applicable to the ownership,
production, disposition, or use of the Collateral, including all laws or
regulations relating to the undue erosion of highly-erodible land or
relating to the conversion of wetlands for the production of an agricultural
product or commodity. Grantor may contest in good faith any such law,
ordinance or regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Xxxxxx's interest in the
Collateral, in Xxxxxx's opinion, is not jeopardized.
Hazardous Substances. Grantor represents and warrants that the Collateral
never has been, and never will be so long as this Agreement remains a lien
on the Collateral, used in violation of any Environmental Laws or for the
generation, manufacture, storage, transportation, treatment, disposal,
release or threatened release of any Hazardous Substance. The
representations and warranties contained herein are based on Grantor's due
diligence in investigating the Collateral for Hazardous Substances. Grantor
hereby (1) releases and waives any future claims against Xxxxxx for
indemnity or contribution in the event Grantor becomes liable for cleanup or
other costs under any Environmental Laws, and (2) agrees to indemnify and
hold harmless Lender against any and all claims and losses resulting from a
breach of this provision of this Agreement. This obligation to indemnify
shall survive the payment of the indebtedness and the satisfaction of this
Agreement.
Maintenance of Casualty Insurance. Grantor shall procure and maintain all
risks insurance, including without limitation fire, theft and liability
coverage together with such other insurance as Lender may require with
respect to the Collateral, in form, amounts, coverages and basis reasonably
acceptable to Lender and issued by a company or companies reasonable
acceptable to Lender. Grantor, upon request of Xxxxxx, will deliver to
Lender from time to time the policies or certificates of insurance in form
satisfactory to Lender, including stipulations that coverages will not be
cancelled or diminished without at least ten (10) days' prior written notice
to Lender and not including any disclaimer of the insurer's liability for
failure to give such a notice. Each insurance policy also shall include an
endorsement providing that coverage in favor of Lender will not be impaired
in any way by any act, omission or default of Grantor or any other person.
In connection with all policies covering assets in which Lender holds or is
offered a security interest, Grantor will provide Lender with such loss
payable or other endorsements as Lender may require. If Grantor at any time
fails to obtain or maintain any insurance as required under this Agreement,
Lender may (but shall not be obligated to) obtain such insurance as Lender
deems appropriate, including if Lender so chooses "single interest
insurance," which will cover only Xxxxxx's interest in the Collateral.
Application of Insurance Proceeds. Grantor shall promptly notify Lender of
any loss or damage to the Collateral. Lender may make proof of loss if
Grantor fails to do so within fifteen (15) days of the casualty. All
proceeds of any insurance on the Collateral, including accrued proceeds
thereon, shall be held by Lender as part of the Collateral. If Lender
consents to repair or replacement of the damaged or destroyed Collateral,
Lender shall, upon satisfactory proof of expenditure, pay or reimburse
Grantor from the proceeds for the reasonable cost of repair or restoration.
If Lender does not consent to repair or replacement of the Collateral,
Lender shall retain a sufficient amount of the proceeds to pay all of the
indebtedness, and shall pay the balance to Grantor. Any proceeds which have
not been disbursed within six (6) months after their receipt and which
Grantor has not committed to the repair or restoration of the Collateral
shall be used to prepay the Indebtedness.
Insurance Reserves. Lender may require Grantor to maintain with Lender
reserves for payment of insurance premiums, which reserves shall be created
by monthly payments from Grantor of a sum estimated by Lender to be
sufficient to produce, at least fifteen (15) days before the premium due
date, amounts at least equal to the insurance premiums to be paid. If
fifteen (15) days before payment is due, the reserve funds are insufficient,
Grantor shall upon demand pay any deficiency to Lender. The reserve funds
shall be held by Lender as a general deposit and shall constitute a
non-interest-bearing account which Lender may satisfy by payment of the
insurance premiums required to be paid by Grantor as they become due. Lender
does not hold the reserve funds in trust for Grantor, and Xxxxxx is not the
agent of Grantor for payment of the insurance premiums required to be paid
by Grantor. The responsibility for the payment of premiums shall remain
Grantor's sole responsibility.
Insurance Reports. Grantor, upon request of Xxxxxx, shall furnish to Lender
reports on each existing policy of insurance showing such information as
Lender may reasonably request including the following: (1) the name of the
insurer; (2) the risks insured; (3) the amount of the policy; (4) the
property insured; (5) the then current value on the basis of which insurance
has been obtained and the manner of determining that value; and (6) the
expiration date of the policy. In addition, Grantor shall upon request by
Lender (however not more often than annually) have an independent appraiser
satisfactory to Lender determine, as applicable, the cash value or
replacement cost of the Collateral.
Financing Statements. Grantor authorizes Lender to file a UCC-1 financing
statement, or alternatively, a copy of this Agreement to perfect Xxxxxx's
security interest. At Xxxxxx's request, Xxxxxxx additionally agrees to sign
all other documents that are necessary to perfect, protect, and continue
Xxxxxx's security interest in the Property. Grantor will pay all filing
fees, title transfer fees, and other fees and costs involved unless
prohibited by law or unless Lender is required by law to pay such fees and
costs. Grantor irrevocably appoints Xxxxxx to execute financing statements
and documents of title in Xxxxxxx's name and to execute all documents
necessary to transfer title if there is a default. Lender may file a copy of
this Agreement as a financing statement. If Grantor changes Grantor's name
or address, or the name or address of any person granting a security
interest under this Agreement changes, Grantor will promptly notify the
Lender of such change.
COMMERCIAL SECURITY AGREEMENT
Loan No: 0000000026 (Continued) Page 3
================================================================================
XXXXXXX'S RIGHT TO POSSESSION AND TO COLLECT ACCOUNTS. Until default and except
otherwise provided below with respect to accounts, Grantor may have possession
of the tangible personal property and beneficial use of all the Collateral and
may use it in any lawful manner not inconsistent with this Agreement or the
Related Documents, provided that Grantor's right to possession and beneficial
use shall not apply to any Collateral where possession of the Collateral by
Lender is required by law to perfect Lender's security interest in such
Collateral. Until otherwise notified by Xxxxxx, Grantor may collect any of the
Collateral consisting of accounts. At any time and even through no Event of
Default exists, Lender may exercise its rights to collect the accounts and to
notify account debtors to make payments directly to Lender for application to
the Indebtedness. If Lender at any time has possession of any Collateral,
whether before or after an Event of Default, Lender shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral if
Lender takes such action for that purpose as Grantor shall request or as Lender,
in Xxxxxx's sole discretion, shall deem appropriate under the circumstances, but
failure to honor any request by Grantor shall not of itself be deemed to be a
failure to exercise reasonable care. Lender shall not be required to take any
steps necessary to preserve any rights in the Collateral against prior parties,
nor to protect, preserve or maintain any security interest given to secure the
Indebtedness.
XXXXXX'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Xxxxxx's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents, Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Collateral and paying all
costs for insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a part
of the indebtedness and, at Lender's option, will (A) be payable on demand; (B)
be added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity. The Agreement also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Xxxxxx may be
entitled upon Default.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
Payment Default. Grantor fails to make any payment when due under the
Indebtedness.
Other Defaults. Grantor fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Agreement or in any of
the Related Documents or to comply with or to perform any term, obligation,
covenant or condition contained in any other agreement between Lender and
Grantor.
Default in Favor of Third Parties. Should Borrower or any Grantor default
under any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Grantor's property or Grantor's or any
Grantor's ability to repay the Indebtedness or perform their respective
obligations under this Agreement or any of the Related Documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Grantor or on Grantor's behalf under this Agreement
or the Related Documents is false or misleading in any material respect,
either now or at the time made or furnished or becomes false or misleading
at any time thereafter.
Defective Collateralization. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any
time and for any reason.
Insolvency. The dissolution or termination of Xxxxxxx's existence as a going
business, the insolvency of Grantor, the appointment of a receiver for any
part of Grantor's property, any assignment for the benefit of creditors, any
type of creditor workout, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Grantor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor or Grantor or by any
governmental agency against any collateral securing the Indebtedness. This
includes a garnishment of any of Grantor's accounts, including deposit
accounts, with Xxxxxx. However, this Event of Default shall not apply if
there is a good faith dispute by Grantor as to the validity or
reasonableness of the claim which is the basis of the creditor or forfeiture
proceeding and if Grantor gives Xxxxxx written notice of the creditor or
forfeiture proceeding and deposits with Lender monies or a surety bond for
the creditor or forfeiture proceeding, in an amount determined by Lender, in
its sole discretion, as being an adequate reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect
to guarantor, endorser, surety, or accommodation party of any of the
Indebtedness or guarantor, endorser, surety, or accommodation party dies or
becomes incompetent or revokes or disputes the validity of, or liability
under, any Guaranty of the Indebtedness.
Adverse Change. A material adverse change occurs in Grantor's financial
condition, or Xxxxxx believes the prospect of payment or performance of the
Indebtedness is impaired.
Insecurity. Lender in good faith believes itself insecure.
Cure Provisions. If any default, other than a default in payment is curable
and if Grantor has not been given a notice of a breach of the same provision
of this Agreement within the preceding twelve (12) months, it may be cured
(and no event of default will have occurred) if Grantor, after receiving
written notice from Lender demanding cure of such default: (1) cures the
default within fifteen (15) days; or (2) if the cure requires more than
fifteen (15) days, immediately initiates steps which Lender deems in
Xxxxxx's sole discretion to be sufficient to cure the default and thereafter
continues and completes all reasonable and necessary steps sufficient to
produce compliance as soon as reasonably practical.
RIGHTS AND REMEDIES ON DEFAULT. If an event of default occurs under this
Agreement, at any time thereafter, Lender shall have all the rights of a secured
party under the North Carolina Uniform Commercial Code. In addition and without
limitation, Lender may exercise any one or more of the following rights and
remedies:
Accelerate Indebtedness. Xxxxxx may declare the entire Indebtedness,
including any prepayment penalty which Grantor would be required to pay,
immediately due and payable, without notice of any kind to Grantor.
Assemble Collateral. Lender may require Grantor to deliver to Lender all or
any portion of the Collateral and any and all certificates of title and
other documents relating to the Collateral. Lender may require Grantor to
assemble the Collateral and make it available to Lender at a place to be
designated by Lender. Xxxxxx also shall have full power to enter upon the
property of Grantor to take possession of and remove the Collateral. If the
Collateral contains other goods not covered by this Agreement at the time of
repossession, Grantor agrees Lender may take such other goods, provided that
Xxxxxx makes reasonable efforts to return them to Grantor after
repossession.
Sell the Collateral. Lender shall have full power to sell, lease, transfer,
or otherwise deal with the Collateral or proceeds thereof in Xxxxxx's own
name or that of Grantor. Lender may sell the Collateral at public auction or
private sale. Unless the Collateral threatens to decline speedily in value
or is of a type customarily sold on a recognized market, Lender will give
Grantor, and other persons as required by law, reasonable notice of the time
and place of any public sale, or the time after which any private sale or
any other disposition of the Collateral is to be made. However, no notice
need be provided to any person who, after Event of Default occurs, enters
into and authenticates an agreement waiving that person's right to
notification of sale. The requirements of reasonable notice shall be met if
such notice is given at least ten (10) days before the time of the sale or
disposition. All expenses relating to the disposition of the Collateral,
including without limitation the expenses of retaking, holding, insuring,
preparing for sale and selling the Collateral, shall become a part of the
Indebtedness secured by this Agreement and shall be payable in demand, with
interest at the Note rate from date of expenditure until repaid.
Appoint Receiver. Lender shall have the right to have a receiver appointed
to take possession of all or any part of the Collateral, with the power to
protect and preserve the Collateral, to operate the Collateral preceding
foreclosure or sale, and to collect the Rents from the Collateral and apply
the proceeds, over and above the cost of the receivership, against the
indebtedness. The receiver may serve without bond if permitted by law.
Xxxxxx's right to the appointment of a receiver shall exist whether or not
the apparent value of the Collateral exceeds the Indebtedness by a
substantial amount. Employment by Xxxxxx shall not disqualify a person from
serving as a receiver.
COMMERCIAL SECURITY AGREEMENT
Loan No: 0000000026 (Continued) Page 4
================================================================================
Collect Revenues, Apply Accounts. Lender, either itself or through a
receiver, may collect the payments, rents, income, and revenues from the
Collateral. Lender may at any time in Xxxxxx's discretion transfer any
Collateral into Xxxxxx's own name or that of Xxxxxx's nominee and receive
the payments, rents, income and revenues therefrom and hold the same as
security for the Indebtedness or apply it to payment of the Indebtedness in
such order of preference as Lender may determine. Insofar as the Collateral
consists of accounts, general intangibles, insurance policies, instruments,
chattel paper, choses in action, or similar property, Lender may demand,
collect, receipt for, settle, compromise, adjust, sue for, foreclose, or
realize on the Collateral as Lender may determine, whether or not
Indebtedness or Collateral is then due. For these purposes, Xxxxxx may, on
behalf of and in the name of Grantor, receive, open and dispose of mail
addressed to Grantor; change any address to which mail and payments are to
be sent; and endorse notes, checks, drafts, money orders, documents of
title, instruments, and items pertaining to payment, shipment, or storage of
any Collateral. To facilitate collection, Xxxxxx may notify account debtors
and obligors on any Collateral to make payments directly to Lender.
Obtain Deficiency. If Xxxxxx chooses to sell any or all of the Collateral,
Lender may obtain a judgment against Grantor for any deficiency remaining on
the Indebtedness due to Lender after application of all amounts received
from the exercise of the rights provided in this Agreement. Grantor shall be
liable for a deficiency even if the transaction described in this subsection
is a sell of accounts or chattel paper.
Other Rights and Remedies. Lender shall have all the rights and remedies of
a secured creditor under the provisions of the Uniform Commercial Code, as
may be amended from time to time. In addition, Lender shall have and may
exercise any or all other rights and remedies it may have available at law,
in equity or otherwise.
Election of Remedies. Except as may be prohibited by applicable law, all of
Lender's rights and remedies, whether evidenced by this Agreement, the
Related Documents, or by any other writing, shall be cumulative and may be
exercised singularly or concurrently. Election by Xxxxxx to pursue any
remedy shall not exclude pursuit of any other remedy, and an election to
make expenditures or to take action to perform an obligation of Grantor
under this Agreement, after Xxxxxxx's failure to perform, shall not affect
Xxxxxx's right to declare a default and exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
Amendments. This Agreement, together with any Related Documents, constitutes
the entire understanding and agreement of the parties as to the matters set
forth in this Agreement. No alteration of or amendment to this Agreement
shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
Attorneys' Fees; Expenses. Xxxxxxx agrees to pay upon demand all of Xxxxxx's
costs and expenses, including Xxxxxx's attorneys' fees and Xxxxxx's legal
expenses, incurred in connection with the enforcement of this agreement.
Lender may hire or pay someone else to help enforce this Agreement, and
Grantor shall pay the cost and expenses of such enforcement. Costs and
expenses include Xxxxxx's attorneys' fees and legal expenses whether or not
there is a lawsuit, including attorneys' fees and legal expenses for
bankruptcy proceedings (including efforts to modify or vacate any automatic
stay or injunction), appeals, and any anticipated post-judgment collection
services. Grantor also shall pay all court costs and such additional fees as
may be directed by the court.
Caption Headings. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
Governing Law. This Agreement will be governed by, construed and enforced in
accordance with federal law and the laws of the State of North Carolina.
This Agreement has been accepted by Xxxxxx in the State of North Carolina.
No Waiver by Xxxxxx. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Xxxxxx. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Xxxxxx of a provision of this Agreement shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
Xxxxxx, nor any course of dealing between Xxxxxx and Grantor, shall
constitute a waiver of any of Lender's rights or of any of Grantor's
obligations as to any future transactions. Whenever the consent of Lender is
required under this Agreement, the granting of such consent by Lender in any
instance shall not constitute continuing consent to subsequent instances
where such consent is required and in all cases such consent may be granted
or withheld in the sole discretion of Lender.
Notices. Any notice required to be given under this Agreement shall be given
in writing, and shall be effective when actually delivered, when actually
received by telefacsimilie (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed,
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Agreement. Any party may change its address for notices
under this Agreement by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address.
For notice purposes, Xxxxxxx agrees to keep Xxxxxx informed at all times of
Xxxxxxx's current address. Unless otherwise provided or required by law, if
there is more than one Grantor, any notice given by Lender to any Grantor is
deemed to be notice given to all Grantors.
Power of Attorney. Grantor hereby appoints Xxxxxx as Xxxxxxx's irrevocable
attorney-in-fact for the purpose of executing any documents necessary to
perfect, amend, or to continue the security interest granted in this
Agreement or to demand termination of filings of other secured parties.
Lender may at any time, and without further authorization from Grantor, file
a carbon, photographic or other reproduction of any financing statement or
of this Agreement for use as a financing statement. Grantor will reimburse
Lender for all expenses for the perfection and the continuation of the
perfection of Xxxxxx's security interest in the Collateral.
Severability. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement. Unless otherwise required
by law, the illegality, invalidity, or unenforceability of any provision of
this Agreement shall not affect the legality, validity or enforceability of
any other provision of this Agreement.
Successors and Assigns. Subject to any limitations stated in this Agreement
on transfer of Grantor's interest, this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns. If
ownership of the Collateral becomes vested in a person other than Grantor,
Lender, without notice to Grantor, may deal with Xxxxxxx's successors with
reference to this Agreement and the indebtedness by way of forbearance or
extension without releasing Grantor from the obligations of this Agreement
or liability under the Indebtedness.
Survival of Representations and Warranties. All representations, warranties,
and agreements made by Grantor in this Agreement shall survive the execution
and delivery of this Agreement, shall be continuing in nature, and shall
remain in full force and effect until such time as Grantor's Indebtedness
shall be paid in full.
Time is of the Essence. Time is of the essence in the performance of this
Agreement.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code:
Account. The word "Account" means a trade account, account receivable, other
receivable, or other right to payment for goods sold or services rendered
owing to Grantor (or to a third party grantor acceptable to Lender).
Agreement. The word "Agreement" means this Commercial Security Agreement, as
this Commercial Security Agreement may be amended or modified from time to
time, together with all exhibits and schedules attached to this Commercial
Security Agreement from time to time.
Borrower. The word "Borrower" means Transbotics Corporation and includes all
co-signers and co-makers signing the Note.
Collateral. The word "Collateral" means all of Grantor's right, title and
interest in and to all the Collateral as described in the Collateral
Description section of this Agreement.
COMMERCIAL SECURITY AGREEMENT
Loan No: 0000000026 (Continued) Page 5
================================================================================
Default. The word "Default" means the default set forth in this Agreement in
the section titled "Default".
Environmental Laws. The words "Environmental Laws" means any and all state,
federal and local statutes, regulations and ordinances relating to the
protection of human health or the environment, including without limitation
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("Xxxx"), the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or
other applicable state of federal laws, rules, or regulations adopted
pursuant thereto.
Event of Default. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default section of this
Agreement.
Grantor. The word "Grantor" means Transbotics Corporation.
Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser,
surety, or accommodation party to Lender, including without limitation a
guaranty of all or part of the Note.
Hazardous Substances. The words "Hazardous Substances" means materials that,
because of their quantity, concentration or physical, chemical or infectious
characteristics, may cause or pose a present or potential hazard to human
health or the environment when improperly used, treated, stored, disposed
of, generated, manufactured, transported or otherwise handled. The words
"Hazardous Substances" are used in their very broadest sense and include
without limitation any and all hazardous or toxic substances, materials or
waste as defined by or listed under the Environmental Laws. The term
"Hazardous Substances" also includes, without limitation, petroleum and
petroleum by-products or any fraction thereof and asbestos.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced by
the Note or Related Documents, including all principal and interest together
with all other indebtedness and costs and expenses for which Grantor is
responsible under this Agreement or under any of the Related Documents.
Lender. The word "Lender" means SouthTrust Bank, its successors and assigns.
Note. The word "Note" means the Note executed by Transbotics Corporation in
the principal amount of $150,000.00 dated November 13, 2003, together with
all renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the note or credit agreement.
Property. The word "Property" means all of Grantor's right, title and
interest in and to all the Property as described in the "Collateral
Description" section of this Agreement.
Related Documents. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
GRANTOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY
AGREEMENT AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED NOVEMBER 13, 2003.
GRANTOR:
TRANSBOTICS CORPORATION
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------------------
Xxxxxx Xxxxxxx
President, CEO & CFO of Transbotics Corporation
================================================================================
AGREEMENT TO PROVIDE INSURANCE
----------- ----------- ------------ ------------ ------------ -------------- ----------- -----------
Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$150,000 11-13-2004 03-31-2005 0000000026 0001 1000501525 N8U
----------- ----------- ------------ ------------ ------------ -------------- ----------- -----------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
-----------------------------------------------------------------------------------------------------
Borrower: Transbotics Corporation (TIN: 00-0000000) Lender: SouthTrust Bank
0000 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxx - Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX
=====================================================================================================
INSURANCE REQUIREMENTS. Grantor, Transbotics Corporation ("Grantor"),
understands that insurance coverage is required in connection with the extending
of a loan or the providing of other financial accommodations to Grantor by
Xxxxxx. These requirements are set forth in the security documents for the loan.
The following minimum insurance coverages must be provided on the following
described collateral (the "Collateral"):
Collateral: All Inventory and Equipment.
Type: All risks, including fire, theft and liability.
Amount: Full Insurable Value.
Basis: Replacement value.
Endorsements: Lender loss payable clause with stipulation that
coverage will not be cancelled or diminished without a minimum
of 10 days prior written notice to Lender.
Latest Delivery Date: By the loan closing date.
INSURANCE COMPANY. Grantor may obtain insurance from any insurance company
Grantor may choose that is reasonably acceptable to Lender. Xxxxxxx
understands that credit may not be denied solely because insurance was not
purchased through Lender.
FAILURE TO PROVIDE INSURANCE. Xxxxxxx agrees to deliver to Xxxxxx, on the
latest delivery date stated above, proof of the required insurance as
provided above, with an effective date of November 13, 2003, or earlier.
Grantor acknowledges and agrees that if Grantor fails to provide any
required insurance or fails to continue such insurance in force, Lender may
do so at Grantor's expense as provided in the applicable security document.
The cost of any such insurance, at the option of Lender, shall be added to
the indebtedness as provided in the security document. GRANTOR ACKNOWLEDGES
THAT IF LENDER SO PURCHASES ANY SUCH INSURANCE, THE INSURANCE WILL PROVIDE
LIMITED PROTECTION AGAINST PHYSICAL DAMAGE TO THE COLLATERAL, UP TO AN
AMOUNT EQUAL TO THE LESSER OF (1) THE UNPAID BALANCE OF THE DEBT, EXCLUDING
ANY UNEARNED FINANCE CHARGES, OR (2) THE VALUE OF THE COLLATERAL; HOWEVER,
GRANTOR'S EQUITY IN THE COLLATERAL MAY NOT BE INSURED. IN ADDITION, THE
INSURANCE MAY NOT PROVIDE ANY PUBLIC LIABILITY OR PROPERTY DAMAGE
INDEMNIFICATION AND MAY NOT MEET THE REQUIREMENTS OF ANY FINANCIAL
RESPONSIBILITY LAWS.
AUTHORIZATION. For purposes of insurance coverage on the Collateral, Grantor
authorizes Lender to provide to any person (including any insurance agent or
company) all information Lender deems appropriate, whether regarding the
Collateral, the loan or other financial accommodations, or both.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS AGREEMENT TO
PROVIDE INSURANCE AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED NOVEMBER
13, 2003.
GRANTOR:
TRANSBOTICS CORPORATION
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------------------
Xxxxxx Xxxxxxx
President, CEO & CFO of Transbotics Corporation
--------------------------------------------------------------------------------
FOR LENDER USE ONLY
INSURANCE VERIFICATION
DATE: 11/23/04 PHONE: (000) 000-0000
------------------------------------- --------------
-------------------------------------------
AGENT'S NAME: X. Xxxxxx Xxxxxxx
-----------------------------
AGENCY: Xxxxxxx, Church & Muse, Inc.
-----------------------------------
INSURANCE COMPANY: Chubb Insurance Group
------------------------
POLICY NUMBER: 3531-60-36
----------------------------
EFFECTIVE DATES: 12/01/03 - 12/01/04
--------------------------
COMMENTS:
---------------------------------
-------------------------------------------
--------------------------------------------------------------------------------
================================================================================
NOTICE OF INSURANCE REQUIREMENTS
----------- ----------- ------------ ------------ ------------ -------------- ----------- -----------
Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$150,000 11-13-2004 03-31-2005 0000000026 0001 1000501525 N8U
----------- ----------- ------------ ------------ ------------ -------------- ----------- -----------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
-----------------------------------------------------------------------------------------------------
Borrower: Transbotics Corporation (TIN: 00-0000000) Lender: SouthTrust Bank
0000 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxx - Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX
=====================================================================================================
---------------------
TO: ATTN: Insurance Agent DATE: November 23, 2004
---------------------
RE: Policy Number(s):
Insurance Companies/Company:
Dear Insurance Agent:
Grantor, Transbotics Corporation ("Grantor") is obtaining a loan from SouthTrust
Bank. Please send appropriate evidence of insurance to SouthTrust Bank, together
with the requested endorsements, on the following property, which Grantor is
giving as security for the loan.
Collateral: All Inventory and Equipment.
Type: All risks, including fire, theft and liability.
Amount: Full Insurable Value.
Basis: Replacement value.
Endorsements: Lender loss payable clause with stipulation that
coverage will not be cancelled or diminished without a minimum
of 10 days prior written notice to Lender.
Latest Delivery Date: By the loan closing date.
GRANTOR:
TRANSBOTICS CORPORATION
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------------------
Xxxxxx Xxxxxxx
President, CEO & CFO of Transbotics Corporation
RETURN TO:
---------------------------------------------------------
Commercial Loans - Xxxxxxxxx
Xxxxxxxxx, North Carolina
---------------------------------------------------------
