EXHIBIT 10.1.2
INSTALLMENT NOTE
$ 400,000.00 St Petersburg FL May 1, 1996
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(City) (State) (Date)
For value received, the undersigned (whether one or more, hereinafter called the
"Obligors") promise(s) to pay to the order of SouthTrust Bank of Florida,
National Association (hereinafter called the "Bank" or, together with any other
holder of this note, the "Holder"), at any office of the Bank in St Petersburg,
FL, or at such other place as the Holder may designate, the principal sum of
FOUR HUNDRED THOUSAND AND NO/100 Dollars, together with interest thereon at the
rate and on the date(s) provided below from the date of this note (or other
interest accrual date shown below) until maturity, and with interest on the
unpaid principal balance after maturity at the rate which is 2 percent per annum
in excess of the rate stated below or the maximum rate allowed by law, whichever
is less, from maturity until said indebtedness is paid in full. Interest will
accrue beginning on the date of this note unless another date is shown
here:________________________________________.
INTEREST RATE.
|_| Variable Rate --
Interest from date
The above-stated sum shall accrue interest as follows (check applicable
box(es)):
Interest will accrue on the above-stated principal sum at the rate per annum
which is _________________ percentage points in excess of the Index Rate. Unless
another rate is made applicable below, the "Index Rate" is the rate of interest
designated by the Bank periodically as its Base Rate. The Base Rate is not
necessarily the lowest rate charged by the Bank. The Base Rate on the date of
this note is _____________________ percent.
|_| (check box if applicable) The "Index Rate" is the weekly auction average
yield of ____________ -week U.S. Treasury Bills at the most recent auction
prior to the data the Index Rate is calculated. The Index Rate on the date
of this note is____________ percent. The rate of interest payable under
this note will change to reflect any change in the Index Rate:
|_| on any day the Index Rate changes.
|_| on the _____________ day of each month hereafter.
|_| on the day each payment of interest is due as provided below.
|_|_______________________________________________________
Obligors may prepay this note in full at any time without penalty.
|X| Fixed Rate --
Interest from date
Interest will accrue on the above-stated principal sum at the rate of 8.75%
percent per annum.
Interest on the principal sum will be calculated at the rate set forth
above on the basis of a |X| 360 |_| 365 day year and the actual number of days
elapsed by multiplying the principal sum by the per annum rate set forth above,
multiplying the product thereof by the actual number of days elapsed, and
dividing the product so obtained by |X| 360 |_| 365.
PAYMENT SCHEDULE. The above-stated principal sum and interest thereon shall be
paid as follows (check applicable box(es)):
|_| Installments
of Principal,
Interest Paid
Separately
The Obligors promise to pay the above-stated principal sum in ________________
consecutive |_| monthly installments |_| quarterly installments |_|_____________
installments in the amount of $_____________________ each,
beginning_______________________ and continuing on the same day of each month,
quarter, or other period (as applicable) thereafter until __________________ at
which time the unpaid balance of the principal sum and all accrued bid unpaid
interest thereon shall be due and payable.
The Obligors promise to pay accrued interest on the principal sum: |_| monthly
|_| quarterly |_| ___________________ beginning ______________________ and
continuing on the same day of each month, quarter, or other period (as
applicable) thereafter until maturity.
|X| Installments
of Principal and
Interest
The Obligors promise to pay the above-stated principal sum and interest thereon
in 59 consecutive |X| monthly installments |_| quarterly installments |_|
__________________installments in the amount of $ 8,254.89 each, beginning June
1, 1996 and continuing on the same day of each month, quarter, or other period
(as applicable) thereafter until May 1, 2001 at which time the unpaid balance of
the principal sum and all accrued but unpaid interest thereon shall be due and
payable.
LOAN FEE. (This provision applicable only if completed):
A loan fee in the amount of $2,000.00 has been |_| included in the amount
of this note and paid to the Bank from the loan proceeds. |X| paid to the Bank
by cash or check at closing. The loan fee is earned by the Bank when paid and is
not subject to refund except to the extent required by law.
LATE CHARGE.
If any scheduled payment is in default 10 days or more, Obligors agree to
pay a late charge equal to 5% of the amount of the payment which is in default,
but not less than $.50 or more than the maximum amount allowed by applicable
law.
PREPAYMENT.
If the interest rate on this note is a variable rate, Obligors may prepay
this note in full at any time without premium or penalty. If the interest rate
on this note is a fixed rate, unless the paragraph which follows is applicable,
prepayment of the principal sum of this note in whole or in part is not
permitted.
|_| If this box is checked, and if the interest rate on this note is a fixed
rate, Obligors may not prepay this note in whole or in part during the first
year after the date of this note. Thereafter, prepayment will be permitted on
any scheduled payment date on condition that the amount of the prepayment must
equal the sum of (a) the principal amount prepaid plus (b) accrued interest on
the amount prepaid plus (c) a premium equal to 1% of the principal amount
prepaid multipled times the number of years or parts of a year remaining until
final scheduled maturity of this note. No prepayment premium need be paid if
prepayment is made within one year prior to the final scheduled maturity of this
note.
If prepayment in full without penalty or premium is required to be
permitted by applicable law, the foregoing provisions will not apply and
prepayment will be allowed in accordance with such law.
COLLATERAL
This note is secured by every security agreement, pledge, assignment,
stock power, mortgage, deed of trust, security deed and/or other instrument
covering personal or real property (all of which are, hereinafter included in
the term "Separate Agreements") which secures an obligation so defined as to
include this note, including without limitation all such Separate Agreements
which are of even date herewith and/or described in the space below. In
addition, as security for the payment of any and all liabilities and obligations
of the Obligors to the Holder (including this note and the indebtedness
evidenced by this note and all extensions, renewals and modifications thereof,
and all writings delivered in substitution therefor) and all claims of every
nature of the Holder against the Obligors, whether present or future, and
whether joint, several, absolute, contingent, matured, liquidated, unliquidated,
and direct or indirect (all of the foregoing are hereinafter included in the
term "Obligations") the Obligors hereby assign to the Holder and grant to the
Holder a security interest in and security title to the property (the
"Collateral") described below: (Describe Separate Agreements and Collateral.)
As further described in Security Agreement dated May 1, 1996
and Security Agreement dated 8/16/95 filed under loan #9520773-00001;
Cross-Collateralized and Cross-Defaulted with Loan #9520773-00001
The Obligors are jointly and severally liable for the payment of this note
and have subscribed their names hereto without condition that anyone else should
sign or become bound hereon and without any other condition whatever being made.
The provisions printed on the back of this page are a part of this note. The
provisions of this note are binding on the heirs, executors, administrators,
successors and assigns of each and every Obligor and shall inure to the behalf
of the Holder, its successors and assigns. This note is executed under the seal
of each of the Obligors and of the indorsers, if any.
The provisions on the reverse side are a part of this note.
CAUTION - IT IS IMPORTANT THAT YOU THOROUGHLY READ THE CONTRACT BEFORE YOU
SIGN IT.
Address of Obligor:
Telecommunications Service Center, Inc.
000 Xxxx Xxxxxxx Xx. Xxx. 1215 and Xxxxx Xxxxxxx
------------------------------------ ----------------------------------------(SEAL)
Tampa, FL 33602
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By /s/ Xxxxxx Xxxxxxxxx President
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Xxxxxx Xxxxxxxxx Title
No. 9520773-00002 Signature /s/ Xxxxx Xxxxxxx
------------------------------------ ------------------------------(SEAL)
Xxxxx Xxxxxxx, Director
Officer: Xxxxx Xxxxxx Signature /s/ Xxxxx Xxxxxxx
------------------------------------ ------------------------------(SEAL)
Xxxxx Xxxxxxx, CEO
Branch: Corporate
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SF52709 (R) SouthTrust Corporation Rev. 11/90
Additional Terms and Conditions of Installment Note
(Terms Continued from Reverse Side)
If the Obligors fail to pay any installment of principal or interest or
any other sum under this note exactly when it is due or fail to perform any
other covenant under this note when due (time being of the essence of every term
of this note), or if any of the Obligors or any guarantor or indorser of this
note shall die (if an individual) or dissolve or cease to do business (if a
partnership or corporation), or if any of the Obligors or any guarantor or
indorser of this note becomes insolvent, or makes a general assignment for the
benefit of creditors, or files or has filed against him or if a petition under
any chapter of the Federal Bankruptcy Code, or files or has filed against him or
if an application in any court for the appointment of a receiver or trustee of
any substantial part of his or its property or assets, or if a judgment is
entered against any of the Obligors or any such guarantor or indorser of a levy,
writ of execution, attachment or garnishment is issued against any of the
Obligors or any such guarantor or indorser or any of his or its property or
assets: or if any Obligor, indorser or guarantor of this note transfers all or
any valuable part of his, her or its assets outside the ordinary course of
business, or wastes, loses, or dissipates or permits waste, loss or dissipation
of any valuable part of such person's assets; or if any Obligors, indorser or
guarantor of this note is a partnership, and any general partner of such
partnership withdraws or is removed; or if any Obligor, indorser or guarantor of
this note is a corporation and ownership or power to vote more than 50 percent
of the voting stock of such corporation is transferred, directly or indirectly
(including through any voting trust, irrevocable proxy, or the like), during any
12 month period; of if any default or breach occurs, under any of the Separate
Agreements, or if at any time in the opinion of the Holder the financial
responsibility of any Obligor or any guarantor or indorser of this note becomes
impaired, then, if any of the foregoing shall occur, the entire unpaid principal
sum of this note and all accrued but unpaid interest thereon shall, at the
option of the Holder and without requirement of notice or demand, become due and
payable immediately, notwithstanding any time or credit allowed under this note
or under any other agreement made by the Holder with the Obligors.
As additional Collateral for the payment of all Obligations, the Obligors
jointly and severally transfer, assign, pledge, and set over to the Holder, and
grant the Holder a continuing lien upon and security interest in, any and all
property of each Obligor that for any purpose, whether in trust for any Obligor
or for custody, pledge, collection or otherwise, is now or hereafter in the
actual or constructive possession of, or in transit to, the Holder in any
capacity, its correspondents or agents, and also a continuing lien upon and
right of set-off against deposits and credits of each Obligor with, and all
claims of each Obligor against, the Holder now or at any time hereafter
existing. The Holder is hereby authorized at any time or times and without prior
notice to apply such property, deposits, credits, and claims, in whole or in
part and in such order as the Holder may elect, to the payment of, or as a
reserve against, one or more of the Obligations whether other Collateral
therefor is deemed adequate or not. All such property, deposits, credits and
claims of the Obligors are included in the term Collateral, and the Holder shall
have (unless prohibited by law) the same rights with respect to such Collateral
as it has with respect to other Collateral.
Without the necessity for any further notice to or consent of any Obligor,
the Holder may exercise any rights of any of the Obligors with respect to any
Collateral, including without limitation thereto the following rights: (1) to
record or register in, or otherwise transfer into, the name of the Holder or its
nominee any part of the Collateral, without disclosing that the Holder's
interest is that of a secured party; (2) to pledge or otherwise transfer any or
all of the Obligations and/or Collateral, whereupon any pledgee or transferee
shall have all the rights of the Holder hereunder, and the Holder shall
thereafter be fully discharged and relieved from all responsibility and
liability for the Collateral so transferred but shall retain all rights and
powers thereunder as to all Collateral not so transferred; (3) to take
possession of any Collateral and to receive any proceeds of and dividends and
income on any Collateral, including money, and to hold the same as Collateral or
apply the same to any of the Obligations, the manner, order and extent of such
application to be in the sole discretion of the Holder; (4) to exercise any and
all rights of voting, conversion, exchange, subscription and other rights or
options pertaining to any Collateral; and (5) to liquidate, demand, sue for,
collect, compromise, receive and give receipt for the cash or surrender value of
any Collateral. If for any reason whatsoever the Collateral shall cease to be
satisfactory to the Holder, the Obligors shall upon demand deposit with the
Holder additional Collateral satisfactory to the Holder. Surrender of this note,
upon payment or otherwise, shall not affect the right of the Holder to retain
the Collateral as security for other Obligations. Upon default, the Obligors
agree to assemble the Collateral and make it available to Holder at such place
or places as the Holder shall designate.
The Holder shall be deemed to have exercised reasonable care in the
custody and preservation of any of the Collateral which is in its possession if
it takes such reasonable actions for that purpose as the pledgor of such
Collateral shall request in writing, but the Holder shall have the sole
discretion to determine whether such actions are reasonable. Any omission to do
any act not requested by the pledgor shall not be deemed a failure to exercise
reasonable care. The Obligors shall be responsible for the preservation of the
Collateral and shall take all steps to preserve rights against prior parties.
The Holder shall not be liable for, and no Obligor, indorser, or guarantor shall
be discharged to any extent on account of, any failure to realize upon, or to
exercise any right or power with respect to, any of the Obligations or
Collateral, or for any delay in so doing.
The Holder, without making any demand whatsoever, shall have the right to
sell all or any part of the Collateral, although the Obligations may be
contingent or unmatured, whenever the Holder considers such sale necessary for
its protection. Sale of the Collateral may be made, at any time and from time to
time, at any public or private sale at the option of the Holder, without
advertisement or notice to any Obligor, except such notice as is required by law
and cannot be waived. The Holder may purchase the Collateral at any such sale
(unless prohibited by law) free from any equity of redemption and from all other
claims. After deducting all expenses including legal expenses and attorney's
fees as provided below, for maintaining or selling the Collateral and collecting
the proceeds of sale, the Holder shall have the right to apply the remainder of
said proceeds in payment of, or as a reserve against, any of the Obligations,
the manner, order and extent of such application to be in the sole discretion of
the Holder. To the extent notice of any sale or other disposition of the
Collateral is required by law to be given to any Obligor and cannot be waived,
the requirement of reasonable notice shall be met by sending such notice, as
provided below, at least ten (10) calendar days before the time of sale or
disposition. The Obligor shall remain liable to the Holder for the payment of
any deficiency with interest at the rate provided hereinabove. However, the
Holder shall not be obligated to resort to any Collateral but, at its election,
may proceed to enforce any of the Obligations in default against any or all of
the Obligors.
With respect to any and all Obligations, to the extent permitted by
applicable law, the Obligors and any indorsers of this note jointly and
severally waive the following: (1) all rights of exemption of property from levy
or sale under execution or other process for the collection of debts under the
constitution and laws of the United States or of any state thereof; (2) demand,
presentment, protest, notice of dishonor, suit against any party and all other
requirements necessary to charge or hold any Obligor or indorser liable on any
Obligation; (3) any further receipt for or acknowledgment of the Collateral now
or hereafter deposited and any statement of indebtedness; (4) all statutory
provisions and requirements for the benefit of any Obligor or indorser, now or
hereafter in force (to the extent that same may be waived); (5) the right to
interpose any set-off or counterclaim of any nature or description in any
litigation in which the Holder and any Obligor or indorser shall be adverse
parties; and (6) notice of any intended public or private sale or sales or other
intended disposition by the Holder of the Collateral or any part thereof. The
Obligors and indorsers agree that any Obligations of any Obligor may, from time
to time, in whole or in part, be renewed, extended, modified, accelerated,
compromised, discharged or released by the Holder, and any Collateral, lien
and/or right of set-off securing any Obligation may from time to time, in whole
or in part, be exchanged, sold, released, or otherwise impaired, all without
notice to or further reservations of rights against any Obligor or any other
person and all without in any way affecting or discharging the liability of any
Obligor or indorser. The Obligors jointly and severally agree to pay all filing
fees and taxes in connection with this note or the Collateral and all costs of
collecting or securing or attempting to collect or secure any of the
Obligations, including an attorney's fee in the amount which is 15% of the
unpaid balance of this note if this note is referred to an attorney, not a
salaried employee of the Holder, for collection following any default hereunder
by the Obligors.
The Holder shall not by any act, delay, omission or otherwise be deemed to
have waived any of its rights or remedies, and no waiver of any kind shall be
valid, unless in writing and signed by the Holder. All rights and remedies of
the Holder under the terms of this note and under statutes or rules of law are
cumulative and may be exercised successively or concurrently. The Obligors
jointly and severally agree that the Holder shall be entitled to all rights of a
holder in due course of a negotiable instrument. This note shall be governed by
and construed in accordance with the substantive laws of the United States and
the state where the office of the Bank set forth above in the first paragraph of
this note is located, without regard to the rules of such state governing
conflicts of law. Any provision of this note which may be unenforceable or
invalid under any law shall be ineffective to the extent of such
unenforceability or invalidity without affecting the enforceability or validity
of any other provision hereof. Any notice required to be given to any person
shall be deemed sufficient if delivered to such person or if mailed, postage
prepaid, to such person's address as it appears on this note or, if none
appears, to any address of such person in the Holder's files. The Holder shall
have the right to correct patent errors in this note. A photocopy of this note
may be filed as a financing statement in any public office.
The Obligors understand that the Bank may enter into participation
agreements with participating banks where the Bank will sell undivided interests
in this note to such other banks. The Obligors consent that the Bank may furnish
information regarding the Obligors, including financial information, to such
banks from time to time and also to prospective participating banks in order
that such banks may make an informed decision whether to purchase a
participation in this note. The Obligors hereby grant to each such participating
bank, to the extent of its participation in this Note, the right to set off
deposit accounts maintained by the Obligors, or any of them, with such bank,
against unpaid sums owed under this Note. Upon written request from the Holder,
the Obligors agree to make each payment under this note directly to each such
participating bank in proportion to the participant's interest in this Note as
set forth in such request from the Holder.
If, at any time, the rate or amount of interest, late charge, attorney's
fee or any other charge payable under this note shall exceed the maximum rate or
amount permitted by applicable law, then, for such time as such rate or amount
would be excessive, its application shall be suspended and there shall be
charged instead the maximum rate or amount permitted under such law, and any
excess interest or other charge paid by the Obligors or collected by the Holder
shall be refunded to the Obligors or credited, against the principal sum of this
note, at the election of the Holder or as required by applicable law. Obligors
agree that the late charge provided in this note is a reasonable estimate of
probable additional unanticipated internal costs to the Holder of reporting and
accounting for the late payment, that such costs are difficult or impossible to
estimate accurately, and that the agreement to pay a late charge is a reasonable
liquidated damages provision.
Notwithstanding any provision of this note to the contrary, if the
Obligors are one or more natural persons and the loan is used for personal,
family, or household use other than for the purchase of real property, the
following provisions are applicable: (a) the waivers of exemption of property
from levy or sale under execution or other process for the collection of debts,
as hereinabove provided, applies only with respect to the Collateral, if any,
for this note; (b) to the extent that any Separate Agreement covers property
which is "household goods", as that term is defined in 12 C.F.R. Section
227.12(d), and to the extent the proceeds of the loan evidenced by this note
were not used to purchase such property, such "household goods" do not
constitute any part of Collateral for the Obligations, and (c) whether or not
the loan is used to purchase real property, no consumer protection provision of
applicable law and no limitation on the remedy of garnishment provided under
federal or state law is waived hereby. Notwithstanding any provision of this
note to the contrary, if the proceeds of the loan evidenced by this note are
used primarily for personal, family, household or agricultural purposes, and if
Florida law governs this note, the agreement hereinabove made to pay an
attorney's fee for collection following default applies only if the original
principal balance of the loan exceeds $300, and the attorney's fee shall be a
reasonable fee not exceeding 15% of the unpaid balance of this note after
default and referral of this note to an attorney, not a salaried employee of the
Holder, for collection.
EACH INDORSER OF THIS NOTE AGREES TO BE BOUND BY THE PROVISIONS PRINTED OR
OTHERWISE APPEARING ABOVE AND ON THE FACE OF THIS NOTE, INCLUDING THE PROVISION
FOR PAYMENT OF ATTORNEY'S FEES FOR COLLECTION.
CAUTION - IT IS IMPORTANT THAT YOU THOROUGHLY READ THE
CONTRACT BEFORE YOU SIGN IT.
Signature See Separate Guaranty Dated May 1, 1996 (SEAL)
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SECURITY AGREEMENT
DEBTOR: [Last name(s) first, if individual(s)] SECURED PARTY:
Telecommunications Service Center, Inc. SouthTrust Bank of Florida,
National Association
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and Xxxxx Xxxxxxx P.O. Box 15708
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000 Xxxx Xxxxxxx Xx. Xxx. 0000 Xx. Xxxxxxxxxx, XX 00000
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mailing address
Tampa Hillsborough FL 33602 Date: May 1, 1996
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City County State Zip
1. For valuable consideration, receipt of which is hereby acknowledged,
and in further consideration of the Secured Obligations (as hereinafter
defined), the undersigned whether one or more than one, hereinafter referred to
as "Debtor") hereby grants, bargains, sells, conveys, assigns, and sets over to
the Secured Party named above (hereinafter referred to as "Secured Party"), and
grants to Secured Party a security interest in, the following property and
rights of Debtor (check applicable box(es)):
| | A. all inventory of Debtor, whether now owned or hereafter acquired
(Inventory and by Debtor and wherever located, including, without limitation,
Documents) all goods, merchandise, raw materials, work in process, finished
goods, and other tangible personal property held for sale or
lease or furnished under contracts of service or used or consumed
in Debtors business and returned and repossessed goods; all
Documents now or hereafter evidencing any such inventory; and all
proceeds and products of the foregoing; and
|X| B. all Accounts, General Intangibles, Instruments, and Chattel
(Accounts, Paper, whether now owned or hereafter acquired by Debtor and
Intangibles, whether now existing or hereafter arising, and all proceeds of
Instruments, the foregoing, whether cash or non-cash, including returned and
Chattel Paper) repossessed goods; and
|X| C. all Equipment, including, without limitation, all machinery,
(Equipment) computer equipment and peripherals, furniture, furnishings, and
motor vehicles, and all replacements thereof and substitutes
therefor, and all accessories, additions, attachments and other
goods now or hereafter installed in or affixed thereto or used in
connection therewith, whether any of the foregoing now owned or
hereafter acquired by Debtor and wherever located, and all
proceeds thereof (but inclusion of proceeds shall not be deemed
to imply that Secured Party authorizes the sale or other transfer
or disposition of any such Equipment); |X| If this box is
checked, the term "Equipment" as used in this agreement also
includes Fixtures, including leasehold improvements and machinery
and appliances which are attached to the real property in such a
manner as to become Fixtures; and
| | D. all crops (whether annual or perennial) and all livestock
(Farm (including fowl) and all natural increase thereof, all feed,
Products) seed, fertilizer and other supplies used or produced in farming
operations, and all products of crops and livestock in their
unmanufactured states, whether any of the foregoing is now owned
or hereafter acquired by Debtor and wherever located, all
contracts for the sale by Debtor of any of the foregoing, and all
crop or acreage allotments, price supports or supplements and
rights under governmental programs, and all proceeds of all of
the foregoing, provided that no security interest attaches
hereunder to crops which become such more than one year after
this Security Agreement is executed unless the security interest
in crops is given in conjunction with a lease or a land purchase
or improvement transaction evidenced by a separate contract,
mortgage, deed of trust or deed to secure debt. The security
interest herein granted covers, without limitation, all crops
growing or to be grown on the real property described on any
Exhibit attached hereto.
(All of the property and rights described In A, B, C, and D above (as
applicable) are sometimes hereinafter referred to collectively as "the
Collateral.")
2. This agreement and the security interest herein granted, secures the
payment and performance of every loan and other extension of credit heretofore,
now, or hereafter made to Debtor by Secured Party, any extensions or renewals
thereof, all interest due or to become due to Secured Party on each such loan or
other extension of credit, every note or other writing now or hereafter
evidencing the obligation of Debtor to repay any such loan or other extension of
credit and/or the interest thereon, every guaranty of payment or collection of
the debt of another heretofore, now, or hereafter entered into by Debtor with
Secured Party, every letter of credit reimbursement agreement heretofore, now,
or hereafter entered into by Debtor with Secured Party, every lease of personal
property heretofore, now, or hereafter entered into by Debtor with Secured
Party, the payment and performance of all of Debtor's obligations under this
agreement, and all other indebtedness and other obligations of Debtor to Secured
Party, including all sums paid to Secured Party for Debtor's account by Debtor
or any other person which are later recovered back from Secured Party by Debtor
or any creditor of Debtor or any representative of Debtor or of Debtor's
creditors, such as a trustee in bankruptcy, whether any of the foregoing debts
and other obligations are joint or several, primary or secondary, direct or
indirect, otherwise secured or unsecured, whether originally payable or owed to
Secured Party or acquired by Secured Party from another (the terms "with Secured
Party" and "by Secured Party" in this sentence being expressly intended to
include Secured Party's assignors and predecessors in interest), and whether now
existing or hereafter incurred prior to termination of this agreement as
hereinafter provided. (All of the debts and other obligations described in the
preceding sentence are hereinafter referred to collectively as the "Secured
Obligations.")
3. Debtor represents and warrants to Secured Party that:
(a) Debtor's Inventory, Equipment and/or Farm Products are kept or stored
only at the address shown below Debtor's name at the beginning of this agreement
and at the following address(es) (use separate schedule if necessary):
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Street Address City County State Zip
(Failure to list any address where Inventory, Equipment or Farm Products are
kept shall not limit Secured Party's security interest, which covers all
Inventory, Equipment and/or Farm Products of Debtor, wherever located.)
Debtor agrees not to keep or store any Inventory, Equipment and/or Farm Products
at any address other than those set forth above except upon not less than 10
days advance notice in writing to Secured Party and upon compliance with the
remaining terms of this agreement.
(b) The address where the records concerning Xxxxxx's Accounts are kept
and the address of Xxxxxx's chief executive office is the address shown below
Xxxxxx's name at the beginning of this agreement. Xxxxxx agrees not to change
the address where the records concerning Xxxxxx's Accounts are kept or the
address of Xxxxxx's chief executive office except upon not less than 10 days
advance notice in writing to Secured Party and compliance with the remaining
terms of this agreement
(c) If Debtor is a corporation, Debtor is duly organized and existing in
good standing under the laws of the state of its incorporation and is duly
qualified and in good standing in every other state in which the nature of its
business or the ownership of its properties makes qualification necessary.
(d) If Debtor is a corporation, the execution, delivery, and performance
of this agreement are within Debtor's corporate powers, have been duly
authorized, are not in contravention of law or the terms of Debtor's certificate
of Incorporation, by-laws, or other incorporation papers, or of an Indenture,
agreement or undertaking to which Debtor is a party or by which Debtor is bound.
(e) Except for the security interest granted herein, and except as
otherwise noted in writing herein or on a schedule attached hereto, Debtor is,
and, as to Collateral acquired after the date hereof, will be, the owner of the
Collateral free from any adverse lien, security interest or encumbrance.
4. If paragraph 1.A, 1.C., or 1.D. above is marked, Xxxxxx agrees with
Secured Party as follows:
Debtor will maintain insurance at all times with respect to all
Inventory, Equipment and Farm Products against risk of fire (including so-called
extended coverage), theft, water damage and such other risks as Secured Party
may require from time to time and, in the case of motor vehicles, against risk
of collision and vandalism, in such form, for such perils, and written by such
companies as may be satisfactory to Secured Party. Secured Party shall be named
as loss payee under such policies of insurance. Debtor may furnish such
insurance through an existing policy or a policy independently obtained and paid
for by Debtor. All policies of insurance shall provide for a minimum of 10 days
written notice to Secured Party before cancellation. At request of Secured
Party, Xxxxxx will deliver such policies, or at Secured Party's option,
certificates thereof, to Secured Party to be held by it. Debtor hereby appoints
Secured Party the attorney-in-fact for Debtor for purposes of obtaining,
adjusting, settling, and cancelling such insurance and of endorsing in Debtor's
name and giving receipt for checks and drafts issued in payment of losses and as
return premiums. In the event Debtor fails to provide any insurance as required
herein, Secured Party may, at its option, purchase such insurance or, at Secured
Party's option after 10 days' notice to Debtor, insurance covering only Secured
Party's interest in the Inventory, Equipment and Farm Products. Xxxxxx agrees to
reimburse Secured Party on demand for the cost of such insurance. Debtor hereby
assigns all insurance policies at any time covering the Inventory, Equipment or
Farm Products and all return or unearned premiums thereon to Secured Party as
additional collateral for the Secured Obligations.
5. If paragraph 1.A. above is marked, Xxxxxx agrees with Secured Party as
follows:
(a) Debtor will allow Secured Party and any of its officers, agents,
attorneys, or accountants to examine or inspect the inventory wherever located
at all reasonable times and to examine, inspect and make extracts from Debtor's
books and records.
(b) Debtor will keep the Inventory, all Documents with respect
thereto, and proceeds of both free from any adverse lien, security interest or
encumbrance, except that Debtor may, with Secured Party's written consent
obtained in advance, grant a security interest in its Accounts, General
Intangibles, Instruments, and/or Chattel Paper to another creditor. Debtor will
keep the inventory in good condition, and will not waste or destroy any of the
same. Debtor will not use the Inventory in violation of any statute or
ordinance.
(c) Until the occurrence of a default hereunder, Debtor may use the
Inventory in any lawful manner which is consistent with Debtor's usual business
and is not inconsistent with this agreement or with the terms or conditions of
any policy of insurance thereon, and may sell the Inventory in the ordinary
course of business. A sale in the ordinary course of business does not include a
transfer in partial or total satisfaction of a debt. Until the occurrence of a
default, Debtor may also use and consume any raw materials or supplies, the use
and consumption of which is necessary in order to carry on Debtor's usual
business.
IN WITNESS WHEREOF, Xxxxxx has executed this agreement under seal, or the
officers or agents of Debtor thereunto duly authorized have executed this
agreement on behalf of Debtor, on or as of the date set forth above.
The provisions on the reverse side and on any attachments are part of this
agreement.
ATTEST OR WITNESS: Telecommunications Service Center, Inc.
and Xxxxx Xxxxxxx
----------------------------------(SEAL)
------------------------- By /s/ Xxxxxx Xxxxxxxxx President
-------------------------------------
Xxxxxx Xxxxxxxxx Title
Signature Xxxxx Xxxxxxx
------------------------(SEAL)
Xxxxx Xxxxxxx, Director
Page 1 of 3
Additional signers on Page 3 Initials: [ILLEGIBLE]
(d) Upon request of Secured Party at any time, Debtor will deliver
to Secured Party lists or copies of all Accounts which are proceeds of Inventory
or Farm Products promptly after they arise. Unless Secured Party shall have
otherwise agreed with Debtor in writing, Debtor will deliver to Secured Party,
promptly upon receipt, all proceeds (except goods) of the Inventory or Farm
Products received by Debtor, including proceeds of such Accounts, in precisely
the form received by Debtor, except for the endorsement of Debtor where
necessary to permit the collection of such proceeds (which endorsement Debtor
hereby agreed to make) Debtor agrees not to mingle any proceeds of the Inventory
or Farm Products with any of Debtor's own funds, goods or property, and at all
times to hold such proceeds upon express trust for the Secured Party until
delivery thereof is made to Secured Party. To evidence Secured Party's rights
hereunder, Xxxxxx will assign or endorse proceeds to Secured Party in such form
as Secured Party may request and Secured Party shall have the full power and
authority to collect, compromise, endorse, sell, or otherwise deal with proceeds
in its own name or that of Debtor. Secured Party in its discretion may apply
cash proceeds to the payment of any of the Secured Obligations or may release
such cash proceeds to Debtor for use in the operation of Debtor's business.
(e) With respect to proceeds of the Collateral in the form of
Accounts, Secured Party may at any time before or after default notify account
debtors that the Accounts have been assigned to Secured Party and shall be paid
to Secured Party. Upon request of Secured Party at any time Debtor will so
notify such account debtors and will indicate on all invoices to such account
debtors that the Accounts are payable to Secured Party.
6. If paragraph 1.B. is marked above, Xxxxxx hereby agrees with Secured
Party as follows:
(a) For the consideration recited in paragraph 1 above, Debtor
hereby leases to Secured Party, during the term of this agreement, all file
cabinets, books, ledgers, microfilm, microfiche, magnetic tapes, magnetic discs,
and other information retrieval or storage systems, on which, or in which, any
of Debtor's records concerning its Accounts, General Intangibles, Instruments,
and Chattel Paper, are kept or stored. Xxxxxx agrees to deliver all of the
foregoing property, or any part thereof specified by Secured Party, to Secured
Party upon request. Debtor agrees that Secured Party may come on any premises
where any of such property is located at any reasonable time to take possession
of such property, and that the entry of such premises by Secured Party will not
constitute a trespass and the taking of such property by Secured Party will not
constitute a trespass to, or a conversion of, any such property.
(b) Secured Party shall have the right at any time, whether before
before or after the occurrence of a default hereunder by Xxxxxx, to notify any
or all account debtors on the Accounts or General Intangibles, and any or all
obligors on the instruments or Chattel Paper, to make payment directly to
Secured Party, or to make payment to an address (a "lock box") under the
exclusive control of Secured Party. Upon request of Secured Party, Xxxxxx agrees
immediately to notify such account debtors and obligors to make payment directly
to Secured Party or to such lock box and to place Secured Party's address or
such lock box's address on Xxxxxx's invoices and statements as the address to
which payment should be made. To the extent Secured Party does not so elect to
notify, or does not request Debtor to notify, the account debtor or obligors,
Debtors shall continue to collect the Collateral. Xxxxxx agrees not to mingle
any proceeds of any of the Collateral with any of Debtor's own funds, goods or
property, and at all times to hold such proceeds upon express trust for the
Secured Party until delivery thereof is made to Secured Party. Xxxxxx agrees to
deliver all proceeds of the Collateral, in precisely the form received by
Xxxxxx, except for the endorsement of Debtor where necessary to permit the
collection of such proceeds (which endorsement Debtor hereby agrees to make).
Secured Party may apply such proceeds to any of the Secured Obligations, whether
or not such Secured Obligations shall have matured by their terms, or Secured
Party may, at its option, release such proceeds to Debtor for use in Debtor's
business. Secured Party need not apply nor give credit for any item included in
such proceeds until Secured Party has received final payment therefor at its
offices in cash or solvent credits acceptable to Secured Party.
(c) Weekly, monthly, or at such other intervals as Secured Party
shall designate, Debtor will deliver to Secured Party lists and agings of all of
Debtor's Accounts in such form, and in such detail, as Secured Party shall
require, together with copies of invoices, delivery receipts, bills of lading,
and such other documents in support of Debtor's Accounts as Secured Party shall
require.
(d) If any of the Accounts arise out of contracts with the United
States or any agency thereof, Xxxxxx agrees to notify Secured Party thereof and
to execute such documents as shall be necessary to permit Secured Party to
perfect its right to receive payment under the federal Assignment of Claims Act.
(e) Upon request of Secured Party, Debtor will purchase insurance
covering the loss of, and cost of reconstruction of, Xxxxxx's records of its
Accounts, General Intangibles, Chattel Paper and Instruments, such insurance to
be issued by an insurer acceptable to Secured Party and to contain such coverage
provisions as Secured Party shall request.
7. Debtor hereby covenants, represents, and warrants as follows:
(a) Xxxxxx agrees to keep all records concerning the Collateral in a
fireproof and safe place and, upon request of Secured Party, to make such
records available to Secured Party, its agents, attorneys, and accountants, at
any reasonable time and without hindrance or delay to allow Secured Party to
inspect, audit, check or make extracts from such records.
(b) Debtor hereby represents, warrants and agrees with Secured Party
that: (i) (except as otherwise noted in writing hereon or in a schedule attached
to this agreement) Debtor is the owner of the Collateral, free and clear of all
liens and encumbrances, and has the full right and power to transfer the
Collateral to Secured Party and to grant to Secured Party the security interest
provided in this agreement; (ii) Debtor will not make any other assignments of
the Collateral, nor create any other security interest therein, nor permit any
other financing statement to be filed in any public office with respect thereto
(except as otherwise expressly agreed in writing by Secured Party), nor permit
either Debtor's or Secured Party's rights therein to be reached by attachment,
levy, garnishment, or other judicial process; (iii) each debt owing to Debtor
which is a part of the Collateral, and all names of all account debtors, amounts
owing, due dates, and other facts appearing on Debtor's records relating
thereto, are true, correct and genuine and are what they purport to be, and each
such debt arises out of a bona fide sale of goods or other property sold and
delivered to, or out of services heretofore tendered by Debtor to, the account
debtors so indicated, and the amount of each such debt is unconditionally owed
to Debtor by each such account debtor, except for normal cash discounts, and is
not subject to any offset, credit, deduction, or counterclaim, and Debtor is the
sole owner thereof; (iv) Debtor will promptly notify Secured Party in writing in
the event any such account debtor refuses to accept or returns any goods which
are the subject of any debt owed to Debtor which is a part of the Collateral,
and of the bankruptcy, insolvency, or cessation of business of or by any such
account debtor, and of any Claim asserted against Debtor for credit allowance,
adjustment, offset or counterclaim by any such account debtor; (v) Debtor agrees
not to sell or otherwise dispose of any Equipment except worn out or obsolete
Equipment which are immediately replaced with other Equipment of equivalent
function and of equal or greater value (and if a motor vehicle, upon which the
lien of Secured Party has been properly noted on the certificate of title
therefor); (vi) Debtor agrees not to sell, collect, assign, negotiate, or
otherwise transfer any of Debtors Inventory, Accounts, General Intangibles,
Instruments, or Chattel Paper outside the ordinary course of Debtor's business
as conducted on the date of this agreement; and (vii) all of Debtor's Inventory
is and will be produced in compliance with the federal Fair Labor Standards Act.
(c) Debtor hereby irrevocably makes, constitutes, and appoints
Secured Party and any of its officers or designees as Debtor's true and lawful
attorney-in-fact with full power and authority to do any and all acts necessary
or proper to carry out the intent of this agreement, including, without
limitation, the right, power and authority (i) to receive and give receipt for
any amount or amounts due or to become due to Debtor on account of the
Collateral and to endorse and negotiate in the name of Debtor any check or other
item issued in payment or on account thereof, and in the name of Secured Party
or of Debtor to enforce by suit or otherwise, compromise, settle, discharge,
extend the time of payment, file claims or otherwise participate in bankruptcy
proceedings, and otherwise deal in and with the collateral and any proceeds
thereof; (ii) to open mail addressed to Debtor, remove any Collateral or
proceeds of the Collateral therefrom, and deliver the remainder of such mail to
Debtor, and (iii) to do all acts and things deemed by Secured Party to be
appropriate to protect, preserve and realize upon Secured Party's security
interest hereunder; but Secured Party shall not be under any duty to exercise
such authority or power or in any way responsible for collecting or realizing
upon the Collateral. Debtor hereby ratifies and confirms all that Secured Party,
its officers or designees, shall do as such attorney-in-fact by virtue of the
foregoing powers, which power is coupled with an interest and are irrevocable
until this agreement has been terminated as hereinafter provided.
8. (a) Debtor shall do, make, execute, and deliver to Secured Party all
such additional and further acts, things, assignments, assurances, and
instruments as Secured Party may require to more completely vest in and assure
to Secured Party its rights hereunder and in or to the Collateral and the
proceeds thereof. Debtor will deliver all Instruments, Documents, and Chattel
Paper which constitute a part of the Collateral to Secured Party upon request,
duly endorsed by Debtor to the order of Secured Party or in blank in form
satisfactory to Secured Party.
(b) Debtor will pay promptly when due all taxes and assessments upon
the Collateral or any part thereof, upon its use or operation, upon the proceeds
thereof, upon this Security Agreement, or upon any note or notes evidencing the
Secured Obligations. At its option, Secured Party may discharge any taxes,
liens, security interests or other encumbrances at any item levied or placed on
the Collateral or any part thereof and may pay for the maintenance and
preservation of the Collateral, but Secured Party shall not be under any duty to
exercise any such authority. Xxxxxx agrees to reimburse Secured Party, upon
demand, for any payment made or any expense incurred by the Secured Party
pursuant to the foregoing authorization.
(c) All sums expended by Secured Party which Debtor is obligated to
reimburse Secured Party under this agreement shall bear interest from the date
reimbursement is due until the date paid at the rate provided in the note
evidencing the Secured Obligation with respect to which the sum was expended by
Secured Party, or if no single such note exists or is identifiable, then at the
rate which is two percentage points in excess of the average of the prime rate
of the three largest banks in New York City three business days before the
expenditure was made, but in any event not more than the maximum rate allowed by
law. All such sums and the interest thereon shall be secured by the security
interest granted in this agreement.
(d) At the request of Secured Party, Xxxxxx will execute financing
statements pursuant to the Uniform Commercial Code in form and number
satisfactory to Secured Party and will pay the cost of filing the same in all
public offices where filing is deemed by Secured Party to be necessary or
desirable. Xxxxxx agrees that a carbon or photostatic copy of this agreement may
be filed as a financing statement in any public office. If certificates of title
are issued or outstanding with respect to any of the Collateral, Debtor will
cause the interest of Secured Party to be properly noted thereon at Debtor's
expense. Without the written consent of Secured Party, Debtor will not allow any
adverse financing statement covering any of the Collateral to be on file in any
public office. Secured Party may elect not to perfect its security interest in
all or any part of the Collateral without discharging or otherwise impairing its
rights against Debtor or any other party.
9. Any or all Of the Secured Obligations shall, at the option of Secured
Party and notwithstanding the stated maturity date of any instrument evidencing
any such Secured Obligation, become immediately due and payable without notice
or demand upon the occurrence of any of the following events, each of which
shall constitute a default hereunder;
(a) Xxxxxx's failure to pay or perform as and when due any of the
Secured Obligations or any note evidencing the same;
(b) Xxxxxx's failure to pay or perform as and when due any covenant
contained in this agreement or if any warranty or representation made or any
writing furnished to Secured Party by or on behalf of Debtor in or in connection
with this agreement is breached or is false or inaccurate in any material
respect when made or furnished;
(c) Any event occurs which results in the acceleration of the
maturity of any indebtedness of Debtor to others under any indenture, agreement,
or undertaking;
(d) Loss, theft, damage, or destruction of any material part of the
Collateral, or any levy, seizure, garnishment or attachment thereof or thereon;
(e) Death, dissolution, termination of existence, insolvency,
cessation or business, or appointment of a receiver for any part of the property
of, general assignment for the benefit of creditors by, or the commencement of
any proceeding under any chapter of the Federal Bankruptcy Code or any
insolvency laws by or against, Debtor or any guarantor or surety for Debtor on
any of the Secured Obligations.
SF52712 (C) SouthTrust Corporation Rev. 10/90
Page 2 of 3 /s/ [Illegible] Initials
---------------
10. Upon the occurrence of any event of default set forth in the preceding
paragraph, and at any time thereafter, Secured Party shall have the right to
take possession of all or any part of the Collateral and, with or without taking
possession thereof, to sell the Collateral at one or more public or private
sales, at Secured Party's option and collect the Accounts, Instruments, Chattel
Paper, and General Intangibles which are a part of the Collateral. At Secured
Party's request, Xxxxxx agrees to assemble the Collateral and to make it
available to Secured Party at a place to be designated by Secured Party which is
reasonably convenient to both parties. Debtor waives any notice of sale or other
disposition of the Collateral and agrees that notice of sale or other
disposition of the Collateral hereunder, or any part thereof, which cannot be
waived shall be sufficient if such notice is delivered to Debtor or mailed,
postage prepaid, to the address of Debtor shown at the beginning of this
agreement, or such other address as Debtor shall have furnished Secured Party in
writing for such purpose, at least ten (10) calendar days before the time of the
sale or disposition. Debtor agrees to pay Secured Party on demand any and all
expenses, including attorneys' fees in the amount of 15% of the unpaid balance
of the Secured Obligations at the time of default (or the maximum fee allowed by
law, if less than 15%, or a reasonable attorney's fee if applicable law does not
permit the parties to agree to the amount of the attorney's fee prior to
default) incurred or paid by Secured Party in protecting or enforcing the
Secured Obligations and the rights of Secured Party hereunder, including Secured
Party's right to take possession of and sell or dispose of the Collateral, and
in repossessing and storing the Collateral, collecting the Collateral, preparing
the Collateral for sale, advertising and conducting such sale, and collecting
the proceeds of such sale. Payment of all such expenses and the interest thereon
shall be secured by the security interest granted in this agreement. The
proceeds of any sale or other disposition or collection of the Collateral shall
be applied, first, to the payment of all costs and expenses incurred by Secured
Party in connection with such sale or other realization including, without
limitation, attorneys' fees as specified above and all costs of litigation, and
to the repayment of all advances made by Secured Party hereunder for the account
of Debtor and the payment of all costs and expenses paid or incurred by Secured
Party in connection with this agreement or in the exercise of any right or
remedy hereunder or under applicable law, to the extent that such advances,
costs and expenses have not previously been paid to Secured Party upon demand to
Debtor therefor; second, to the payment of the Secured Obligation in such order
as Secured Party may elect; and third, to Debtor, or the person then entitled
thereto, or as a court of competent jurisdiction may direct. No sale or other
disposition of any of the Collateral shall extinguish any of the Secured
Obligations except to the extent that the net proceeds of such sale or
disposition are applied thereto. Debtor will remain obligated to pay any
deficiency.
11. Secured Party shall have the right to set off the Secured Obligations
against any indebtedness or liability of Secured Party to Debtor at any time
existing. As additional security for the Secured Obligations, Debtor hereby
transfers and assigns to Secured Party, and grants to Secured Party a security
interest in, all account balances, credits, deposits, and rights of withdrawal
of Debtor with Secured Party, whether now owned or hereafter acquired, and
whether jointly or severally held, and Xxxxxx agrees that Secured Party shall
have a lien upon and security interest in all property of Debtor of every kind
now or hereafter in the possession or control of Secured Party for any reason.
12. (a) Secured Party's rights and remedies hereunder, under other
agreements or instruments, and under applicable law (including the Uniform
Commercial Code) are cumulative and may be exercised successively or
concurrently. Secured Party shall not be deemed to have waived any of its rights
hereunder, under any other agreement or instrument, or under law except in a
writing signed by Secured Party. No delay or omission on the part of Secured
Party in exercising any right or remedy shall operate as a waiver thereof, and a
written waiver on any one occasion shall not be construed as a bar or waiver of
any right or remedy on any future occasion.
(b) Whenever there is no outstanding Secured Obligation and no
commitment on the part of Secured Party under any agreement which might give
rise to a Secured Obligation, Secured Party will deliver to Debtor a written
termination of this agreement upon written request therefor from Debtor. Prior
to such termination this shall be a continuing agreement in every respect.
(c) This agreement and all rights and obligations hereunder,
including matters of construction, validity, and performance, shall be governed
by the laws of the state where the address of Secured Party set forth above is
located. This agreement is effective when signed by Xxxxxx and delivered to
Secured Party, and binds Debtor and inures to the benefit of Secured Party and
their respective heirs, successors, and assigns. The provisions of this
agreement are severable, and the invalidity or unenforceability of any provision
hereof shall not affect the remaining provisions of this agreement.
(d) All terms used in this agreement which are not expressly defined
herein shall have the meaning, if any, assigned to them in Article 9 of the
Uniform Commercial Code.
(e) Time is of the essence of every provision of this agreement.
Additional Signers for Telecommunications Service Center, Inc. and Xxxxx
Xxxxxxx:
/s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx, CEO
/s/ Xxxxx Xxxxxxx
----------------------------------
Xxxxx Xxxxxxx, Individually
SF52712 (C) SouthTrust Corporation Rev. 10/90
Page 3 of 3 /s/ [Illegible] Initials
---------------
FURTHER ASSURANCE AND COMPLIANCE AGREEMENT
For and in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, and the funding of that certain Loan of even date in the
amount of $400,000.00 from SOUTHTRUST BANK OF Florida, National Association
(herein, "Bank") to the borrower agrees to cooperate, adjust, initial,
re-execute and re-deliver any and all closing documents, including but not
limited to any notes, mortgages, deeds, affidavits and closing statements if
deemed necessary or desirable in the sole discretion of the bank in order to
consummate or complete the Loan from the Bank to Borrower or to perfect the
Bank's lien or mortgage. It is the Intention of the Borrower that all
documentation for the Loan shall be an accurate reflection of the Bank's
requirements.
The Borrower agrees and convenants to assure that the Loan and its
documentation will conform to the Bank's requirements. The Bank is relying upon
this Agreement and the convenants contained herein in closing this transaction
and funding the Loan to Borrower.
Bank shall have the right to bring suit to enforce the obligations
incurred in connection with this Agreement, and in the event any suit is brought
to enforce this Agreement, the Bank shall be entitled to recover all costs and
expenses incurred, including a reasonable attorney fee.
DATED this 1st day of May, 1996
WITNESSES: "BORROWER(S)":
Telecommunications Service Center,
------------------------------- Inc. and Xxxxx Xxxxxxx
/s/ X X Xxxxx, Xx. /s/ Xxxxxx Xxxxxxxxx
------------------------------- -------------------------------------
Xxxxxx Xxxxxxxxx, President
/s/ [Illegible] /s/ Xxxxx Xxxxxxx
------------------------------- -------------------------------------
Xxxxx Xxxxxxx, Director
------------------------------
/s/ [Illegible] /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx, CEO
Loan # 9520773-00002
-----------------------
/s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
SF 1035 3/90
