EXHIBIT 10.37
LOAN AGREEMENT
THIS LOAN AGREEMENT made and entered into this 8th day of January,
1991, by and between COMPUTER SCIENCE INNOVATIONS, INC., as (the "Company") and
SUN BANK, NATIONAL ASSOCIATION, a National Banking Association, with its
principal banking offices located in Orlando, Orange County, Florida (the
"Bank").
WITNESSETH:
WHEREAS, the Company wishes to borrower from the Bank the sum of
$1,000,000.00 on a revolving line of credit as an operating line, hereinafter
referred to as Loan "A"; and the sum of $500,000.00 as a further revolving line
of credit to support the Company's Egyptian Contract, hereinafter referred to as
Loan "B"; and
WHEREAS, the Bank is willing to make such loans upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants and conditions contained herein, the Company and Bank agree as
follows:
ARTICLE ONE
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Definitions. For the purposes of this Agreement, the
following terms shall have the respective meanings specified in this Section
1.01 (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
(a) "Agreement" shall mean this Loan Agreement.
(b) "Bank Office" shall mean any branch office of the Bank located in
Brevard County, Florida, which office is an office of the Bank and not a
separate and distinct entity from the Bank.
(c) "Current Assets" shall mean those assets which in the regular course of
business of the Company and its subsidiaries on a consolidated basis will be
readily and quickly realized or converted into cash, all in accordance with GAAP
within the applicable accounting or time period, together with such additional
assets as may readily be converted into cash without impairing the business of
the Company and its subsidiaries and shall include cash, temporary investments,
receivables, inventories and pre-payments, but shall exclude loans to
stockholders.
(d) "Current Liabilities" shall mean those liabilities of the Company and
its subsidiaries on a consolidated basis or any portion thereof. Current
liabilities shall be defined as current maturities of long term debt plus notes
payable less than one (1) year, plus accounts payable, plus taxes payable, plus
accrued expenses, and any other liabilities due or that shall become due within
a twelve (12) month period.
(e) "Debt to Net Worth Ratio" shall mean the ratio of total liabilities to
Tangible Net Worth.
(f) "Due Date" shall mean the date any payment of principal or interest is
due and payable on the Loan or Note.
(g) "Event of Default" shall mean an event of default specified in Article
Seven of this Agreement.
(h) "GAAP" shall mean generally accepted accounting principles consistently
applied to the particular item.
(i) "Interest Coverage Ratio" shall mean earnings before interest expense
and taxes divided by interest expense.
(j) "Loan" shall mean the following credit facilities made to the Company
by the Bank pursuant to an in accordance with the terms of this Loan Agreement:
l) Revolving Line of Credit in the amount of $1,000,000.00 (Loan "A")
2) Revolving Line of Credit in the amount of $500,000.00 (Loan "B")
(k) "Loan Documents" shall mean this Agreement, the Notes, the Security
Agreement, UCC Financing Statements, Collateral Assignment of Contract Rights,
Landlord Lien Waivers, Loan Commitment and all of the other documents,
agreement, certificates, schedules, notes, statements and opinions, however
described, referenced herein or executed or delivered pursuant hereto or in
connection with or arising with the Loan or the transactions contemplated by
this Agreement.
(l) "Loans from Stockholders" shall mean all loans or other advances made
to the Company from one or more Stockholder from time to time.
(m) "Loan to Stockholders" shall mean all loans or other advances made by
the Company to one or more Stockholders from time to time.
(n) "Note" shall mean the Company's Promissory Note or Notes evidencing the
Loan substantially in the form of Exhibit "A" attached hereto.
(o) "Obligations" shall mean, individually and collectively, the payment
and performance of duties, obligations and liabilities of the Company to the
Bank as described in or required by the Loan Documents.
(p) "Person" shall mean any individual, joint venturer, partnership, firm,
corporation, trust, unincorporated organization or other organizational entity,
or a governmental body or any department or agency thereof, and shall include
both the singular and the plural.
(q) "Prime Rate" shall mean the "annual interest rate announced by Sun
Bank, Inc., from time to time as the Prime Rate (which interest rate is only a
benchmark, is purely discretionary and is not necessarily the best or lowest
rate charged borrowing customers of any subsidiary bank of Sun Banks Inc.). Any
such change in the Prime Rate will increase or decrease the periodic payments."
NOTE: Any change in the Prime Rate shall be effective at the beginning of the
business day on which such change is announced.
(r) "Principal Place of Business" shall mean the offices of the Company at
which its records are kept at 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxx Xxx, Xxxxxxx
00000.
(s) "Total Liabilities" shall mean the aggregate amount of all liabilities
of the Company and its subsidiaries on a consolidated basis as determined by
GAAP.
(t) "Tangible Net Worth" shall mean the excess of (a) the tangible assets
of the Company on a consolidated basis which, in accordance with GAAP, are
tangible assets, after deducting adequate reserves in each case where, in
accordance with GAAP, a reserve is proper, over (b) all liabilities, excluding
minority interest, provided, however, that (i) inventory shall be taken into
account on the basis of the cost or current market value, whichever is lower,
(ii) in no event shall there be included as such tangible assets patents,
trademarks, tradenames, copyrights, licenses, goodwill or treasury stock or any
securities or liabilities of the Company unless the same are readily marketable
in the United States of America, and are entitled to be used as a credit against
federal income tax liabilities, (iii) securities included as such tangible
assets shall be taken into account at their current market price or cost,
whichever is lower, and (iv) any write-up in the book value of any assets shall
not be taken into account.
(u) "Year" shall mean the calendar year from January through December 31,
inclusive.
(v) "Current Maturities of Long Term Debt" shall mean that portion of
installment or term debt that must be paid within twelve (12) months from the
balance sheet date. The obligation shall be shown separately from Bank notes
payable in accordance with GAAP.
(w) "Amortization" shall mean the process of charging off an intangible
over a period of years according to GAAP.
(x) "Commitment" shall mean the Bank's commitment letter dated August 6,
l990 and further amended August l0, l990, a copy of which is attached hereto as
Exhibit "B" and by reference made a part hereof.
Section l.02. Accounting Terms. All accounting terms used herein shall be
construed in accordance with GAAP consistently applied.
ARTICLE TWO
AMOUNT AND TERMS OF THE LOAN
Section 2.0l. The Loan. The Bank agrees to lend or make available to the
Company, the following credit facilities:
(a) A Revolving Loan in the aggregate principal amount of $1,000,00.00
(Loan "A"). The purpose of this Loan is to make available to the Company an
operating line.
(b) A further Revolving Line of Credit in the aggregate principal amount of
$500,000.00 (Loan "B"). The purpose of Loan "B" is to make available to the
Company, the sum of $500,000.00 as working capital for the Company's contract
with the Egyptian Government. Prior to the funding of any monies under this
Revolving Line of Credit, the Bank shall receive for its review and approval, a
fully executed contract between the Company and the Egyptian Government or the
appropriate U.S. Agency acting on their behalf, which contract shall provide a
statement of work and shall be assignable as collateral as provided for in
Section 6.02 of this Agreement.
Section 2.02. Interest on The Note. The Loan shall be evidenced by the
Notes attached hereto as Exhibit "A" and shall be due and payable in accordance
with and as required by the terms and conditions contained therein and as
hereinafter provided in Section 2.07. The Company shall not be liable under the
Notes except with respect to funds actually advanced to the Company by the Bank
pursuant to the terms hereof. The Note interest on the Notes evidencing each of
the credit facilities shall be paid as follows:
(a) The note for Loan "A" in the amount of $1,000,000 shall bear interest
from the date thereof on the unpaid principal balance thereof from time to time
outstanding at a fluctuating interest rate per annum equal to the lesser of (i)
the interest: rate announced by Sun Bank, Inc., from time to time as the Prime
Rate (as herein defined) plus .75%, or (ii) the maximum rate of interest
permitted by law. Each change in the fluctuating interest rate on the Note due
to a change in the Prime Rate shall be effective as of the opening of business
for the Bank on the date of such change in the Prime Rate.
(b) The note for Loan "B" in the amount of $500,000.00 shall bear interest
from the date thereof on the unpaid principal balance thereof from time to time
outstanding at a fluctuating interest rate per annum equal to the lesser of (i)
the interest rate announced by Sun Bank, Inc., from time to time as the Prime
Rate (as herein defined) plus .75% or (ii) the maximum rate of interest
permitted by law. Each change in the fluctuating interest rate on the Note due
to a change in the Prime Rate shall be effective as of the opening of business
for the Bank on the date of such change in the Prime Rate.
Section 2.03. Calculation of Interest. Interest due on the Loan shall be
calculated on a 360 day year. The interest due on any date for payment of
interest hereunder shall be that interest to the extent accrued as of midnight
on the last calendar day immediately prior to that interest payment date.
Notwithstanding anything herein or in any Loan Document to the contrary, the sum
of all interest and all other amounts deemed interest under Florida or other
applicable law which may be collected by the Bank hereunder shall not exceed the
maximum lawful interest rate permitted by such law from time to time. The Bank
and the Company intend and agree that under no circumstance shall the Company be
required to pay interest on the Loans or on any other Obligations at a rate in
excess of the maximum interest rate permitted by applicable law in effect from
time to time, and in the event any such interest is received or charged by the
Bank in excess of the rate, the Company shall be entitled to an immediate refund
of any such excess interest by a credit to and payment toward the unpaid balance
of the Loan (such credit to be considered to have been made at the time of the
payment of the excess interest) with any excess interest not so credited to be
immediately paid to the Company by the Bank.
Section 2.04. Payment of Note. The Company shall pay the Notes as
heretofore described with interest at the rate set forth in Section 2.02 as
follows:
(a) Loan "A". Interest only shall be payable monthly on the principal
balance due and owing from time to time. The principal balance shall be due and
payable upon demand and the Bank shall conduct an annual review on or before
June 30, 1991. The principal balance shall be paid in full for a period of at
least thirty (30) days during the first twelve months and for each twelve month
period thereafter during which the credit continues to be made available by the
Bank to the Company. In the event that the amount advanced by the Bank to the
Company from time to time, exceeds $750,000.00, the Company shall maintain a
borrowing formula wherein 70% of the current to 90 day account receivable shall
have a value equal to or greater than $750,000.00. In the event that the value
of the accounts receivable as heretofore determined, becomes less than the
amount advanced by the Bank to the Company in excess of $750,000.00, then in
such event, the Company shall immediately forthwith reduce the outstanding
balance of the line of credit to an amount equal to the value of the accounts
receivable according to the borrowing formula. The calculation of the accounts
receivable in accordance with the borrowing formula will be based on the last
month's report of receivables as provided for in Section 4.0l (ii).
(b) Loan "B". Interest only shall be payable monthly on the principal
balance due and owing from time to time. The principal balance shall be due and
payable upon demand and the Bank shall conduct an annual review on or before
June 30, 1991.
Section 2.05. Method of Prepayment. The Company may at any time prepay all
or any part of the principal amount of the Loans Outstanding without
premium or penalty.
Section 2.06. Set-off. The Company hereby grants to the Bank a lien on, and
a security interest in, the deposit balances, accounts, items, certificates of
Deposit and monies of the Company in the possession of or on deposit with the
Bank of any Bank Office to secure and as collateral for the payment and
performance of the obligations created by the Loans. The Bank, upon giving
written notice, shall immediately appropriate and set-off against and apply the
same to the Obligations when and as due and payable.
Section 2.07. Application of Payments. All payments made on the Note shall
be applied first to interest accrued to the date of payment and next to the
unpaid principal balance provided, however, in the event an Event of Default
occurs, payment shall be applied first to any costs or expenses, including
reasonable attorneys fees, that the Bank may incur in exercising its rights
under the Loan Documents, as the Bank may determine.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Bank that:
Section 3.0l. Organization, Corporate Powers, etc. The Company (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida, (ii) has all requisite power and authority, corporate
and otherwise to own its properties and assets and to carry on its business as
now conducted and proposed to be conducted, (iii) is duly qualified to do
business and is in good standing in every jurisdiction in which the character of
its properties or assets owned or the nature of their activities conducted makes
such qualification necessary including the State of Florida, and (iv) has the
corporate power and authority to execute and deliver, and to perform its
obligations under this Agreement, the Note, and the other Loan Documents.
Section 3.02. Authorization of Loan, etc. The execution, delivery and
performance of the Loan Documents by the Company, to the extent applicable, (a)
have been duly authorized by all requisite corporate action (no shareholder
action being required pursuant to applicable law) and (b) will not (i) violate
(A) any provision of law, any governmental rule or regulation, any order of any
court or other agency of government or the Articles of Incorporation or By-Laws
of the Company, to the extent applicable or (B) any provision of any indenture,
agreement or other instrument to which the Company, to the extent applicable, is
a party or by which it or any of its properties or assets are bound, (ii) be in
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any such indenture, agreement or other instrument,
or (iii) result in the creation or imposition of any lien, charge or encumbrance
of any nature whatsoever upon any of the properties or assets of the Company
other than as permitted by the terms hereof.
Section 3.03. Agreements.
(a) The Company is not a party to any agreement, indenture, lease or
instrument or subject to any charter or other corporate restriction or any
judgment, order, writ, injunction, decree, rule or regulation materially and
adversely affecting its business, properties, assets, operations or condition
(financial or otherwise). There are no unrealized losses with respect to any
such agreement, indenture, lease or instrument.
(b) The Company is not in default in the performance, observance or
fulfillment of any of the material obligations, covenants or conditions
contained in any material agreement or instrument to which it is a party.
(c) The Company enjoys peaceful and undisturbed possession in all material
respects under all leases as to which the Company is a lessee and all such
leases are valid and subsisting and in full force and effect.
Section 3.04. Tax Returns and Payments. All federal, state and local tax
returns and reports of the Company required to be filed have been filed, and all
taxes, assessments, fees and other governmental charges upon the Company, or
upon any of its properties, assets, incomes or franchises, which are due and
payable in accordance with such returns and reports, have been paid, other than
those presently (a) payable without penalty or interest, or (b) contested in
good faith and by appropriate and lawful proceedings prosecuted diligently. The
aggregate amount of the taxes, assessments, charges and levies so contested is
not material to the condition (financial or otherwise) and operations of the
Company. The charges, accruals, and reserves on the books of the Company in
respect of federal, state and local taxes for all fiscal periods to date are
adequate and the Company knows of no other unpaid assessment for additional
federal, state or local taxes for any such fiscal period or of any basis
therefor. The Company has and will establish all necessary reserves and make all
payments required of it to be set aside or made in regard to all F.I.C.A.,
withholding, sales or excise, and all other similar federal, state and local
taxes.
Section 3.05. Financial Conditions.
(a) All balance sheets, statements of profit and loss, and other financial
data that have been given to the Bank with respect to the Company:
(i) are complete and correct in all material respects;
(ii) accurately present the financial condition of the Company and the
results of their operation as of the dates and for the periods for which
the same have been furnished;
(iii) have been prepared in accordance with generally accepted
accounting principles consistently followed throughout the periods covered
thereby: and
(iv) disclose all known liabilities, direct or contingent, as of their
respective dates.
(b) There have been no adverse changes in the business, properties,
condition (financial or otherwise, of Company, or any other party obligated to
Bank under the Loan Documents) and there has been no change in the structure or
ownership of said parties. The financial statements submitted to Bank in
connection with the Loan were true and correct as the date of submission and
remain true and correct as of the date hereof.
(c) There are no judgments, decrees, actions, suits or proceedings,
including without limitation, bankruptcy proceedings, pending or threatened
against or affecting the Company, or the property, before any Court, Arbitrator
or Governmental Department or agency which may result in any materially adverse
change in the financial condition of the Company, or any other party obligated
to the Bank under the Loan Documents or which would materially and adversely
affect the collateral or this loan transaction.
Section 3.06. Commitment Letter. The Company further warrants and
represents that it has complied with each of the terms of the Bank's Commitment
and that there exists no condition or outstanding requirement of the commitment
letter which has not been fulfilled in its entirety as an integral part of this
loan.
ARTICLE FOUR
COVENANTS OF THE COMPANY
Section 4.0l. Affirmative Covenants. The Company covenants, for so long
as any of the principal amount of or interest on the Notes is outstanding and
unpaid or any duty or obligation of the Company hereunder or under any of the
other Obligations remains unpaid or unperformed, as follows:
(a) Accounting: Financial Statements; Etc. The Company will deliver to the
Bank copies of each of the following:
(i) The Company will submit year-end unqualified audited financial
statements prepared by a CPA acceptable to the Bank for the Company, within
ninety (90) days of the end of the Company's fiscal year unless extended in
writing by the Bank.
(ii) The Company shall submit to the Bank on or before the 15th of
each month, (except for the fiscal year end report which shall be provided
within twenty-five (25) days following the end of the fiscal year) the
prior month's balance sheet, income statement, report of accounts
receivable aging and accounts payable aging, contract status, proposal
status, backlog and orders secured, as well as other relevant information
concerning the business activity and financial condition of the Company. A
certificate will be furnished with each monthly report signed by the
President or the Executive Vice President of the Company certifying that
the foregoing information is true and correct and that all conditions of
this Loan Agreement are being complied with or if not, what the exceptions
are.
(iii) With reasonable promptness, such other data and information as
from time to time may be reasonably required by the Bank in regard to the
Company.
All financial statements shall be in form and substance as reasonably
requested by the Bank.
(b) Inspection. The Company will permit the Bank to visit and inspect any
of the properties and Places of Business of the Company, including its or their
respective books and records (and to make extracts therefrom), and to discuss
their respective affairs, finances and accounts with their respective officers,
all at such reasonable times and as often as may reasonably be requested
provided that the Bank shall not be permitted to inspect secured, restricted or
otherwise classified areas, without the express permission of the Company. The
Company shall keep all books and records in an unclassified or unrestricted area
of the Company's property, so that such books and records shall, at all times,
be available for inspection by the Bank as herein provided.
(c) Maintenance of Corporate Existence: Compliance With Laws. The Company
shall at all times preserve and maintain in full force and effect is corporate
existence, powers, rights, licenses, permits and franchises in the jurisdiction
of its incorporation; continue to conduct and operate its business substantially
as conducted and operated during the present and preceding fiscal year of the
Company; operate in full compliance with all applicable laws, statutes,
regulations, certificates of authority and orders in respect of the conduct of
its business; and qualify and remain qualified as a foreign corporation in each
jurisdiction in which such qualification is necessary or appropriate in view of
its business and operations.
(d) Notice of Default. The Company shall immediately notify the Bank in
writing upon the happening, occurrence or existence of any Event of Default, or
any event or condition which with the passage of time or giving of notice, or
both, would constitute an Event of Default, and shall provide the Bank with such
written notice, a detailed statement by a responsible officer of the Company of
all relevant facts and the action being taken or proposed to be taken by the
Company with respect thereto.
(e) Notice of Suit, Proceedings, Adverse Change. The Company shall promptly
give the Bank notice in writing (a) of all known threatened or actual actions or
suits (at law or in equity) and of all threatened or actual investigations or
proceedings by or before any court, arbitrator or any governmental department,
commission, board, bureau, agency or other instrumentality, state, federal or
foreign, affecting the Company, the rights or other properties of the Company,
(i) which involves potential liability of the Company in an amount in excess of
$500,000.00 or (ii) which the President or Executive Vice-President of the
Company believe in good faith is likely to materially and adversely affect the
financial condition of the Company or to impair the right or ability of the
Company to carry on its businesses as now conducted or to pay the Obligations or
perform the duties under the Loan Documents and which the Company has knowledge;
(b) or any material adverse change in the condition (financial or otherwise) of
the Company; and (c) of any seizure or levy upon any part of the properties of
the Company under any process or by a receiver.
(f) Checking Accounts. The Company shall maintain all depository accounts
with the Bank or at a Bank Office, or any other banking affiliate of Sun Bank,
N.A., except for those non-primary accounts maintained outside of the State of
Florida.
(g) Insurance. The Company shall procure and maintain and comply with such
insurance and policies of insurance (including without limitation public
liability and product and manufacturer's liability insurance with minimum
coverage of $1,000,000.00) as may be required by law and such other insurance as
is customarily maintained by companies similarly situated, or as the Bank may
from time to time reasonably request and which are customarily required for
commercial enterprises of the kind and nature similar to that of the Company. In
particular, the following insurance policies will be obtained and maintained in
full force and effect throughout the term of this Agreement.
(i) As a requirement of the loan commitment and pursuant to the terms and
conditions of this Loan Agreement, the Company shall maintain in full force and
effect, during the term of this Loan, life insurance policies on the lives of
the following persons in the amounts as indicated: indicated:
Xxxx X. Xxxxx $500,000.00
Xxxxx X. Xxxxxxxx $500,000.00
The Company shall be designated as the irrevocable beneficiary thereof as
long as there remains an outstanding balance on the loans or an obligation on
the part of the Bank to fund the loans.
(ii) Appropriate hazard insurance and flood insurance, if applicable,
covering all real property, inventory, and equipment of the Company in the face
amount of not less than $1,000,000.00. The Company shall furnish to the Bank
certificates reflecting said insurance. The Bank agrees that the Company may
negotiate the settlement of any claims for damages less than $100,000.00,
provided that the proceeds realized from the settlement of such claims are used
to replace or refurbish equipment, inventory or property damaged and which is
the subject matter of the claim of loss. In the event that the claim for damages
exceeds $100,000.00, the Bank, in its sole discretion, may elect to apply the
insurance proceeds towards the reduction of the principal and interest
obligations of the loans.
(iii) The Company shall designate as additional loss payee the Bank as
follows: Sun Bank, National Association, its successors and assigns, Xxxx Xxxxxx
Xxx 0000, Xxxxxxxxx, Xxxxxxx 00000-0000 Attention: Commercial Loans.
(h) Debts, Taxes and Liabilities. The Company shall pay and discharge (i)
all of its indebtedness and obligations in accordance with their terms and
before they shall become in default, (ii) all taxes, assessments and
governmental charges or levies imposed upon it or upon its income and profits or
against its properties, prior to the date on which penalties attach thereto, and
(iii) all lawful claims which, if unpaid, might become a lien or charge upon any
of its properties; provided, however, that the Company shall not be required to
pay any such indebtedness, obligation, tax, assessment, charge, levy or claim
which is being contested in good faith by appropriate and lawful proceedings
diligently pursued and for which adequate reserves have been set aside on its
books. The Company shall also set aside and/or pay as and when due all monies
required to be set aside and/or paid by any federal, state or local statute or
agency in regard to F.I.C.A., withholding, sales or excise or other similar
taxes.
(i) Notification of Change of Name or Business Location. The Company shall
notify the Bank of each change in the name of the Company and of each change of
the location of the Principal Place of Business and any Places of Business
provided, however, the Principal Place of Business may not be kept out of or
removed from Brevard County, Florida without the prior written consent of the
Bank.
(j) Minimum Financial Criteria. The Company shall maintain the following
minimum financial criteria:
(i) Current Ratio. For the Company, it shall maintain a minimum current
ratio of 1.50:1. Current ratio shall be defined as Current Assets divided by
Current Liabilities.
(ii) Minimum Working Capital. The minimum working capital shall
$700,000.00. Working Capital shall be defined as Current Assets
minus Current Liabilities.
(iii) Minimum Tangible Net Worth. Minimum Tangible Net Worth shall be
$1,250,000.00.
(iv) Minimum Interest Coverage Ratio. At all times that the average loan
outstandings exceed $750,000.00, the minimum interest coverage ratio shall be
not less than 1.50:1. In the event the outstandings are less than $750,000.00,
the minimum interest coverage ratio shall be not less than 2.00:1. This ratio
shall be monitored on a year to date fiscal quarter basis.
(k) Maximum Financial Criteria. The Company shall maintain the following
maximum financial criteria:
(i) Maximum Debt to Net Worth Ratio. At all such times as combined
principal balance outstanding on Loan "A" and Loan "B" exceeds $750,000.00, the
maximum Debt to Net Worth Ratio shall be 1.70:1. In the event that the combined
outstanding principal balance of Loan "A" and Loan "B" is less than $750,000.00,
then the maximum Debt to Net Worth Ratio shall be maintained at 1.45:1.
Section 4.02. Negative Covenants. The Company covenants, for so long as any
of the principal amount of or interest on the Notes is outstanding and unpaid or
any Obligations remain unpaid or unperformed, as follows:
(a) Sale of Assets. The Company will not sell, lease, assign, transfer or
otherwise pledge or encumber or dispose of any assets, other than as worn out,
obsolete, traded in on new equipment, or in the normal course of business
without the express written consent of the Bank.
(b) Change in Ownership of Principal Stockholders. The Company shall make
no change in the position of Xxxx Xxxxx as President and Xxxxx X. Xxxxxxxx as
Executive Vice-President and officers of the Company or in the ownership of
stock by the foregoing officers without the prior written consent of the Bank.
In the event that the aforesaid President or Executive Vice-President resign
from the Company without the prior written consent of the Bank, such resignation
shall constitute a default under the terms and conditions of the Loan Documents.
(c) Merger or Consolidation. The Company will not consolidate with or merge
into any other corporation, or permit another corporation to merge into it, or
acquire in a transaction analogous in purpose or effect to a merger or
consolidation all or substantially all the properties or assets of any other
entity without the Bank's prior written consent which shall not be unreasonably
withheld.
(d) Additional Indebtedness. The Company shall not incur any new
obligations except for trade accounts payable in the ordinary course of
business, capital leases in excess of $20,000.00 (cumulative on an annual
basis), and taxes without the prior written consent of the Bank. In the event
stockholder loans to the Company are made, such indebtedness shall be
subordinated, in writing, to the Company's indebtedness to the Bank.
(e) Hypothecation. The Company will not, without the Bank's prior written
consent, voluntarily or involuntarily hypothecate, mortgage, pledge, or subject
to a lien, security interest or other encumbrance of any nature whatsoever any
of its real or personal property now owned or hereafter acquired.
(f) Other Agreements. The Company will not enter into any arrangements,
contractual or otherwise, which would materially and adversely affect its or
their duties or the rights of the Bank under the Loan Documents or which is
inconsistent with or limits or abrogates the Loan Documents.
(g) Fiscal Year. The Company will not change its fiscal year from a year
ending March 31 without reasonable notice to the Bank.
(h) Loans to Stockholders. The Company shall make no loans to the principal
stockholders without the prior written consent of the Bank.
ARTICLE FIVE
CONDITIONS OF LENDING
The obligations of the Bank to lend hereunder and advance any monies under
the Note and to make any Advance under Section 2.03 from time to time are
subject to the following conditions precedent:
Section 5.01. Representations and Warranties. The representations and
warranties set forth in the Loan Documents are true and correct on and as of the
date hereof, and on the date of each Advance hereunder.
Section 5.02. No Default. On the date hereof and on the date of each
Advance, the Company shall be in compliance with all the terms and provisions
set forth in the Loan Documents on its or their part to be observed or
performed, and no Event of Default nor any event that, upon notice or lapse of
time or both would constitute such an Event of Default, shall have occurred and
be continuing at such time.
Section 5.03. Officer's Certificate. Substantially simultaneously with the
execution hereof, and with the submission of each financial statement hereunder
and on such other dates as the Bank may request, the Company shall deliver to
the Bank a certificate, dated as of the date given, and signed by a responsible
officer of the Company, confirming compliance with all of the conditions of this
Agreement by the Company.
Section 5.04. Loan Documents. The Company shall have delivered or caused to
be delivered to the Bank all the Loan Documents, in form and substance
satisfactory to the Bank, as the Bank may request and all of the Loan Documents
are in full force and effect.
Section 5.05. Supporting Documents. On or prior to the date hereof, the
Bank shall have received the following supporting documents, all of which shall
be satisfactory in form and substance to the Bank:
(a) A certificate or certificates, dated as of the date hereof, of (i) the
Secretary or any Assistant Secretary of the Company certifying (A) that attached
thereto is a true and correct copy of certain resolutions adopted by the Board
of Directors of the Company authorizing the execution, delivery and performance
of the Loan Documents and the performance of the Company's obligations and the
borrowings thereunder, which resolutions have not been altered or amended in any
respect, and remain in full force and effect at all times since their adoption:
(B) that attached thereto is a true and correct copy of the Certificate of
Incorporation of the Company, that such Certificate of Incorporation has not
been altered or amended, and no other charter documents have been filed, since
the date of the filing of the last amendment thereto or other charter document
as indicated on the certificate of the Secretary of State of the State of
Florida attached thereto; and (C) the incumbency and signatures of the officers
of the Company signing the Loan Documents and any report, certificate, letter or
other instrument or document furnished by the Company in connection therewith,
and (ii) another authorized officer of the Company certifying the incumbency and
signature of the Secretary or Assistant Secretary of the Company;
(b) A certificate of the Florida Secretary of State dated as of a recent
date, as to the good standing of the Company;
(c) A copy of the corporate By-Laws certified by the Secretary as a true
and correct copy;
(d) Such additional supporting or similar documents as the Bank may
reasonably request in regard to the Company.
ARTICLE SIX
COLLATERAL
Section 6.01. Security Agreement. The Company has executed a Security
Agreement and UCC-1 Financing Statements for the purpose of pledging all of its
accounts, contract rights, inventory and equipment to secure the repayment of
the indebtedness represented by Notes "A" and "B". The company agrees to execute
any and all further documents necessary to properly perfect the Bank's security
interest therein.
Section 6.02. Collateral Assignment. The company has further executed a
collateral assignment of contract rights and proceeds arising out of the
contract between the Company and the Egyptian Government. A Summary of which is
attached hereto as Exhibit "C".
Section 6.03. Cross Collateral. The collateral is also pledged as security
for all other liabilities (primary, secondary, direct, contingent, sole, joint
or several), due to become due or which may hereafter be contracted or acquired,
of the Company, to the Bank. Further, any other collateral, whether real or
personal, held by the Bank on any liability due or to become due, or which may
hereafter be contracted, or acquired with or from the Company shall also
constitute additional collateral to further secure the Note.
ARTICLE SEVEN
EVENTS OF DEFAULT
Section 7.01. Events of Default. The following each and all are Events of
Default hereunder:
(a) Monetary Default. If the Company shall default in any payment of the
principal or interest on the Loan when and as the same shall become due and
payable, whether at maturity, by acceleration at the discretion of the Bank or
otherwise; or
(b) Non-Monetary Default. If the Company shall default in the performance
of or compliance with any term or covenant contained in the Loan Documents
(other than a term or covenant a default in the performance of which or
non-compliance with which is elsewhere specifically dealt with) which default or
non-compliance shall continue and not be cured within thirty (30) days of
written notice thereof to the Company by the Bank; or
(c) False Misrepresentation. If any representation or warranty made in
writing by or on behalf of the Company or in any other Loan Document shall prove
to have been knowingly false or incorrect in any material respect on the date as
of which made or reaffirmed; or
(d) Bankruptcy. If the Company shall make an assignment for the benefit of
creditors, file a petition in bankruptcy, petition or apply to any tribunal for
the appointment of a custodial receiver or trustee for any of them or a
substantial part of their assets, or shall commence any proceeding under any
bankruptcy reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or hereafter in
effect, or if there shall have been filed any such petition or application, or
any such proceeding shall have been commenced against any of them, in which an
order for relief is entered or which remains undismissed for a period of thirty
days (30) days or more; or
(e) Litigation against the Company. Any suit shall be filed which could
reasonably be expected to substantially impair the ability of the Company to
perform the obligations under and by virtue of the loan documents.
Section 7.02. Failure to disprove default. Should Bank reasonably suspect
the occurrence of one or more of the aforesaid Events of Default and the
Company, upon request of the Bank, shall fail to provide evidence reasonably
satisfactory to Bank that such Event or Events of Default have not, in fact,
occurred, then such Event shall be deemed to have occurred.
Section 7.03. Cross Defaults. A default under any Loan Document, including
a default under this Agreement, shall be and constitute a default under all
outstanding loans to the Company by the Bank, and further, a default under any
of the outstanding loans to the Company by the Bank shall be and constitute a
default under this Agreement and each and all of the Loan Documents, subject
however to the thirty (30) days notice and right to cure non-compliance with
respect to non-monetary defaults as delineated in Section 7.01(b), above.
ARTICLE EIGHT
RIGHTS UPON DEFAULT
Upon the occurrence of any Event of Default, the Bank shall have and may
exercise any or all of the rights set forth herein provided, however, the Bank
shall be under no duty or obligation to do so:
Section 8.01. Acceleration. To declare the indebtedness evidenced by the
Note and all other Obligations to be forthwith due and payable, whereupon the
Note and all other Obligations shall become forthwith due and payable, both as
to principal and interest, without presentment, demand, protest or any other
notice or grace period of any kind, all of which are hereby expressly waived,
anything contained herein or in the Notes or in such other Obligations to the
contrary notwithstanding.
Section 8.02. Right of Setoff. To exercise its right of setoff as permitted
under Section 2.06.
Section 8.03. Application of Proceeds. Any and all proceeds resulting from
the exercise of any and all of the foregoing remedies shall be applied (i) first
to the cost and expenses, including reasonable attorneys fees incurred by the
Bank in connection with the exercise of its remedies; (ii) second, to the
expenses of curing the default that has occurred, in the event that the Bank
elects, in its sole discretion (and without obligation to do so) to cure the
default that has occurred; (iii) third, to the satisfaction of the obligations
of the Company to the Bank, including without limitations, the payment of the
principal of, and interest on the indebtedness evidenced by the Notes, in any
order selected by Bank; and (iv) fourth, the remainder, if any, to the Company
or any other person lawfully entitled thereto.
ARTICLE NINE
MISCELLANEOUS
Section 9.01. No Waiver, Cumulative Remedies. No failure or delay on the
part of the Bank in exercising any right, power or remedy hereunder, or under
the Note or the other Loan Documents shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy hereunder or thereunder. The remedies herein and therein provided are
cumulative and not exclusive of any remedies provided by law or in equity.
Section 9.02. Amendments, Etc. No amendment, modification, termination or
waiver of any provision of this Agreement, the Note or the other Loan Documents,
nor consent to any departure by the company therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Bank, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
Section 9.03. Addresses for Notices, Etc. All notices, requests, demands
and other communications provided for hereunder shall be in writing (including
telex or telegraphic communications) and shall be deemed to have been given (i)
in the case of delivery, when addressed to the other party and delivered to the
address set forth below, (ii) in the case of mailing, three days after said
notice has been deposited, postage prepaid, in the United States Mails by
certified or registered mail, return receipt requested, and (iii) in all other
cases when received by the party. The address to which matters may be sent or
delivered to each party are as follows:
If to the Company: Computer Science Innovations, Inc
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxx Xxx, XX 00000
Attn: Xxxx Xxxxx
If the Bank: Sun Bank, National Association
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, Xxxxxxx 00000
Attn: Commercial Loan
Department Manager
With a Copy to: Xxxxx Xxxxxxxx, Esq.
Reinman, Harrell, Xxxxxx, et al.
0000 X. Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Each party may change the address to which matters are to be sent or
delivered as set forth above by giving written notice of such change in the
manner set forth above.
Section 9.04. Applicable Law. This Agreement, and each of the Loan
Documents and transactions contemplated herein (unless specifically stipulated
to the contrary in such document) shall be governed by and interpreted in
accordance with the laws of the State of Florida.
Section 9.05. Survival of Representations and Warranties. All
representations, warranties, covenants and agreements contained herein or made
in writing by the Company in connection herewith shall survive the execution and
delivery of this Agreement, the Note and the other Loan Documents and be true
and correct during the term of the Loan.
Section 9.06. Time of the Essence. Time is of the essence of this
Agreement, the Note and the other Loan Documents.
Section 9.07. Headings. The headings in this Agreement are intended to be
for convenience of reference only, and shall not define or limit the scope,
extent or intent or otherwise affect the meaning of any portion hereof.
Section 9.08. Severability. In case any one or more of the provisions
contained in this Agreement, the Note or the other Loan Documents shall for any
reason be held to be invalid, illegal or unenforceable in any respect, the same
shall not affect any other provision of this Agreement, the Note or the other
Loan Documents, but this Agreement, the Note and the other Loan Documents shall
be construed as if such invalid or illegal or unenforceable provision had never
been contained therein.
Section 9.09. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 9.10. Conflict. In the event any conflict arises between the terms
of this Agreement and the terms of any other Loan Document including the Note,
the Bank shall have the option of selecting which conditions shall govern the
loan relationship evidenced by this Agreement and, if the Bank does not so
indicate, the terms of this Agreement shall govern in all instances of such
conflict.
Section 9.11. Term. The term of this Agreement shall be for such period of
time until the Loan and Note have been repaid in full, the Company has no
further right to request any Advance on the Loan and all Obligations have been
paid to the Bank in full.
Section 9.12. No Third Party Beneficiary. This Agreement is solely between
the parties hereto and no person not a party to this Agreement shall have any
rights or privileges hereunder either as a third party beneficiary or otherwise.
Section 9.13. No Partnership or Joint Venture. Nothing herein or the acts
of the parties hereto shall be construed to create a partnership or joint
venture between the Company and the Bank, nor to create any obligation on the
part of the Bank as to the Company.
Section 9.14. Successors and Assigns Included in Partner. Whenever in this
Agreement one of the parties hereto is named or referred to, the legal
representative, successors, successors in title and assigns of such parties
shall be included, and all covenants and agreements contained in this Agreement
by and on behalf of the company or by and on behalf of the Bank shall bind and
inure to the benefit of their respective legal representatives, successors,
successors in title, and assigns, whether so expressed or not.
Section 9.15. Assignment. The Notes, this Agreement and the other Loan
Documents may be endorsed, assigned and/or transferred in whole or in part by
the Bank and any such holder and assignee of same shall succeed to and be
possessed of the rights of the Bank under all of the same to the extent
transferred and assigned. Bank may grant participation in all or a portion of
its interest in the loan. Company shall not assign any of their rights nor
delegate any of their duties hereunder or under any of the other Loan Documents
without the prior express written consent of the Bank.
Section 9.16. Costs and Attorney Fees. If an Event of Default occurs under
Agreement or a default occurs under other Loan Document, then, in that event,
the Company agrees to promptly pay to the Bank, upon demand therefore, all
costs, expenses and attorneys fees incurred or paid by the Bank in enforcing its
rights under this Agreement or any Loan Document. As used herein, costs,
expenses and attorneys fees include costs, expenses and attorney's fees incurred
or paid by the Bank in regard to any appellate proceedings.
Section 9.17. Entire Assignment. Except as otherwise expressly provided
herein, this Agreement and the other Loan Documents embody the entire agreement
and understanding between the parties hereto and supersede all prior agreements
and understandings relating to the subject matter hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed, sealed and delivered, as applicable, by their duly authorized
officers on the day and year first above written.
Signed, sealed and delivered in the SUN BANK, NATIONAL ASSOCIATION
presence of:
___________________________________ By: ___________________________________
____________________________________ Attest:________________________________
(As to Bank)
COMPUTER SCIENCE INNOVATIONS, INC.,
a Florida Corporation
_____________________________________ By: /s/ Xxxx Xxxxx
-----------------------------------
Xxxx X. Xxxxx, President
_____________________________________ By: /s/ Xxxxx Xxxxxxxx
(As to Company) -----------------------------------
Xxxxx X. Xxxxxxxx
Executive Vice President
Sun Bank [logo]
PROMISSORY NOTE
$1,000,000.00 January ___1991
The undersigned (whether one or more hereinafter called "Maker"),
jointly and severally, promise(s) to pay to the order of Sun Bank, National
Association (herein called "Bank") at its offices located at Melbourne Florida,
ONE MILLION and 00/100 DOLLARS ($1,000,000.00), together with interest from the
date hereof at the rate hereinafter provided, and applicable fees in the
following manner:
REPAYMENT SCHEDULE:
|---| Single Payment Principal Due in Full On:
Interest Payable:
|---| Installment Payment (Including interest): In __________ ______________
(No.) (Period)
Installments of $_________ commencing on __________,
19__, and on the same day of each successive
___________ thereafter, together with FINAL
PAYMENT of $___________, due and payable on
______________, 19__.
|---| Installment Payment (plus interest): ___________ ____________________
(No.) (Period)
Principal Installments of $___________, plus
interest, commencing on ___________, 19__, and on
the same day of each successive ___________
thereafter, together with a FINAL PAYMENT of
$___________, plus accrued interest due and payable
on ______________, 19__.
|---| Multiple Payment: Principal and interest are payable as follows:
_____________________________________________
_____________________________________________
| X | ON DEMAND Principal payable ON DEMAND with interest payable
monthly commencing on February 1, 1991 and each
month thereafter.
------
THE INTEREST RATE IS AS FOLLOWS: |---| If checked here, the interest rate
provided herein shall be computed on the basis of a 360 day year and shall be
calculated for the actual number of days elapsed.
VARIABLE INTEREST RATE:
|---| Not Applicable
| X | Applicable, provided however that the interest rate charged
hereunder shall never exceed the maximum rate allowed, from time to time, by
law. If applicable, the interest rate stated herein shall, from time to time,
automatically increase or decrease so that at all times it shall be equivalent
to (check appropriate box and complete):
| X | .75% over the annual interest rate announced by Sun Banks, Inc., from
from time to time, as the prime rate (which interest rate is only a
bench xxxx, is purely discretionary and is not necessarily the best or
lowest rate charged borrowing customers of any subsidiary bank of Sun
Banks, Inc.). Any such change in prime rate will increase or decrease
your periodic interest payments. Any change in prime rate shall be
effective at the beginning of the business day on which such change is
announced; or,
|---| -----% over the ---------------------------------------------------------
--------------------------------------------------------------------------------
FIXED RATE |---| Applicable at ___% per annum, simple interest.
LATE CHARGE FEE | X | Not Applicable.
SERVICE FEE | X | If checked here, if a payment is late, you will be
charged 5% of the payment. A service fee of the lesser of
$50.00 or 2 percent of the principal amount of this loan,
which will not be refunded in the event of prepayment.
In the event any installment of principal or interest or any part
thereof is not paid when it becomes due, or in the event of any default
thereunder, the principal sum remaining unpaid hereunder, together with all
accrued and past due interest thereon, shall immediately and without notice
become due and payable at the election of the holder at any time thereafter.
Notwithstanding any rate of interest provided herein, the interest rate
on any payment or payments of principal or interest, or any part thereof, which
is not made when due shall, thereafter, be at the maximum rate allowed, from
time to time, by law. Minimum interest of $10.00 on any single payment loan or
$15.00 on any installment loan will be charged on loans not exceeding $50,000.
This note is | x | SECURED |---| UNSECURED (Notwithstanding the fact
that this note is marked 'unsecured', Maker understands and agrees that any
other security interest the Bank now holds or may hereafter acquire from the
Maker may secure this note).
As security for the payment of this note Maker has pledged or deposited
with Bank and hereby grants to Bank a security interest in the following
property: all accounts, contract rights, inventory and equipment of Borrower
(including all cash, stock and other dividends and all rights to subscribe for
securities incident to, declared, or granted in connection with such property
and including any returned or unearned premiums from any insurance financed
hereunder), which property, together with all additions and substitutions
hereafter pledged or deposited with Bank is called the Collateral. The
Collateral is also pledged as security for all other liabilities (primary,
secondary, direct, contingent, sole, joint, or several), due or to become due or
which may be hereafter contracted or acquired, of each Maker (including each
Maker and any other person) to Bank. The surrender of this note, upon payment or
otherwise, shall not affect the right of Bank to retain the Collateral for such
other liabilities.
Maker understands and agrees that the additional agreements and
provisions on the reverse side hereof, hereby incorporated by reference,
constitute agreements of the Maker and a part of this note. Maker acknowledges
receipt of a completed copy of this note.
NOTICE TO COSIGNER: You are being asked to guarantee this debt. Think
carefully before you do. If the Borrower doesn't pay the debt, you will have to.
Be sure you can afford to pay if you have to, and that you want to accept this
responsibility.
You may have to pay up to the full amount of the debt if the borrower
does not pay. You may also have to pay late fees or collection costs, which
increase this amount.
The Bank can collect this debt from you without first trying to collect
from the borrower, The Bank can use the same collection methods against you that
can be used against the borrower, such as suing you, garnishing your wages, etc.
If this debt is ever in default, that fact may become a part of your credit
record.
This notice is not the contract that makes you liable for the debt.
COMPUTER SCIENCE INNOVATIONS, INC., a Florida Corporation.
Address: 0000 Xxxxxxxxx Xx., X.X. By: /s/ Xxxx Xxxxx (Seal) 8 January 1991
Xxxx Xxx, XX 00000 ------------------------ --------------
Xxxx X. Xxxxx, President Date
By: /s/ Xxxxx X. Xxxxxxxx (Seal)8 January 1991
------------------------ --------------
Xxxxx X. Xxxxxxxx, Date
Exec. Vice-President
================================================================================
Sun Bank [logo]
PROMISSORY NOTE
$1,000,000.00 January 8, 1991
------------- ---------------
The undersigned (whether one or more hereinafter called "Maker"),
jointly and severally, promise(s) to pay to the order of Sun Bank, National
Association (herein called "Bank") at its offices located at Melbourne Florida,
ONE MILLION and 00/100 DOLLARS ($1,000,000.00), together with interest from the
date hereof at the rate hereinafter provided, and applicable fees in the
following manner:
REPAYMENT SCHEDULE:
|_| Single Payment Principal Due in Full On: -------------------------
Interest Payable: ---------------------------------
|_| Installment Payment (Including interest): In _________ ______________
(No.) (Period)
Installments of $___________ commencing on
___________, 19__, and on the same day of each
successive ___________ thereafter, together with
FINAL PAYMENT of $___________, due and payable on
______________, 19__.
|_| Installment Payment (plus interest): ___________ ___________________
(No.) (Period)
Principal installments of $___________, plus
interest, commencing on ___________, 19__, and on
the same day of each successive ___________
thereafter, together with a FINAL PAYMENT of
$___________, plus accrued interest due and payable
on ______________, 19__.
|_| Multiple Payment Principal and interest are payable as follows:
_____________________________________________
_____________________________________________
|X| ON DEMAND Principal payable ON DEMAND with interest payable
monthly commencing on February 1, 1991 and each
month thereafter.
THE INTEREST RATE IS AS FOLLOWS: |_| If checked here, the interest
rate provided herein shall be computed on the basis of a 360 day year and shall
be calculated for the actual number of days elapsed. VARIABLE INTEREST RATE:
|_| Not Applicable |_| Applicable, provided however that the interest
rate charged hereunder shall never exceed the maximum rate allowed, from time to
time, by law.
|_|.75% over the annual interest rate announced by Sun Banks, Inc., from time to
time, as the prime rate (which interest rate is only a bench xxxx, is purely
discretionary and is not necessarily the best or lowest rate charged borrowing
customers of any subsidiary bank of Sun Banks, Inc.). Any such change in prime
rate will increase or decrease your periodic interest payments. Any change in
prime rate shall be effective at the beginning of the business day on which such
change is announced; or,
|_| _____% over the
___________________________________________________________
---------------------------------------------------------------------------
FIXED RATE |_| Applicable at _% per annum, simple interest. Not Applicable. LATE
CHARGE FEE |_| If checked here, if a payment is late, you will be charged 5%
SERVICE FEE of the payment.
|_| A service fee of the lesser of $50.00 or 2 percent of the principal amount
of this loan, which will not be refunded in the event of prepayment.
In the event any installment of principal or interest or any part thereof
is not paid when it becomes due, or in the event of any default thereunder, the
principal sum remaining unpaid hereunder, together with all accrued and past due
interest thereon, shall immediately and without notice become due and payable at
the election of the holder at any time thereafter.
Notwithstanding any rate of interest provided herein, the interest rate on
any payment or payments of principal or interest, or any part thereof, which is
not made when due shall, thereafter, be at the maximum rate allowed, from time
to time, by law. Minimum interest of $10.00 on any single payment loan or $15.00
on any installment loan will be charged on loans not exceeding $50,000.
This note is |X| SECURED |_| UNSECURED (Notwithstanding the fact that this
note is marked 'unsecured', Maker understands and agrees that any other security
interest the Bank now holds or may hereafter acquire from the Maker may secure
this note).
As security for the payment of this note Maker has pledged or deposited
with Bank and hereby grants to Bank a security interest in the following
property: all accounts, inventory and equipment of Borrower (including all cash,
stock and other dividends and all rights to subscribe for securities incident
to, declared, or granted in connection with such property and including any
returned or unearned premiums from any insurance financed hereunder), which
property, together with all additions and substitutions hereafter pledged or
deposited with Bank is called the Collateral. The Collateral is also pledged as
security for all other liabilities (primary, secondary, direct, contingent,
sole, joint, or several), due or to become due or which may be hereafter
contracted or acquired, of each Maker (including each Maker and any other
person) to Bank. The surrender of this note, upon payment or otherwise, shall
not affect the right of Bank to retain the Collateral for such other
liabilities. Maker understands and agrees that the additional agreements and
provisions on the reverse side hereof, hereby incorporated by reference,
constitute agreements of the Maker and a part of this note. Maker acknowledges
receipt of a completed copy of this note.
--------------------------------------------------------------------------------
Notice to Cosigner: You are being asked to guarantee this debt. Think carefully
before you do. If the Borrower doesn't pay the debt, you will have to. Be sure
you can afford to pay if you have to, and that you want to accept
responsibility.
You may have to pay up to the full amount of the debt if the borrower does
not pay. You may also have to pay late fees or collection costs, which increase
this amount.
The Bank can collect this debt from you without first trying to collect
from the borrower, The Bank can use the same collection methods against you that
can be used against the borrower, such as suing you, garnishing your wages, etc.
If this debt is ever in default, that fact may become a part of your credit
record.
This notice is not the contract that makes you liable for the debt.
-------------------------------------------------------------------------------
COMPUTER SCIENCE INNOVATIONS, INC., a Florida Corporation. Address: 0000
Xxxxxxxxx Xx., X.X. By: /s/ Xxxx Xxxxx (Seal) 8 January 1991 Xxxx Xxxxx, XX
00000 ------------------ -------------- Xxxx X. Xxxxx, President Date
By: /s/ Xxxxx X. Xxxxxxxx (Seal) 8 January 1991
Xxxxx X. Xxxxxxxx, Exec. Vice-President Date
======================== ============================ =========================
If the variable interest rate is not applicable and if this note is
payable on demand, Bank reserves, and is hereby granted the right, to adjust the
interest rate from time to time by furnishing Maker with written notice of such
adjusted rate, provided, however, that no such adjusted rate shall exceed the
maximum rate allowed, from time to time, by law.
Additions to, reductions or exchanges of, or substitutions for the
Collateral, payments on account of this note or increases of the same, or other
loans made partially or wholly upon the Collateral, may from time to time, be
made without affecting the provisions of this note.
If Bank deems itself insecure, or upon the happening of any of the
following events, each of which shall constitute a default hereunder, all
liabilities of each Maker to Bank shall thereupon or thereafter, at the option
of the Bank, without notice or demand, become due and payable: (a) failure of
any Obligor (which term shall mean and include each Maker, endorser, surety and
guarantor of this note) to perform any agreement hereunder, to pay interest
hereon when due or requested or demanded or to pay any other liability
whatsoever to Bank when due; (b) the death of any Obligor; (c) the filing of any
petition under the Bankruptcy Code or any similar federal or state statute, by
or against any Obligor; (d) an application for the appointment of a receiver or
the making of a general assignment for the benefit of creditors by, or the
insolvency of any Obligor; (e) the entry of a judgment against any Obligor; (f)
the issuing of any writ of attachment or writ of garnishment, or the filing of
any lien, against the property of any Obligor; (g) the taking of possession of
any substantial part of the property of any Obligor at the instance of any
governmental authority; (h) the dissolution, merger, consolidation, or
reorganization of any Obligor; (i) the assignment by any Maker of any equity in
any of the Collateral without the written consent of Bank.
Bank is hereby given a lien upon and a security interest in all
property of each Maker now or at any time hereafter in the possession of Bank in
any capacity whatsoever, including but not limited to any balance or share of
any deposit, trust, or agent account as security for the payment of this note,
and a similar lien upon and security interest in all such property of each Maker
as security for the payment of all other liabilities of each Maker to Bank
(including liabilities of each Maker and any other person); and Bank shall have
the same rights as to such property as it has with respect to the Collateral.
If Bank deems itself insecure or upon the occurrence of any default
hereunder Bank shall have the remedies of a secured party under the Uniform
Commercial Code and, without limiting the generality of the foregoing, Bank
shall have the right, immediately and without further action by it, to set off
against this note all money owed by Bank in any capacity to each or any Obligor,
whether or not due, and also to set off against all other liabilities of each
Maker to Bank all money owed by Bank in any capacity to each or any Maker; and
Bank shall be deemed to have exercised such right of set-off and to have made a
charge against any such money immediately upon the occurrence of such default
even though such a charge is made or entered on the books of Bank subsequent
thereto. Unless the Collateral is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market, the Bank will
give Maker reasonable notice of the time and place of any public sale thereof or
of the time after which any private sale or any other intended disposition
thereof is to be made. The requirement of reasonable notice shall be met if such
notice is mailed, postage prepaid, to any Maker at the address given below or at
any other address shown on the records of the Bank, at least five days before
the time of the sale or disposition. Upon disposition of any Collateral after
the occurrence of any default hereunder, Maker shall be and remain liable for
any deficiency; and Bank shall account to Maker for any surplus, but Bank shall
have the right to apply all or any part of such surplus (or to hold the same as
a reserve against) any and all other liability of each or any Maker to bank. The
Obligors, jointly and severally, promise and agree to pay all costs and expenses
of collection and reasonable attorneys' fee, including costs, expenses and
reasonable attorneys' fees on appeal, if collected by legal proceedings or
through an attorney at law. Maker hereby waives any right to a trial by jury in
any civil action arising out of, or based upon, this note or the Collateral.
Bank shall exercise reasonable care in the custody and preservation of
the Collateral to the extent required by applicable statute and shall be deemed
to have exercised reasonable care if it takes such action for that purpose as
Maker shall reasonably request in writing, but no omission to do any act not
requested by Maker shall be deemed a failure to exercise reasonable care, and no
omission to comply with any request of Maker shall of itself be deemed a failure
to exercise reasonable care. Bank shall not be bound to take any steps necessary
to preserve any rights in the Collateral against prior parties and Maker shall
take all necessary steps for such purposes. Bank or its nominee need not collect
interest on or principal of any Collateral or give any notice with respect to
it.
If the Collateral shall at any time become unsatisfactory to Bank,
Maker shall within one day after demand pledge and deposit with Bank as part of
the Collateral additional property which is satisfactory to Bank.
Bank shall have the right, which may be exercised at any time whether
or not this note is due, to notify the Obligors on any collateral to make
payment to Bank on any amounts due or to become due thereon. In the event of any
default hereunder, Bank shall thereafter have, but shall not be limited to, the
following rights: (i) to pledge or transfer this note and the Collateral and
Bank shall thereupon be relieved of all duties and responsibilities hereunder
and relieved from any and all liability with respect to any Collateral so
pledged or transferred, and any pledgee or transferee shall for all purposes
stand in the place of Bank hereunder and have all the rights of Bank hereunder;
(ii) to transfer the whole or any part of the Collateral into the name of itself
or its nominee; (iii) to vote the Collateral; (iv) to demand, xxx for, collect,
or make any compromise or settlement it deems desirable with reference to the
Collateral; and (v) to take control of any proceeds of Collateral.
No delay or omission on the part of Bank in exercising any right
hereunder shall operate as a waiver of such right or of any other right under
this note. Presentment, demand, protest, notice of dishonor, and extension
of time without notice are hereby waived by each and every Obligor. Any notice
to Maker shall be sufficiently served for all purposes if placed in the mail,
postage prepaid, addressed to or left upon the premises at, the address shown
below or any other address shown on the Bank's records.
--------------------------------------------------------------------------------
GUARANTY
In addition to the liability as endorsers, which the undersigned hereby
assume, for value received and intending to be legally bound, the undersigned
(and if more than one, each of them jointly and severally) (a) hereby become
surety to the payee of the within note, its successors, endorsees and assigns,
for the payment of the within note, and hereby unconditionally guarantee the
payment of the within note and all extensions or renewals thereof and all sums
payable under or by virtue thereof including, without limitation, all amounts of
principal and interest and all expenses (including attorney's fees) incurred in
the collection thereof, the enforcement of rights thereunder or with respect to
any security therefor and the enforcement thereof, and waive presentment,
demand, notice of dishonor, protest and all other notices whatsoever; and (b)
consent and agree (i) that all or any of the Collateral may be exchanged,
released, surrendered or sold from time to time, (ii) that the payment of the
note, or any of the liabilities of the Maker thereof, may be extended or said
note renewed any number of times and for any period (whether or not longer than
the original period of said note), (iii) that the holder of said note may grant
any releases, compromises or indulgences with respect to said note or any
extensions or renewals thereof or any security therefor or to any party liable
thereunder or hereunder (including but not limited to failure or refusal to
exercise one or more of the rights or remedies provided by said note), and (iv)
that any of the provisions of said note may be modified; all without notice to
or consent of and without affecting the liability of the undersigned as
endorsers and sureties, and further consent and agree that any of the
undersigned may be sued by the holder hereof with or without joining any of the
other endorsers or makers of said note and without first or contemporaneously
suing any such other persons, or otherwise seeking or proceeding to collect from
them or any of them, and without first or contemporaneously undertaking to
enforce any rights with respect to any security.
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The undersigned acknowledges having received and read the NOTICE TO
CO-SIGNER appearing on the reverse side hereof.
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_____________________________(DATE) ___________________________(SEAL)
_____________________________(DATE) ___________________________(SEAL)
_____________________________(DATE) ___________________________(SEAL)
FLORIDA DOCUMENTARY STAMP TAX REQUIRED BY LAW IN THE AMOUNT OF $____________
HAS BEEN PAID OR WILL BE PAID DIRECTLY TO THE DEPARTMENT OF REVENUE. CERTIFICATE
OF REGISTRATION # _____.
Sun Bank [logo]
CORPORATE BORROWING RESOLUTION
SUN BANK, NATIONAL ASSOCIATION
(Name of Bank)
I, the undersigned, hereby certify to said Bank that I am the duly
elected Secretary of COMPUTER SCIENCE INNOVATIONS, INC., A Florida Corporation
Located at Palm Bay City; Florida State, a corporation duly organized and
existing under the laws of the State of Florida; that the following is a true
and correct copy of resolutions adopted by the board of directors of said
corporation at a meeting duly held on the 6th day of August, 1990; that said
meeting was called and held pursuant to law at which a quorum was present; and
that said resolutions are in full force and effect and have not been rescinded
or modified.
RESOLVED, that the following officers (insert titles only) President
and Executive Vice-President of this corporation, or any (insert number required
to sign) 2 of them are hereby authorized; from time to time; to borrow money on
behalf of this corporation from said Bank in such amounts, for such lengths of
time and at such rates of interest and upon such terms and conditions as said
officer or officers may deem expedient, provided that the aggregate amount of
such borrowing, pursuant to this resolution, shall not at any one time exceed
the sum of ONE MILLION and 00/100 Dollars ($1,000,000.00), in addition to such
amounts as may be otherwise authorized; to execute and deliver to said Bank, in
the name of and on behalf of this corporation, negotiable or non-negotiable
notes or demands, letters of credit and other like obligations of this
corporation, indemnity agreements, guaranty agreements and other agreements,
assignments, endorsements, hypothecations and warehouse and other type receipts,
and any and all other instruments or documents considered by said Bank to be
necessary or proper in connection with any transaction, or transactions, between
or through said Bank and this corporation; to sell, re-register, pledge,
hypothecate, assign, transfer or set over, as security or otherwise for any
notes or obligations of this corporation, any and all properties, securities or
other assets now or hereafter belonging to this corporation, and to discount to
said Bank any and all such notes and other obligations issued to or owned by
this corporation, and to endorse same for such purpose, and that the said Bank
shall not be responsible for or required to see to the application of any of the
funds of this corporation deposited with or checked out, or borrowed from it, or
secured by the discount of notes and obligations to it as hereinbefore provided,
and all such transactions shall be conclusively presumed to be legally binding
upon this corporation; and
FURTHER RESOLVED, that the foregoing officers are hereby authorized,
from time to time, to enter in and sign on behalf of this corporation, an
agreement or agreements, as they may be amended or supplemented from time to
time, and such further documents as may be contemplated thereby, for the lease
of equipment from Lender, for such equipment, for such length of time, for such
rental and upon such terms and conditions as said officer or officers may deem
expedient from time to time, provided that the aggregate amount of rent payable
under all such leases of equipment shall not exceed $ N/A ; and
FURTHER RESOLVED, that the Secretary (or any other officer of this
corporation) shall certify to said Bank the names of the presently duly elected
and qualified officers of this corporation and shall from time to time hereafter
as changes in the personnel of said officers are made, immediately certify such
changes to the Bank, and said Bank shall be fully protected in relying on such
certifications and shall be indemnified and saved harmless from any claims,
demands, expenses, loss, or damage resulting from, or growing out of, honoring
the signature of any officer so certified, or refusing to honor any signature
not so certified; and
FURTHER RESOLVED, that the foregoing resolutions shall remain in full
force and effect until express written notice of their prospective amendment of
rescission shall have been furnished to and received by said Bank, and that
receipt of such notice shall not affect any action taken by the Bank prior
thereto; and
FURTHER RESOLVED, that the Secretary be, and he hereby is authorized
and directed to certify to said Bank the foregoing resolutions and to certify
that the provisions thereof are in conformity with the Charter and By-laws of
this corporation and that said resolutions are in full force and effect and have
not been rescinded or modified.
I further certify that there is no provision in the Charter or By-laws
of said corporation limiting the power of the Board of Directors to pass the
foregoing resolutions; that the same are in conformity with the provisions of
said Charter and By-laws; and that I am the custodian of the minutes of said
Board of Directors.
I further certify that the following are the names and official
signatures of the duly elected, qualified and acting officers of said
corporation: and that the corporate seal impressed hereon is the true corporate
seal of said corporation.
NAME OFFICIAL SIGNATURE
President Xxxx X. Xxxxx /s/ Xxxx Xxxxx
Exec. Vice President Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxxx
Vice-President
Secretary___________________________________ ______________________________
Assistant Secretary_________________________ ______________________________
Treasurer___________________________________ ______________________________
Assistant Treasurer_________________________ ______________________________
IN WITNESS WHEREOF, I have hereunto subscribed my name as Secretary and
affixed the seal of said corporation, pursuant to due and lawful corporate
authority this the 8th day of January, 1991.
(Corporate Seal) /s/ Xxxxx X. Xxxxxxxx
Secretary Xxxxx X. Xxxxxxxx
---------------------------
Contract No.
SECURITY AGREEMENT
(INVENTORY AND ACCOUNTS)
THIS ASSIGNMENT AND AGREEMENT made January, 1991, by and between SUN BANK,
NATIONAL ASSOCIATION
(Name of Secured Party)
herein called "Bank", and
COMPUTER SCIENCE INNOVATIONS, INC., a Florida Corporation
(Name(s) of Borrower(s))
of 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxx Xxx Xxxxxxx Xxxxxx, Xxxxxxx
--------------------------------------------------------------------------
(Name and Street) (City) (County) (State)
herein called "Borrower",
In consideration of loans or advances made or to be made by Bank to
Borrower, and for other value received by Borrower, the parties hereto,
intending to be legally bound, agree as follows:
1. As used herein: (a) "Account" means an immediate right to payment
for goods sold and for goods leased and for services rendered, or any of them,
and includes a right to payment under a contract whether or not it has been
earned by performance. "Qualified Account" means an Account which has been due
less than ninety (90) days; (b) "Inventory" means goods held for sale or lease
or being processed for sale or lease in Borrower's business, as now or hereafter
conducted, including all materials, goods and work in process, finished goods,
and other tangible property now owned or hereafter acquired and held for sale or
lease or furnished or to be furnished under contracts of service or used or
consumed in Borrower's business; (c) "Goods" means all articles of tangible
personal property, sold, supplied, or otherwise disposed of, represented by an
Account; (d) "Purchaser" includes the buyer of goods from Borrower, the customer
for which services have been rendered or materials furnished by Borrower, or the
party with whom Borrower has contracted; (e) "Borrower" includes all
corporations and all individuals executing this agreement as parties hereto and
all members of a partnership when Borrower is a partnership, each of whom shall
be jointly and severally liable individually and as partners hereunder; (f)
"security interest" means an interest in property which secures payment or
performance of an obligation; (g) "liability" or "liabilities" includes all
liabilities (primary, secondary, direct, contingent, sole, joint or several) due
or to become due or that may be hereafter contracted or acquired, of Borrower
(including any Borrower and any other person) to Bank.
2. Bank will from time to time hereafter lend Borrower, on the security
of Accounts and Inventory, or any of them, acceptable to Bank, such amounts as
Bank may determine from time to time, at such rates of interest and payable and
on such terms as Bank may from time to time specify or require, and Bank may
require that such loans, or any of them, be evidenced by one or more promissory
notes of the Borrower in form satisfactory to Bank. For the convenience of the
Borrower, the Bank may make loans and advances to the Borrower under any
promissory note the principal face amount of which is in excess of the actual
unpaid principal balance at such time.
3. As security for the payment of all loans and advances now or in the
future made hereunder and for all Borrower's liabilities, including any
extensions, renewals, or changes in form of any thereof, Borrower hereby assigns
to Bank and grants to Bank a security interest in: (a) all Accounts and
Inventory owned by Borrower at the date of this agreement; (b) all Accounts and
Inventory at any time hereafter acquired by Borrower; and (c) all proceeds of
all such Accounts and Inventory.
4. So long as any liability to Bank is outstanding, Borrower will not
without the prior written consent of Bank borrow from anyone except Bank on the
security of, or pledge or grant any security interest in, any Account or any of
Borrower's Inventory to anyone except Bank, or permit any lien or encumbrance to
attach to any of the foregoing, or any levy to be made thereon, or any financing
statement (except Bank's financing statement) to be on file with respect
thereto.
5. Borrower represents and warrants that the location where it keeps
the bulk of its Inventory is at the address specified in the preamble to this
agreement, unless a different address has been specified in the following space:
Same
(No. and Street) (City) (County) (State)
and that the office where it keeps its records concerning all of its Accounts is
at the address specified in the preamble to this agreement, unless a different
address has been specified in the following space:
Same
(No. and Street) (City) (County) (State)
Borrower will immediately notify Bank in writing of any change in the location
of the place of business where the bulk of its Inventory is located or any
change in the location of the place of business where the records concerning its
Accounts are kept.
6. Borrower will (a) maintain Accounts and Inventory in such quantities
that at all times 70 % of the face amount of its Qualified Accounts, less
allowable discount, plus 0 % of the cost or wholesale market value, whichever is
lower, of its Inventory, plus 100% of the balance in the Cash Collateral Account
hereinafter referred to, or such other percentages thereof as may from time to
time be fixed by Bank upon notice to Borrower, shall be at least equal to
Borrower's liabilities to Bank; and Borrower will pay to Bank, in reduction of
its liabilities, such sums as may be necessary from time to time to maintain
such ratio; (b) collect its Accounts and sell its Inventory only in the ordinary
course of business; (c) furnish Bank at the time of each borrowing, and at such
other intervals as Bank may prescribe, with a Borrower's Certificate (in such
form as Bank may from time to time specify or require) showing the aggregate
face amount of its Qualified Accounts and the aggregate cost and wholesale
market value of its Inventory; (d) keep accurate and complete records of its
Accounts and Inventory; (e) pay and discharge when due all taxes, levies and
other charges on its Inventory; (f) keep its Inventory insured in amounts not
less than the full insurable value thereof, for the benefit of Bank (to whom
loss shall be payable by New York Standard or Union Standard endorsements), in
such companies and against such risks as may be satisfactory to or required by
Bank; pay the cost of all such insurance; and deliver certificates evidencing
such insurance to Bank; and Borrower assigns to Bank all right to receive
proceeds of such insurance.
7. Unless Bank notifies Borrower in writing that it dispenses with any
one or more of the following requirements, Borrower will (a) give Bank
assignments, in form acceptable to Bank, of specific Accounts or groups of
Accounts, and of moneys due and to become due under specific contracts; (b)
furnish to Bank a copy of the invoice applicable to each Account assigned to
Bank or arising out of a contract, bearing a statement that such Account has
been assigned to Bank and such additional statements as Bank may require; (c)
furnish Bank at the time of each borrowing, and at such other intervals as Bank
may prescribe or require, with a schedule (in such form as Bank may from time to
time specify or require) of Borrower's Inventory and Qualified Accounts which
describe the same, or such thereof as Bank may require, together with such other
information relating thereto as the Bank may specify or require; (d) make no
change in any assigned Accounts or in any Account arising out of a contract
assigned to Bank, and make no material change in the terms of any such contract;
(e) furnish to Bank all information received by Borrower affecting the financial
standing of any Purchaser whose Account has been assigned to Bank; (f) receive
as the sole property of Bank and hold as trustees for Bank all moneys, checks,
notes, drafts, and other property (herein called "items of payment")
representing the proceeds of any Account or Inventory in which Bank has a
security interest, which comes into the possession of Borrower; and deposit all
such items of payment immediately in the exact form received in a special
account of Borrower in Bank entitled "Cash Collateral Account" in which account
Bank shall have a security interest to secure all Borrower's liabilities and
with respect to which account Bank alone shall have power of withdrawal; (g) pay
Bank the amount loaned against any Account assigned to Bank where the goods are
returned by the Purchaser, or where the contract is canceled or terminated; (h)
immediately notify Bank if any of its contracts arise out of contracts with the
United States or any department, agency, or instrumentality thereof, and execute
any instruments and take any steps required by Bank in order that all moneys due
and to become due under any such contract shall be assigned to Bank and notice
thereof given to the Government under the Federal Assignment of Claims Act; (i)
deliver to Bank with appropriate endorsement or assignment, as Bank may require,
any instrument or chattel paper representing an Account. Any permission granted
to Borrower by Bank to omit any of the requirements of this paragraph 7 may be
revoked by Bank at any time.
8. Borrower will promptly, if requested by Bank, (a) xxxx its records
evidencing its Accounts in a manner satisfactory to Bank so as to show the same
have been assigned to Bank; (b) pay Bank the unpaid portion of any assigned
Account if Bank shall at any time reject the Account as unsatisfactory, which
right Bank shall have and may exercise at any time and for any reason
whatsoever, and until such payment is made by Borrower, Bank may retain any such
Account as security and may charge any deposit account of Borrower with any such
amounts; (c) join with Bank in executing a financing statement, notice
affidavit, or similar instrument in form satisfactory to Bank, and such other
instruments as Bank may from time to time request; and pay the cost of filing
the same in any public office deemed advisable by Bank; and (d) give Bank such
financial statements, reports, certificates, lists of Purchasers (showing names,
addresses, and amounts owing), and other data concerning its Accounts,
contracts, collections, inventory and other matters as Bank may from time to
time specify; and permit Bank or its nominee to examine all of Borrower's
records relating thereto at any time, and to make extracts therefrom, and to
inspect and check Borrower's Inventory.
9. Borrower warrants (a) in connection with each Account covered by the
agreement: (i) it constitutes a Qualified Account as defined herein is not
evidenced by a judgment, an instrument or chattel paper (except such judgment as
has been assigned to Bank, and except such instrument or chattel paper as has
been endorsed and delivered to Bank), and represents a bona fide transaction and
Borrower has possession of (and will promptly deliver to Bank upon Bank's
request) or has delivered to Bank shipping or delivery receipts evidencing
shipment or delivery of the goods and, if representing services, the services
have been fully performed; (ii) the amount shown on Borrower's books and on any
invoice or statement delivered to Bank is owing to Borrower; (iii) the title of
Borrower to the Account and, except as against the Purchaser, to any goods is
absolute; (iv) the Account has not been transferred to any other person, and no
person, except Borrower, has any claim thereto, or, with the sole exception of
Purchaser, to the goods; (v) no partial payment has been made by anyone; and
(vi) no set-off or counterclaim to such Account exists and no agreement has been
made with any person under which any deduction or discount may be claimed,
except regular discounts allowed by Borrower for prompt payments; (vii) it
arises under an existing binding written contract between Borrower and
Purchaser; and (b) in connection with its Inventory: that Borrower is and will
be the absolute owner thereof, free and clear of all encumbrances and security
interests other than the Bank's security interest.
10. Borrower shall pay Bank such interest as may be specified in any
note evidencing a loan or advance made hereunder and such service charges as may
be agreed upon and shall pay to Bank all costs and expenses, including
attorneys' fees, incurred by it in the preservation or collection of collateral.
Changes in interest rate and service charges may be made by Bank from time to
time, notwithstanding the interest rate specified in any note evidencing a loan
or advance hereunder, upon notice to Borrower and shall become effective on the
date therein specified.
11. Bank shall have the right at any time and from time to time,
without notice, to (a) apply any part or all the moneys in the Cash Collateral
Account representing collected items against any liability of borrower to Bank,
and Bank shall upon demand by Borrower make such application against such
liability or liabilities as Bank may itself select; (b) release to Borrower such
part of the moneys in the Cash Collateral Account as Bank may elect; (c) charge
to Borrower's deposit account any item of payment credited to the Cash
Collateral Account which is dishonored by the drawee or maker thereof; (d)
endorse all items of payment which may come into its hands payable to Borrower;
(e) notify Purchasers that Accounts have been assigned to Bank, forward invoices
to Purchasers, directing them to make payments to Bank, collect all Accounts in
its or Borrower's name, and take control of any cash or non-cash proceeds of
Accounts and of any Inventory; (f) compromise, extend, or renew any Account or
deal with the same as it may deem advisable; (g) make exchanges, substitutions
or surrenders of collateral; (h) insure inventory to its satisfaction if
Borrower fails to do so and pay for the same, and pay, for the account of
Borrower, any taxes, levies, or other charges affecting Borrower's inventory or
upon or on account of the Security Agreement or any liability or any writing
evidencing any liability, which Borrower fails to pay, and any such payment
shall constitute a liability of Borrower.
12. Until default, Borrower may use its inventory in any lawful manner
not inconsistent with this agreement and with the terms of insurance thereon;
may sell its inventory in the ordinary course of business; and may use and
consume any raw materials or supplies, the use and consumption of which is
necessary in order to carry on Borrower's business.
13. If at any time any warranty, representation, certificate or
statement of Borrower is not true, or if any liability or any part or
installment thereof or interest thereon is not paid when due, or if any event of
default as defined in any note or other evidence of liability held by Bank
should occur, or if Borrower should fail to observe or perform any agreement or
term hereof, or if Bank at any time feels insecure for any reason whatsoever,
Bank may, at its option, thereupon or thereafter declare all liabilities of
Borrower to Bank, or any of them selected by Bank (notwithstanding any
provisions thereof), immediately due and payable without demand or notice of any
kind and the same thereupon shall immediately become and be due and payable
without demand or notice (but with such adjustments, if any, with respect to
interest or other charges as may be provided for in the promissory note or other
writing evidencing such liability), and Bank may, in addition to any other
rights and remedies which it may have, immediately and without demand, exercise
any and all the rights and remedies granted to a secured party upon default
under the Florida Uniform Commercial Code; and upon request or demand of Bank,
Borrower shall, at its expense, assemble Borrower's Inventory and make it
available to Bank at a convenient place acceptable to Bank; and Borrower shall
promptly pay to Bank any and all costs and expenses, including legal expenses
and reasonable attorney's fees incurred or paid by Bank in protecting and
enforcing liabilities and the rights of Bank hereunder, including Bank's right
to take possession of Borrower's Inventory and the proceeds of Accounts and
Inventory, and to hold, prepare for sale, sell and dispose of such Inventory.
Any notice of sale, disposition or other intended action by Bank, sent to
Borrower at the address specified in the preamble to this agreement, or such
other address of Borrower as may from time to time be shown on Bank's records,
at least five days prior to such action, shall constitute reasonable notice to
Borrower. Upon disposition by Bank of any property in which Bank has a security
interest hereunder, or upon collection by Bank of the proceeds of Accounts,
Borrower shall be and remain liable for any deficiency; and Bank shall account
to Borrower for any surplus, but Bank shall have the right to apply all or any
part of such surplus (or to hold the same as a reserve against) all or any
liabilities of Borrower to Bank, whether or not they, or any of them, be then
due, without marshalling of assets and in such order of application as Bank may
from time to time elect.
14. Borrower waives protest of all commercial paper at any time held by
Bank on which borrower is in any way liable, notice of non-payment at maturity
of any and all Accounts, and except where required hereby or by law, notice of
action taken by Bank; and hereby ratifies and confirms whatever Bank may do.
15. No waiver by Bank of any default shall operate as a waiver of any
other default or of the same default on a future occasion. No delay or omission
on the part of Bank in exercising any right or remedy shall operate as a waiver
thereof, and no single or partial exercise by Bank of any right or remedy shall
preclude any other or further exercise thereof or the exercise of any other
right or remedy. Time is of the essence of this agreement. The provisions of
this agreement are cumulative and in addition to the provisions of any liability
and any note or other writing evidencing any liability secured by this
agreement, and Bank shall have all the benefits, rights and remedies of and
under any liability and any note or other writing evidencing any liability
secured hereby. If more than one party shall execute this agreement, the term
"Borrower" shall mean all parties signing this agreement and each of them, and
all such parties shall be jointly and severally obligated and liable hereunder.
The singular pronoun, when used herein, shall include the plural, and the neuter
shall include the masculine and feminine. All rights of Bank hereunder shall
inure to the benefit of its successors and assigns; and all obligations of
Borrower shall bind the heirs, executors, administrators, successors and assigns
of each Borrower.
16. Borrower releases Bank from all claims for loss or damage caused by
any failure to collect any account or enforce any contract or by any act or
omission on the part of Bank, its officers, agents and employees, except willful
misconduct.
17. This agreement may be terminated by either party giving the other
written notice of intention to terminate on a date named in said notice, mailed
to the last known address of the party to whom such notice is addressed; but no
such termination shall in any way affect the rights and liabilities of the
parties hereunder relating to loans or advances made, Accounts, Inventory or
other property pledged prior to the date named in such notice.
18. This agreement has been delivered in the State of Florida and shall
be construed in accordance with the laws of Florida. Wherever possible, each
provision of this agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
agreement.
IN WITNESS WHEREOF, this agreement has been duly executed as of the
date hereinabove first written.
Signed, sealed and delivered in the COMPUTER SCIENCE INNOVATIONS, INC.,
presence of a Florida Corporation
By: /s/ Xxxx Xxxxx (SEAL)
Xxxx X. Xxxxx, President
By: /s/ Xxxxx X. Xxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxx, Executive
Vice-President
(CORPORATE SEAL)
ATTEST: Sun Bank, National Association
(Name of Bank)
By: (SEAL)
As its Cashier As its President
BANK
SUN
BANK [logo]
--------------------
Contract No.
SECURITY AGREEMENT
(EQUIPMENT AND CONSUMER GOODS)
COMPUTER SCIENCE INNOVATIONS, INC., a Florida Corporation
(Name(s) of Borrower(s))
(and if more than one, each of them jointly and severally), hereinafter called
"Borrower", of 0000 Xxxxxxxxx Xxxxxx, N.E.,
(No. and Street)
Palm Bay Brevard County, Florida ,
----------------------------------------------------------
(City) (County) (State)
for value received and intending to be legally bound, hereby grants to
SUN BANK, NATIONAL ASSOCIATION, Florida,
(Name of Secured Party)
hereinafter called "Secured Party", a security interest in the following
property: All equipment of Borrower
----------- ------ ----------------- --------------- ------------ --------------
Year/ Manufacturer or Description of Model Number Manufacturer's
New or Used Model Make (Trade Name) Collateral or Series Serial No.
----------- ------ ----------------- --------------- ------------ --------------
----------- ------ ----------------- --------------- ------------ --------------
----------- ------ ----------------- --------------- ------------ --------------
----------- ------ ----------------- --------------- ------------ --------------
together with all increases, parts, fittings, accessories, equipment, and
special tools now or hereafter affixed to any or any part thereof or used in
connection with any thereof, and all replacements of all or any part thereof
plus any returned or unearned premiums from any insurance financed by the
Secured Party in conjunction with this transaction (all of which is hereinafter
called "Collateral"), to secure the payment of a promissory note or notes
executed by Borrower in the amount of ONE MILLION and 00/100 Dollars
($1,000,000.00), of even date herewith, and any and all extensions,
modifications or renewals thereof, and also to secure the performance by
Borrower of the agreements hereinafter set forth, and all other liabilities or
obligations (primary, secondary, direct, contingent, sole, joint or several)
due, or to become due or which may be hereafter contracted or acquired of each
Borrower to Secured Party (the foregoing hereinafter being called the
"liabilities").
Borrower hereby agrees that:
1. (a) Borrower is the owner of the Collateral clear of all liens and
security interests except the security interest granted hereby; (b) Borrower has
the right and power to make this Agreement; and (c) the Collateral is used or
acquired for use primarily for the purpose checked: personal, family or
household purposes; |_| farm purposes; or |_| business purposes; and (d) if the
Collateral consists of "household goods" as defined in 12 C.F.R. 227.12(d) or if
otherwise checked here |_| then the Collateral is being acquired with the
proceeds of the loan provided for in or secured by this Agreement, and the
proceeds will be used for no other purpose, and Borrower hereby authorizes
Secured Party to disburse the proceeds or any part thereof directly to the
seller of the Collateral or to the insurance agent or broker, or both, as shown
on Secured Party's records.
2. (a) The Collateral will be kept at 0000 Xxxxxxxxx Xxxxxx, N.E.,
(No. and Street)
Palm Bay, Brevard County, FL
(City) (County) (State)
or if left blank, at the address shown at the beginning of this agreement;
Borrower will promptly notify Secured Party of any change in the location of the
Collateral within said state; and Borrower will not remove the Collateral from
said state without the written consent of Secured Party. (b) if the Collateral
is used or acquired for use primarily for personal, family or household
purposes, or for farm purposes, Borrower's residence in Florida is that shown at
the beginning of this agreement and Borrower will immediately notify Secured
Party of any change in the location of said residence.
3. (a) If the Collateral is acquired or used primarily for
business use and is of a type normally used in more than one state, whether or
not so used, and Borrower has a place of business in more than one state,
the chief place of business of Borrower is: 0000 Xxxxxxxxx Xxxxxx, N.E.,
(No. and Street)
Palm Bay, Brevard County, Florida
(City) (County) (State)
or, if left blank, is that shown at the beginning of this agreement, and
Borrower will immediately notify Secured Party in writing of any change in
Borrower's chief place of business; and (b) if certificates of title are issued
or outstanding with respect to any of the Collateral, Borrower will promptly
cause the interest of Secured Party to be properly noted thereon and deliver
such certificates of title to Secured Party.
4. Borrower will defend the Collateral against the claims and
demands of all persons, other than Secured Party, at any time claiming the same
or a ______.
5. No Financing Statement covering any Collateral or any proceeds
thereof is on file in any public office; Borrower authorizes Secured Party to
file, in ______ this authorization will be given effect, a Financing Statement
signed only by the Secured Party describing the Collateral in the same manner as
it is described ______ from time to time at the request of Secured Party,
execute one or more Financing Statements and such other documents (and pay the
cost of filing or recon______ public offices deemed necessary or desirable by
the Secured Party) and do such other acts and things, all as the Secured Party
may request to establish______ enforceable first priority security interest in
the Collateral (free of all other liens and claims whatsoever) to secure the
payment of the liabilities.
6. Borrower will not (a) permit any liens or security interest other
than Secured Party's security interest, to attach to any of the Collateral; (b)
permit a______ to be levied upon under legal process; (c) sell, transfer, lease,
or otherwise dispose of any of the Collateral or any interest therein, or offer
so to do, without the p______ of Secured Party; (d) permit anything to be done
that may impair the value of any of the Collateral or the security intended to
be afforded by this agreement ______ Collateral to be or become a fixture (and
it is expressly covenanted, warranted and agreed, that the Collateral, and every
part thereof, whether affixed to any re______ and remain personal property), or
to become an accession to other goods or property.
7. Borrower will (a) at all times keep the Collateral insured in
amounts not less than the full insurable value thereof, against loss, damage,
theft, and ______ Secured Party may require in such companies, under such
policies, in such form and for such periods, as shall be satisfactory to Secured
Party, and each ______provide, by New York Standard or Union Standard
endorsement, that loss thereunder and proceeds payable thereunder shall be
payable to Secured Party ______ appear (and Secured Party may apply any proceeds
of such insurance which may be received by Secured Party toward payment of the
liabilities, whether due ______ order of application as Secured Party may
determine) and each such policy shall provide for a minimum of 10 days written
cancellation notice to Secured Party ______ policy shall, if Secured Party so
requests, be deposited with Secured Party; and Secured Party may act as attorney
for Borrower in obtaining, adjusting, settling ______such insurance and
endorsing any drafts; (b) at all times keep the Collateral free from any adverse
lien, security interest, or encumbrance and in good order and ______ waste or
destroy the Collateral or any part thereof.
8. (a) Borrower will not use the Collateral or permit the same to be
used in violation of any statute, law or ordinance; and Secured Party may
examine ______ Collateral at any time, wherever located. (b) Borrower will pay
promptly when due all taxes and assessments upon the Collateral or for its use
of operation or upon ______or upon any note or notes or other writing evidencing
the liabilities, or any of them.
9. At its option, Secured Party may discharge taxes, liens or security
interests or other encumbrances at any time levied or placed on the Collateral
______ insurance on the Collateral, and may pay for the maintenance and
preservation of the Collateral. Borrower agrees to reimburse Secured Party on
demand for an______ or any expense incurred, by Secured Party, pursuant to the
foregoing authorization, together with interest thereon at the highest lawful
rate and each such pay______ thereon shall be secured by this Security
Agreement. Until default, Borrower may have possession of Collateral and use it
in any lawful manner not inco______ agreement and not inconsistent with any
policy of insurance thereon.
10. Borrower shall be in default under this agreement upon the
happening of any of the following events or conditions: (a) failure or omission
to pay whe______ (or any instalment thereof or interest thereon), or default in
the payment or performance of any obligation, covenant, agreement, or liability
contained or referred______ any warranty, representation, or statement made or
furnished to Secured Party by or on behalf of any Borrower proves to have been
false in any material respects ______furnished; (c) loss, theft substantial
damage, destruction, sale, or encumbrance to or of any of the Collateral, or the
making of any levy, seizure, or attachment th______ (d) any Obligor (which term
as used herein, shall mean each Borrower and each other party primarily or
secondarily or contingently liable on any of the lia______ insolvent or unable
to pay debts as they mature or makes an assignment for the benefit of creditors,
or any proceeding (including any proceeding in bankruptcy) ______ against any
Obligor alleging that such Obligor is insolvent or unable to pay debts as they
mature; (e) entry of any judgment against any Obligor; (f) death of any ______
natural person, or of any partner of any Obligor which is a partnership; (g)
dissolution, merger or consolidation, or transfer of a substantial part of the
property of a______ is a corporation or a partnership; (h) appointment of a
receiver for the Collateral or any part thereof or for any property in which any
Borrower has an interest; (i) ______ used by anyone to transport or store goods
the possession, transportation or use of which is illegal.
11. Upon the occurrence of any such default or at any time thereafter,
or whenever the Secured Party feels insecure for any reason whatsoever, Secured
______ option, declare all liabilities secured hereby, or any of them
(notwithstanding any provisions thereof), immediately due and payable without
demand or notice of a______ same thereupon shall immediately become and be due
and payable without demand or notice (but with such adjustments, if any, with
respect to interest or other ______ be provided for in the promissory note or
other writing evidencing such liability), and Secured Party shall have and may
exercise from time to time any and all right ______ of a Secured Party under the
Uniform Commercial Code and any and all rights and remedies available to it
under any other applicable law; and upon request or demand ______ Party,
Borrower shall, at its expense, assemble the Collateral and make it available to
the Secured Party at a convenient place acceptable to Secured Party; and ______
promptly pay all costs of Secured Party of collection of any and all
liabilities, and enforcement of any rights hereunder, including reasonable
attorneys' fees and ______ and expenses of any repairs to any of the Collateral
and expenses of any repairs to any realty or other property to which any of the
Collateral may be affixed. Any ______ disposition or other intended action by
Secured Party, sent to Borrower at the address of Borrower specified above or at
any other address shown on the records of ______ at least five days prior to
such action, shall constitute reasonable notice to Borrower. In the event of
repossession, Borrower authorizes Secured Party to take in______ personal
property found in or on the Collateral and to hold the same until claimed by
Borrower at the principal place of business of Secured Party, and in the event
______ property is not claimed within a reasonable time by Borrower, Secured
Party is authorized to dispose of same. Expenses of retaking, holding, preparing
for sale, selling______ shall include Secured Party's reasonable attorneys' fees
and legal expenses. Any excess or surplus of proceeds of any disposition of any
of the Collateral may ______ Secured Party toward payment of such of the
liabilities, without marshalling of assets and in such order of application, as
Secured Party may from time to time ______.
12. No waiver by Secured Party of any default shall operate as a waiver
of any other default or of the same default on a future occasion. No delay or
omission______ Secured Party in exercising any right or remedy shall operate as
a waiver thereof, and no single or partial exercise by Secured Party of any
right or remedy shall prec______ or further exercise thereof or the exercise of
any other right or remedy. Time is of the essence of this agreement. The
provisions of this agreement are cumulative an______ the provisions of any note
secured by this agreement, and Secured Party shall have all the benefits, rights
and remedies of and under any note secured hereby. If ______ party shall execute
this agreement, the term "Borrower" shall mean all parties signing this
agreement and each of them, and all such parties shall be jointly ______
obligated hereunder provided, however, if one of the parties signing this
agreement has not executed the promissory note or notes referred to herein, said
party ______ personal liability under, or in conjunction with, said promissory
note or notes. The singular pronoun, when used herein, shall include the plural
and the neuter ______ masculine and feminine. If this agreement is not dated
when executed by the Borrower, the Secured Party is authorized without notice to
the borrower, to date thi______ This agreement shall become effective as of the
date of this agreement. All rights of Secured Party hereunder shall inure to the
benefit of its successors and as ______ liabilities of Borrower shall bind the
heirs, executors, administrators, successors and assigns of each Borrower.
13. This agreement has been delivered in the State of Florida and shall
be construed in accordance with the laws of Florida. Wherever possible, each
pro______ agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this agreement shall be
prohibited by or ______ applicable law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining ______ this agreement.
IN WITNESS WHEREOF, this agreement has been duly executed as of the
________ day of ___, 1991
Signed, sealed and delivered COMPUTER SCIENCE INNOVATIONS, INC.,
in the presence of: a Florida Corporation
__________________________________ By: /s/ Xxxx Xxxxx
Xxxx X. Xxxxx, President
__________________________________ By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Exec. Vice-President
STATE OF FLORIDA FINANCING STATEMENT UNIFORM COMMERCIAL CODE Form UCC-1,Rev.1981
This FINANCING STATEMENT is presented to a filing officer for filing pursuant to
the Uniform Commercial Code:
----------------------------------------- --------------------------------------
THIS SPACE FOR USE OF FILING OFFICER
DEBTOR (Last Name First If a Person) Date, Time, Number, and Filing Office
NAME COMPUTER SCIENCE INNOVATIONS,
INC., a Florida Corporation
1A
MAILING ADDRESS 0000 Xxxxxxxxx Xxxxxx, X.X.
XXXX Xxxx Xxx XXXXX XX 00000
------------------------------------------------
------------------------------------------------
MULTIPLE DEBTOR (if Any) (Last Name First if a Person)
NAME
1B
MAILING ADDRESS
CITY STATE
--------------------------------------------------
--------------------------------------------------
MULTIPLE DEBTOR (if Any) (Last Name First if a Person)
NAME
1C
MAILING ADDRESS
CITY STATE
--------------------------------------------------
--------------------------------------------------
SECURED PARTY (Last Name First if a Person)
NAME SUN BANK, NATIONAL ASSOCIATION
2A
MAILING ADDRESS
000 Xxxxxx Xxxxx
XXXX Xxxxxxxxx XXXXX XX 00000
-------------------------------------------------- ----------------------------
--------------------------------------------------
AUDIT UPDATE
MULTIPLE SECURED PARTY (if Any)
(Last Name First if a Person)
NAME
2B
MAILING ADDRESS
CITY STATE
-------------------------------------------------
------------------------------------------------- ------------------------------
VALIDATION INFORMATION
ASSIGNEE OF SECURED PARTY (if Any)
(Last Name First if a Person)
NAME
3
MAILING ADDRESS
CITY STATE
------------------------------------------------ -------------------------------
Name and Address
of Preparer
4 This FINANCING DOCUMENT covers the following types or items of property
(include description of real property on which located and owner of record
when required). If more space is required, attach additional sheets
81/2" x 11".
All accounts, inventory and equipment of Borrower.
--------------------------------------------------- ---------------------------
--------------------------------------------------- ---------------------------
7 No. of additional
Sheets presented:
5 Proceeds of collateral are covered as provided
in Sections 679.203 and 679.206, F.S.
0
--------------------------------------------------- ---------------------------
6 Filed with: Secretary of State
--------------------------------------------------- ---------------------------
8 (Check |_|) |X| All documentary stamp taxes due and
payable or to become due and payable pursuant to Section
201.22, F.S.
|_| Florida Documentary Stamp Tax is not required.
-------------------------------------------------------------------------------
10 (Check|_| if so)
9 This statement is filed without the debtor's Debtor is a
signature to perfect a security |_| transmitting utility
interest in collateral. (Check |_| if so.)
|_| already subject to a security Products of collateral
interest in another |_| are covered
jurisdiction when it was brought into this
state or debtor's location changed to this state.
|_| which is proceeds of the original
collateral described above
in which a security interest was
perfected.
|_| as to which the filing has lapsed.
|_| acquired after a change of name,
identity, or corporate structure of
|_| the debtor, or |_| secured party
-----------------------------------------------------------------------------
11 SIGNATURE(S) OF DEBTOR(S)
COMPUTER SCIENCE INNOVATIONS,
INC., a Florida
13 Return copy to: corporation
NAME: Xxxxxx X. Xxxxxxx, Xx., Esq.
ADDRESS: Xxxxxx, Normile, Dettmer, et al. By: /s/ Xxxx Xxxxx
000 Xxxxx Xxxxxx Xxxxxxxxx
CITY: Melbourne By: /s/ Xxxxx X. Xxxxxxxx
---------------------
STATE: FL ZIP CODE 32901
---------------------
12 SIGNATURE(S) OF SECURED PARTY(IES)
SUN BANK, NATIONAL ASSOCIATION
By: /s/
---------------------------------------- ---------------------------------------
STATE OF FLORIDA FINANCING STATEMENT -- UNIFORM COMMERCIAL CODE -- Form UCC-1,
Rev. 1981 This FINANCING STATEMENT is presented to a filing officer for filing
pursuant to the Uniform Commercial Code.
------------------------------------------ -------------------------------------
THIS SPACE FOR USE OF FILING OFFICER
Date, Time, Number, and Filing Office
DEBTOR (Last Name First if a Person)
NAME COMPUTER SCIENCE INNOVATIONS,
INC., a Florida Corporation
1A
MAILING ADDRESS 0000 Xxxxxxxxx Xxxxxx, X.X.
XXXX Xxxx Xxx XXXXX XX 00000
--------------------------------------------
--------------------------------------------
MULTIPLE DEBTOR (if Any) (Last Name First if a Person)
NAME
1B
MAILING ADDRESS
CITY STATE
-----------------------------------------------------
-----------------------------------------------------
MULTIPLE DEBTOR (if Any) (Last Name First if a Person)
NAME
1C
MAILING ADDRESS
CITY STATE
----------------------------------------------------
----------------------------------------------------
SECURED PARTY (Last Name First if a Person)
NAME SUN BANK, NATIONAL ASSOCIATION
2A
MAILING ADDRESS
000 Xxxxxx Xxxxx
XXXX Xxxxxxxxx XXXXX XX 00000
------------------------------------ ------------------- -----------------------
AUDIT UPDATE
MULTIPLE SECURED PARTY (if Any)
(Last Name First if a Person)
NAME
2B
MAILING ADDRESS
CITY STATE
----------------------------------- -------------------- -----------------------
------------------------------------------ ------------------------------------
VALIDATION INFORMATION
ASSIGNEE OF SECURED PARTY (if Any)
(Last Name First if a Person)
NAME
3
MAILING ADDRESS
CITY STATE
------------------------------------------- -----------------------------------
-------------------------------------------------------------------------------
Name and Address
of Preparer
4 This FINANCING DOCUMENT covers the following types or items of property
(include description of real property on which located and owner of record
when required). If more space is required, attach additional sheets
81/2" x 11".
All accounts, inventory and equipment of Borrower
-------------------------------------------------------- ----------------------
7 No. of additional
Sheets presented:
5 Proceeds of collateral are covered as provided in
Sections 679.203 and 679.206, F.S.
0
-------------------------------------------------------- -----------------------
6 Filed with: Clerk, Circuit Court
-------------------------------------------------------- -----------------------
8 (Check |_|) |X| All documentary stamp taxes due and
payable or to become due and payable
pursuant to Section 201.22, F.S.
|_| Florida Documentary Stamp Tax is not required.
------------------------------------------------- --------------------------
10 (Check |_| if so)
9 This statement is filed without the debtor's
signature to perfect a security interest in |_| Debtor is a
collateral. (Check |_| if so.) transmitting utility
|_| already subject to a security
interest in another jurisdiction |_| Products of
when it was brought into this state collateral are
or debtor's location changed covered.
to this state.
|_| which is proceeds of the original
collateral described above in which
a security interest was perfected.
|_| as to which the filing has lapsed.
|_| acquired after a change of name,
identity, or corporate structure of the
|_| debtor, or |_| secured party
---------------------------------------------------- ---------------------------
11 SIGNATURE(S) OF DEBTOR(S)
COMPUTER SCIENCE INNOVATIONS
13 Return copy to: INC., a Florida corporation
NAME: Xxxxxx X. Xxxxxxx, Xx., Esq.
ADDRESS: Xxxxxx, Normile, Dettmer, et al. By: /s/ Xxxx Xxxxx
000 Xxxxx Xxxxxx Xxxxxxxxx
CITY: Melbourne By: /s/ Xxxxx X. Xxxxxxxx
----------------------
STATE: FL ZIP CODE 32901
--------------------------------
12 SIGNATURE(S) OF SECURED
PARTY(IES) SUN BANK, NATIONAL
ASSOCIATION
By:
/s/
------------------------------------- -----------------------------------------
[SUN TRUST LETTERHEAD]
August 28, 1996
Xxxxxx Xxxxxxxx
Computer Science Innovation, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Xx. Xxxxxxxx:
It is my pleasure to present this commitment letter and introduce myself as your
company's new primary account officer. I will be working closely with Xxxxxx
Xxxxxx who will remain as secondary account officer to familiarize myself with
your banking relationship.
SunTrust Bank, Central Florida, National Association ("Bank") is pleased to
advise you that it has approved the renewal and increase of your revolving line
of credit in the amount of $500,000 subject to the following conditions:
Borrower: Computer Science Innovations, Inc.
Amount: $500,000
Purpose: To fund short term working capital needs.
Terms: Interest payable monthly, principal due
on demand.
Collateral: First security interest in the company's
accounts receivable, inventory, and
equipment. The borrower may offer direct
assignments on specific government
contracts, at its option.
Borrowing Base: Advances on the line of credit will be
governed by a borrowing base to include
80% of accounts receivable less
than 90 days excluding bonded and
non-assigned/acknowledged government
receivables. The borrowing base will
include 90% of direct assigned and
acknowledged U.S. Government Contracts.
A borrowing base certificate (see
attached) should be completed each
month by the borrower and attached
to the account receivable aging
report.
Guarantor(s): None
Review Date: June 30, 1997
Interest Rate: Fully floating at SunTrust Bank,
Inc.'s Prime Rate. SunTrust Bank's
Prime Rate is currently 8.25%.
Prime Rate is defined as the annual
interest rate announced by SunTrust
Bank, Inc. from time to time, as the
prime rate (which interest rate is
only a bench xxxx, is purely
discretionary and is not necessarily
the best or lower rate charged borrowing
customers of any subsidiary bank of
SunTrust Banks Inc.) Any such change
in prime rate shall be effective at
the beginning business day on which such
change is announced; provided
however, that the interest rate
charged hereunder shall never exceed
the maximum rate allowed, from time to
time, by law.
Fee: $500.00
Financial Covenants: The financial loan covenants are as follows:
Minimum Current Ratio 1.25:1.00
Minimum Working Capital $250,000
Minimum Interest Coverage 1.50:1.00
Minimum Tangible Net Worth $900,000
Maximum Debt/Net Worth 1.0:1.0
The loan covenants will be tested
on a monthly basis.
Special Conditions: 1) The line of credit must be rested for
thirty (30) consecutive days.
2) The company will not be restricted
from distributions, dividends,
intercompany loans, other capital
withdrawals, and management fees
to Ashton Technology Group, Inc.
as long as there is not an
outstanding balance on the line of
credit.
In the event that there is an
outstanding balance, the company will
be restricted from distributions,
dividends, intercompany loans, other
capital withdrawals, and management
fees to Ashton Technology Group, Inc.
without the bank's written consent,
which will not be unreasonably
withheld.
The actual language detailing the
parameters of this covenant will be
drafted by the legal counsel
identified above, and will become a
modification of the existing loan
agreement. A draft of the language
will be made available to you.
3) The Borrower is to maintain
primary deposit relationship with
SunTrust Bank, Central Florida,
National Association.
Reporting Requirements: The borrower agrees to provide the
Bank with the following information:
1) Annual Basis:
Audited CPA financial statements
with attached within 90 days of
year end, or consolidated
financial statements whose
supplemental information includes
CSI, Inc. as a separate entity.
2) Monthly Basis: (within 30 days of
month end)
Compiled Financial Statements
Accounts Receivable Aging Report
Accounts Payable Aging Report
Backlog Report
Contract Status
Legal: Any and all closing costs including
attorney's fees will be borne by the
Borrower.
Lender's Counsel: Xxxxxx X. Xxxxxx
Address: 0000 Xxxx Xxx Xxxxx Xxx.
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Event of Default: A default under this commitment shall
constitute a default under the loan
documents and shall immediately
relieve SunTrust from any obligations
it may have to the commitment or the
loan documents, and shall entitle
the Bank, at its discretion, and
upon giving notice of default to
Borrower, to charge an interest rate
equivalent to the maximum allowed
by law.
Intent of Parties: It is the mutual intent of all
parties to this transaction that the
terms and conditions of this
commitment letter shall survive the
loan closing.
Funding on the Line: The bank has no obligation to fund
the line if there is a covenant
violation or required reports are not
received.
If the above terms and conditions are acceptable to you please sign as indicated
and return the original to my attention.
Please be advised that the Bank's commitment will expire September 12, 1996 and
you should sign, date, and return the original to my attention prior to that
date for it to be effective. The loan should close within ten (10) business days
of acceptance of this commitment.
As your new account officer I plan to provide you with the highest level of
service. I appreciate this opportunity to provide financing and look forward to
working with you and your company. Please do not hesitate to call me at 000-0000
with any questions or requests in regard to your banking relationship.
Sincerely,
/s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Business Banking Officer
BORROWERS:
Computer Science Innovations, Inc.
/s/ Xxxxxx X. Xxxxxxxx Date: 5 Sept. 96
------------------------------------ -----------
Xxxxxx X. Xxxxxxxx, President
/s/ Xxxxxxx X. Xxxxxxxx 9/5/96
-------------------------------------------------------------------------------
Borrowing Base Certificate
-------------------------------------------------------------------------------
Computer Science Innovations, Inc.
Accounts Receivable Month Ended _______
"A" "B"
=============================================== =============== ================
Total Account Receivable less than or equal to
90 days excluding direct assignments: ________
Total Direct Assigned and Acknowledged Account
Receivable less than or equal to 90 days: ________
Less: Bonded Account Receivable ________ ________
Non-assigned Government Receivable ________ ________
Total Eligible Accounts Receivable: ________
Total Eligible Direct Assigned Receivable: ________
Borrowing Limit Percentage: 80% 90%
-------- --------
Borrowing Base (A or B Cannot Exceed $500,000) ________ ________
Less Current Balance of Line: ________ ________
Amount Available: ________ ________
Total Amount Available (A + B): ________
/s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, President Date
LOAN AGREEMENT MODIFICATION
THIS AGREEMENT, made and entered into this 5th day of September, l996,
by and between COMPUTER SCIENCE INNOVATIONS, INC., hereinafter referred to as
"COMPANY", and SUNTRUST BANK, CENTRAL FLORIDA, NA formerly known as SUN BANK,
NATIONAL ASSOCIATION, hereinafter referred to as "BANK".
W I T N E S S E T H:
WHEREAS, on January 8, 1991, COMPANY and BANK entered into a loan
agreement which provided for the COMPANY to borrow from the BANK the sum of ONE
MILLION AND 00/100 ($1,000,000.00) DOLLARS in a revolving line of credit as an
operating line; and
WHEREAS, this revolving line of credit has been modified on several
occasions by the parties; and
WHEREAS, the current revolving line of credit is ONE HUNDRED FIFTY FIVE
THOUSAND AND 00/100 ($155,000.00) DOLLARS and COMPANY has requested BANK to
increase the line of credit from ONE HUNDRED FIFTY FIVE THOUSAND AND 00/100
($155,000.00) DOLLARS to FIVE HUNDRED THOUSAND AND 00/100 ($500,000.00) DOLLARS
and BANK has agreed to such increase upon the terms and conditions set forth
below.
NOW THEREFORE, in consideration of the mutual covenants and promises of
the parties and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, it is hereby agreed as follows:
1. The foregoing recitals are true and incorporated herein by
reference.
2. The revolving line of credit referred to as Loan "A" as
described in the loan agreement of January 8, 1991, as
modified, is hereby increased from ONE HUNDRED FIFTY FIVE
THOUSAND AND 00/100 ($155,000.00) DOLLARS to FIVE HUNDRED
THOUSAND AND 00/100 ($500,000.00) DOLLARS. The interest
rate shall be SunTrust Bank, Inc's, prime rate, fully
floating. SunTrust Bank, Inc's, prime rate is currently 8.25%.
Prime rate is defined as the annual interest rate announced
by SunTrust Bank, Inc, from time to time as the prime rate
(which interest rate is only a benchmark, is purely
discretional and is not necessarily the best or lower rate
charged borrowing customers of any subsidiary bank of
SunTrust Bank, Inc). Any such change in prime rate shall be
effective at the beginning of the business day in which such
change is announced; provided however, that the interest
rate charged hereunder shall never exceed the maximum rate
allowed, from time to time, by law. Monthly payments of
interest only shall be due and payable to BANK by COMPANY.
The principal balance and accrued interest of the line of
credit shall be due on demand.
3. The outstanding principal balance of the line of credit
shall be reduced to ZERO ($0.00) for a period of thirty (30)
consecutive days each year.
4. Advances on the line of credit will be governed by a borrowing
base to include eighty (80%) percent of accounts receivable
less than ninety (90) days, excluding bonded and non
assigned/acknowledged government receivables. The borrowing
base will include ninety (90%) percent of direct
assigned/acknowledged U.S. Government contracts.
5. The financial loan covenants are as follows:
a. Minimum Current Ratio 1.25:1.00
b. Minimum Working Capital $250,000.00
c. -Minimum Interest Coverage 1.50:1.00
d. Minimum Tangible Net Worth $900,000.00
e. Maximum Debt/Net Worth 1.0:1.0
The loan covenants will be tested on a monthly basis.
6. COMPANY acknowledges and agrees that BANK has no obligation to
make any disbursements on the line of credit if any covenant
violations exist or required reports are not received by BANK
as set forth in the loan agreement, as modified.
7. So long as this line of credit is not in default and there is
not an outstanding balance on this line of credit, then
COMPANY will not be restricted from making distributions,
paying dividends, making intercompany loans, making other
capital withdrawals, and paying management fees to Ashton
Technology Group, Inc. In the event that this loan is in
default or there is an outstanding balance on the line of
credit, then COMPANY covenants and agrees that it will not pay
to Ashton Technology Group, Inc., any distributions, dividends
or management fees and it will not make any intercompany loans
or other capital withdrawals to Ashton Technology Group, Inc.,
without BANK's prior written consent which consent shall not
be unreasonably withheld.
8. COMPANY shall maintain its primary deposit relationship with
SunTrust Bank, Central Florida, NA.
9. COMPANY covenants and agrees to provide BANK with the
following financial information:
a. COMPANY will submit year end unqualified audited
financial statements prepared by a CPA acceptable to
the BANK for the COMPANY, within ninety (90) days of
the end of the COMPANY'S fiscal year or consolidated
financial statements whose supplemental information
includes CSI, Inc. as a separate entity.
b. COMPANY shall submit to the BANK on a monthly basis
within thirty (30) days of the end of each month
compiled financial statements, accounts receivable
aging report, accounts payable aging report, back-log
report and contract status report.
All financial statements shall be in form and substance as
reasonably requested by the BANK.
10. SunTrust Bank, Central Florida, NA is substituted for Sun
Bank, National Association, in the loan agreement of January
8, 1991, and any reference in the loan agreement, as modified,
to Sun Bank, National Association, shall be deleted in its
entirety and SunTrust Bank, Central Florida, NA shall be
substituted therefore.
11. For the purpose of giving notice as provided in the loan
agreement, as modified, the addresses COMPANY and BANK are
hereby changed as follows: COMPUTER SCIENCE INNOVATIONS,
INC.,1235 Xxxxx Xxxx, Xxxxxxxxx, XX 00000; and SUNTRUST BANK,
CENTRAL FLORIDA, NA, 000 Xxxxxx Xxxxx, Xxxxxxxxx, XX
00000-0000.
12. COMPANY shall designate as additional loss payee on
appropriate hazard insurance and flood insurance, if
applicable, the BANK as follows:
SUNTRUST BANK, CENTRAL l FLORIDA, NA, its successors and/or
assigns, 000 Xxxxxx Xxxxx, Xxxxxxxxx, XX 00000-0000 Attn:
Commercial Loans.
13. All other terms, provisions and conditions of the loan
agreement of January 8, 1991, as modified, shall remain in
full force and effect and unchanged by this agreement, except
as set forth herein, and the parties hereto covenant and agree
to comply therewith.
14. By the execution of this agreement, COMPANY hereby covenants
and agrees that the loan agreement of January 8, 1991, as
modified, is a valid binding agreement that is in full force
and effect and that COMPANY hereby waives any defenses,
counter-claims or set-offs of whatever nature, to the
enforcement of the loan agreement of January 8, 1991, as
modified.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals this 5th day of September, 1996.
Signed, Sealed & Delivered
In the Presence of:
COMPUTER SCIENCE INNOVATIONS, INC.,
/s/ Xxxx Xxxxx
Print Name: /s/ Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxxxx
XXXXXX X. XXXXXXXX, President
/s/
Print Name:
SUNTRUST BANK, CENTRAL FLORIDA, NA
/s/ Xxxxxx Xxxxxxxx f/k/a SUN BANK, NATIONAL ASSOCIATION
Print Name: Xxxxxx Xxxxxxxx
By: /s/ Xxxx Xxxxx
/s/
Print Name:
Renewal
SUNTRUST REVOLVING LINE OF CREDIT Promissory Note
$500,000.00 September 5, 1996
The undersigned (whether one or more hereinafter called "Maker"),
jointly and severally, promise(s) to pay to the order of SunTrust Bank, Central
Florida, National Association/Fka Sun Bank, National Association (herein called
"Bank") at its offices located at Cocoa Florida, Five Hundred Thousand Dollars
and No/100 Dollars ($500,000.00), together with interest from the date hereof at
the rate hereinafter provided, and applicable fees in the following manner.
Repayment Schedule:
|_| Single Payment Principal Due in Full On:
Interest Payable:
|_| Installment Payment (including interest): In __________ --------------
(No.) (Period)
Installments of $_________________, commencing on
_____________________, 19____, and on the same day
of each successive _____________ thereafter,
together with a FINAL PAYMENT of $______________ due
and payable on _________________________, 19_____.
|_| Installment Payment (plus interest):__________________
(No.)
Principal installments of $___________, plus
interest, commencing on ___________, 19__, and on
the same day of each successive ___________
thereafter, together with a FINAL PAYMENT of
$___________, plus accrued interest due and payable
on ______________, 19__.
|_| Multiple Payment Principal and interest are payable as
follows:__________________________________________
==================================================
|X| ON DEMAND Principal payable ON DEMAND with interest payable
Monthly commencing on October 5, 1996 and each
Month thereafter.
|_| Prepayment Right Bank shall have the absolute and unconditional
right, at its sole discretion, to require Maker to
pay the entire loan balance, along with accrued
unpaid interest at any time after the sixty-first
(61st) month from the note date. If the bank
elects to exercise such right of payment, Bank will
provide Maker ninety (90) days prior written notice
of its intention to demand payment. If Bank does
not exercise such right of payment, the loan balance
outstanding, along with accrued unpaid interest is
due and payable on the one hundred twentieth (120th)
installment.
The Interest Rate Is As Follows:
|_| If checked here, the interest rate provided
herein shall be computed on the basis of a 365 day
year and shall be calculated for the actual number
of days elapsed. If not checked, the interest rate
shall be computed on the basis of a 360 day year
and shall be calculated for the actual number of
days elapsed.
Variable Interest Rate
|_| Not Applicable
|X| Applicable, provided however that the interest rate charged hereunder
shall never exceed the maximum rate allowed, from time to time, by law. If this
loan is for a consumer purpose and is secured by a dwelling, the maximum
interest rate charged will never exceed 18% per annum or the state usury
ceiling, whichever is less. If applicable, the interest rate stated herein
shall, from time to time, automatically increase or decrease so that at all
times it shall be equivalent to (check appropriate box and complete): 0.00% over
the annual interest rate announced by SunTrust Banks of Florida, Inc., from time
to time, as the prime rate (which interest rate is only a bench xxxx, is purely
discretionary and is not necessarily the best of lowest rate charged borrowing
customers of any subsidiary bank of Sun Banks, Inc.). Any such change in prime
rate will increase or decrease your periodic interest payments. Any change in
prime rate shall be effective at the beginning of the business day on which such
change is announced; or, _____% over the
____________________________________________________________
------------------------------------------------------------------------------
FIXED RATE |_| Applicable at _____% per annum, simple interest.
LATE CHARGE FEE |X| Not Applicable.
SERVICE FEE If a payment is late, you may charge 5% of such
payment as a late charge. A payment which is not
received on the due date shall be deemed late.
A service fee of the lesser of
$50.00 or 2 percent of the principal amount of
this loan will be charged. The service fee charge
will not be refunded in the event of prepayment.
ADDITIONAL FEES The Bank may charge various additional fees
for servicing or processing the loan. The name of
the fee shall describe the work performed.
In the event any installment of principal or interest or any part
thereof is not paid when it becomes due, or in the event of any default
thereunder, the principal sum remaining unpaid hereunder, together with all
accrued and past due interest thereon, shall immediately and without notice
become due and payable at the election of the holder at any time thereafter.
Notwithstanding any rate of interest provided herein, the interest rate on
any payment or payments of principal or interest, or any part thereof, which is
not made when due shall, thereafter, be at the maximum rate allowed, from time
to time, by law. Minimum of $10.00 on any single payment loan or $15.00 on any
installment loan will be charged. This note is |X| SECURED |_| UNSECURED
(Notwithstanding the fact that this note is marked 'unsecured', Maker
understands and agrees that any other security Interest the Bank now holds or
may hereafter acquire from the Maker may secure this note).
As security for the payment of this note Maker has pledged or deposited
with Bank and hereby grants to Bank a security interest in the following
property: 1st lien on all accounts receivable, inventory and equipment now owned
and hereafter acquired as further described in Security Agreements dated 9-5-96
and various Government Contracts as further described in Exhibit "B" attached.
(Including all cash, stock and other dividends and all rights to subscribe for
securities incident to, declared, or granted in connection with such property
and including any returned or unearned premiums from any insurance financed
hereunder), which property, together with all additions and substitutions
hereafter pledged or deposited with Bank is called the Collateral. The
Collateral is also pledged as security for all other liabilities (primary,
secondary, direct, contingent, sole, joint, or several), due or to become due or
which may be hereafter contracted or acquired, of each Maker (including each
Maker and any other person) to Bank and for renewals, extensions or
modifications of this note. The surrender of this note, upon payment or
otherwise, shall not affect the right of Bank to retain the Collateral for such
other liabilities. Lender may request periodically as it deems necessary,
complete and current financial statements, balance sheets, profit and loss
statements, and cash flow information for Maker and Cosigner. Maker understands
and agrees that the jury waiver, the additional agreements and provisions on the
reverse side hereof, hereby incorporated by reference, constitute agreements of
the Maker and a part of this note. Maker acknowledges receipt of a completed
copy of this note.
--------------------------------------------------------------------------------
Notice to Cosigner: You are being asked to guarantee this debt. Think carefully
before you do. If the Borrower doesn't pay the debt, you will have to. Be sure
you can afford to pay if you have to, and that you want to accept
responsibility.
You may have to pay up to the full amount of the debt if the borrower does
not pay. You may also have to pay late fees or collection costs, which increase
this amount.
The Bank can collect this debt from you without first trying to collect
from the borrower, The Bank can use the same collection methods against you that
can be used against the borrower, such as suing you, garnishing your wages, etc.
If this debt is ever in default, that fact may become a part of your credit
record.
This notice is not the contract that makes you liable for the debt.
-------------------------------------------------------------------------------
Address:1235 Xxxxx Road COMPUTER SCIENCE INNOVATIONS, Inc.
Xxxxxxxxx, XX 00000-0000 By: /s/ Xxxxxx X. Xxxxxxxx (Seal) 9-5-96
Xxxxxx X. Xxxxxxxx, President Date
By: /s/ Xxxxxxx X. Xxxxxxxx (Seal) 9-5-96
Date
==============================================================================
This space for Bank records only
_______________ _____Renewal______ _______________ ____$500,000.00______
------- ------------
Proceeds Document Stamps Other Charges Note Amount
____________481 _______26_________ __0000000000___ _____________________
Officer Initials # Note Number Account Number Service Fee
If the variable interest rate is not applicable and if this note is
payable on demand, Bank reserves, and is hereby granted the right, to adjust the
interest rate from time to time by furnishing Maker with any written notice of
such adjusted rate, provided however, that no such adjusted rate shall exceed
the maximum rate allowed, from time to time, by law.
Additions to, reductions or exchanges of, or substitutions for the
Collateral, payments on account of this note or increases of the same or other
loans made partially or wholly upon the Collateral, may from time to time, be
made without affecting the provisions of this note.
If the Bank deems itself insecure, or upon the happening of any of the
following events, each of which shall constitute a default hereunder, all
liabilities of each Maker to Bank shall thereupon or thereafter, at the option
of the Bank, without notice or demand, become due and payable: (a) failure of
any Obligor (which term shall mean and include each Maker, endorser, surety and
guarantor of this note) to perform any agreement hereunder to pay interest
hereon when due or requested or demanded or to pay any other liability
whatsoever to Bank when due; (b) the death of any Obligor; (c) the filing of any
petition under the Bankruptcy Code, or any similar federal state statute, by or
against any Obligor; (d) an application for the appointment of a receiver or the
making of a general assignment for the benefit of creditors by, or the
insolvency of any Obligor; (e) the entry of a judgment against any Obligor; (f)
the issuing of any writ of attachment or writ of garnishment, or the filing of
any lien, against the property of any Obligor; (g) the taking of possession of
any substantial part of the property of any Obligor at the instance of any
governmental authority; (h) the dissolution, merger, consolidation, or
reorganization of any Obligor; (i) the assignment of any Maker of any equity in
any of the Collateral without the written consent of Bank.
Bank is hereby given a lien upon and a security interest in all
property of each Maker now or at any time hereafter in the possession of bank in
any capacity whatsoever, including but not limited to any balance or share of
any deposit, trust, or agent account as security for the payment of this note,
and a similar lien upon the security interest in all such property of each maker
as security for the payment of all other liabilities of each Maker to Bank
including liabilities of each Maker and any other person); and Bank shall have
the same rights as to such property as it has with respect to the Collateral.
If Bank deems itself insecure or upon the occurrence of any default
hereunder Bank shall have the remedies of a secured party under the Uniform
Commercial Code and, without limiting the generality of the foregoing, Bank
shall have the right, immediately and without further action by it, to set off
against this note all money owed by Bank in any capacity to each or any Obligor,
whether or not due, and also to set off against all other liabilities of each
maker to bank all money owed by Bank in any capacity to each or any Maker; and
Bank shall be deemed to have exercised such right of set-off and to have made a
charge against any such money immediately upon the occurrence of such default
even though such a charge is made or entered on the books of the bank subsequent
thereto. Unless the Collateral is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market, the Bank will
give Maker reasonable notice of the time and place of any public sale thereof or
of the time after which any private sale or any other intended disposition
thereof is to made. The requirement of reasonable notice shall be met if such
notice is mailed, postage prepaid, to any Maker at the address given below or at
any other address shown on the records of the Bank, at least five days before
the time of the sale or disposition. Sale at a wholesale dealers' auction is a
commercially reasonable disposition. Upon disposition of any Collateral after
the occurrence of any default hereunder, Maker shall be and remain liable for
any deficiency; and Bank shall account to Maker for any surplus, but Bank shall
have the right to apply all or any part of such surplus (or to hold the same as
a reason against) any and all other liability of each or any Maker to Bank. The
obligors, jointly and severally, promise and agree to pay all costs and expenses
of collection and reasonable attorney's fee, including costs expenses and
reasonable attorneys' fees on appeal, if collected by legal proceedings or
through an attorney at law, Maker hereby waives any right to a trial by jury in
any civil action arising out of, or based upon, this note or the Collateral.
Bank shall exercise reasonable care in the custody and preservation of
the Collateral to the extent required by applicable statute, and shall be deemed
to have exercised reasonable care if it takes such action for that purpose as
Maker shall reasonably request in writing, but no omission to do any act not
requested by maker shall be deemed a failure to exercise reasonable care, and no
omission to comply with any request of Maker shall of itself be deemed a failure
to exercise reasonable care. Bank shall not be bound to take any steps necessary
to preserve any rights in the Collateral against prior parties and maker shall
take all necessary steps for such purposes. Bank or its nominee need not collect
interest on or principal of any Collateral or give any notice with respect to
it.
If the Collateral shall at any time become unsatisfactory to Bank,
Maker shall within one day after demand pledge and deposit with Bank as part of
the Collateral additional property which is satisfactory to Bank.
Bank shall have the right, which may be exercised at any time whether
or not this note is due, to notify the Obligors on any Collateral to make
payment to bank on any amounts due to become due thereon. In the event of any
default hereunder, Bank shall thereafter have, but not be limited to, the
following rights; (i) to pledge or transfer this note and the Collateral and
bank shall thereupon be relieved of all duties and responsibilities hereunder
and relieved from any and all liability with respect to any Collateral so
pledged or transferred, and any pledgee or transferee shall for all purposes
stand in the place of the Bank hereunder and have all the rights of the bank
hereunder, (ii) transfer the whole or any part of the Collateral into the name
of itself or its nominee, (iii) to vote the Collateral; (iv) to demand, xxx for,
collect, or make any compromise or settlement it deems desirable with reference
to the Collateral; and (v) to take control of any proceeds of Collateral.
I HEREBY CONSENT TO THE ATTACHMENT OR GARNISHMENT OF MY EARNINGS..
No delay or omission on the part of Bank in exercising any right
hereunder shall operate as a waiver of such right or any other right under this
note, Presentment, demand, protest, notice of dishonor, and extension of time
without notice are hereby waived by each and every Obligor. Any notice to Maker
shall be sufficiently served for all purposes if placed in the mail, postage
prepaid, addressed to or left upon the premises at, the address shown below or
any other address shown on the Bank's records.
I waive any and all privilege and rights which I may have under Chapter
47, Florida Statutes, relating to venue, as it now exists or may hereafter be
amended: I agree that any action shall be brought in the County in which the
Bank's business office is located as designated above or at which the loan was
closed.
JURY WAIVER: MAKER AND BANK HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY,
AND IRREVOCABLY WAIVE THE RIGHT OF EITHER OF THEM MAY HAVE TO A TRIAL BY
JURY IN RESPECT TO ANY LITIGATION, WHETHER IN CONTRACT OR TORT, AT LAW OR
IN EQUITY, BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OTHER DOCUMENT OR INSTRUMENTS CONTEMPLATED TO BE EXECUTED
IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PART HERETO. THIS PROVISION IS
A MATERIAL INDUCEMENT FOR BANK ENTERING INTO THIS AGREEMENT. FURTHER, MAKER
HEREBY CERTIFIES THAT NOR REPRESENTATIVE OR AGENT OF BANK NOR THE BANK'S COUNSEL
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK WOULD NOT, IN ANY EVENT OF
SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
NO REPRESENTATIVE OR AGENT OF THE BAN NOR BANK'S COUNSEL HAS THE AUTHORITY TO
WAIVE, CONDITION, OR MODIFY THIS PROVISION.
-------------------------------------------------------------------------------
GUARANTY
-------------------------------------------------------------------------------
In addition to the liability as endorsers, which the undersigned
hereby assumes, for value received and intending to be legally bound, the
undersigned (and if more than one, each of them jointly and severally) (a)
hereby become surety to the payee of the within note, it successors, endorsees
and assigns, for the payment of the within note and hereby unconditionally
guarantee the payment of the within note and all extensions or renewals thereof
and all sums payable under or by virtue thereof including, without limitation,
all amounts of principal and interest and all expenses (including attorney's
fees) incurred in the collection thereof, the enforcement of rights thereunder
or with respect to any security therefor and the enforcement hereof, and waive
presentment, demand, notice of dishonor, protest and all other notices
whatsoever; and (b) consent and agree (i) that all or any of the Collateral may
be exchanged, released, surrendered or sold from time to time, (ii) that the
payment of the note, or any of the liabilities of the Maker thereof may be
extended or said notice renewed any number of times and for any period (whether
or not longer than the original period of said note), (iii) that the holder of
said note may grant any releases, compromises or indulgences with respect to
said note or any extensions or renewals thereof or any security therefor or to
any party liable thereunder or hereunder (including but not limited to failure
or refusal to exercise one or more of the rights or remedies provided by said
note), and (iv) that any of the provisions of said note may be modified; all
without notice to or consent of and without affecting the liability of the
undersigned as endorsers and sureties, and further consent and agree that any of
the undersigned may be sued by the holder hereof with or without joining any of
the other endorsers or makers of said note and without first or
contemporaneously suing any such other persons, or otherwise seeking or
proceeding to collect from them or any of them, and without first or
contemporaneously undertaking to enforce any rights with respect to any
security.
--------------------------------------------------------------------------------
The undersigned acknowledges having received and read the NOTICE TO CO-XXXXXX
appearing on the reverse side hereof.
-------------------------------------------------------------------------------
______________________________(Date) ________________________________(Seal)
______________________________(Date) ________________________________(Seal)
______________________________(Date) ________________________________(Seal)
Florida Documentary Stamp Tax Required by law in the amount of $________________
Has Been Paid or Will be Paid Directly to The Department of Revenue. Certificate
of Registration #______________________
-------------------------------------------------------------------------------
SUPPLEMENT TO COMMERCIAL NOTE
-------------------------------------------------------------------------------
That certain Commercial Note(s) dated September 5, 1996, in the amount
of $500,000.00 herewith is supplemented by adding the following:
The actual principal balance due the bank at any given date will be
determined not by the face amount of the note or notes referred to herein, but
by the amount actually advanced by the Bank to Borrower, plus interest thereon,
less any sums collected by Bank in payment of interest and in reduction of
principal of the loan or loans presented by such note or notes.
The Borrower will promptly pay the full amount of all taxes of every
nature and kind, including, but without limitation, documentary stamp taxes and
intangible personal property taxes, that may be levied, assessed or payable
upon, because of, or in respect of this agreement, the promissory note or notes
executed or to be executed in connection herewith, and shall indemnify the Bank
and save and keep Bank free and harmless from the payment of the same and all
costs and penalties connected therewith; provided, however, that the terms of
this paragraph shall not be construed as imposing upon the Borrower any
obligation to pay any income tax payable by Bank on account of any taxable
income received by it on account of this agreement.
DATED THIS 5TH DAY OF SEPTEMBER, 1996.
Signed, sealed and delivered in the presence of:
WITNESS: Computer Science Innovations, Inc.
By: /s/ Xxxx Xxxxx By:/s/ Xxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxxx, President
By:Xxxxxxx X. Xxxxxxxx
WITNESSES: SunTrust Bank, Central Florida,
National Association, fka Sun
Bank National Association
By: _______________________ By:/s/ Xxxx Xxxxx
Xxxx Xxxxx
Business Banking Officer
SUNTRUST Security Agreement
(Equipment and Consumer Goods)
---------------------------
Contract No.
Computer Science Innovations, Inc. (and if
(Name(s) of Borrower(s))
more than one, each of them jointly and severally, hereinafter called"Borrower",
of 000 Xxxxx Xxxx
(No. and Street)
Melbourne Brevard Florida , for value received and
(City) (County) (State)
intending to be legally bound, hereby grants to SunTrust Bank, Central Florida,
National Association fka Sun Bank, National Association, Cocoa, Florida,
(Name of Secured Party)
hereinafter called "Secured Party", a security interest in the following
property
------- ------ ------------ -------------- ------------ -------------- ---------
Manufacturer
New or Year or Make Description of Model Number Manufacturer's
Used Model (Trade Name) Collateral or Series Serial No.
------- ------ ------------ -------------- ------------ -------------- ---------
------- ------ ------------ -------------- ------------ -------------- ---------
------- ------ ------------ -------------- ------------ -------------- ---------
------- ------ ------------ -------------- ------------ -------------- ---------
------- ------ ------------ -------------- ------------ -------------- ---------
------- ------ ------------ -------------- ------------ -------------- ---------
------- ------ ------------ -------------- ------------ -------------- ---------
------- ------ ------------ -------------- ------------ -------------- ---------
------- ------ ------------ -------------- ------------ -------------- ---------
------- ------ ------------ -------------- ------------ -------------- ---------
1st lien on all accounts receivable, inventory, and equipment: now
owned and hereafter acquired as further described in Exhibit "A"
attached, and various Government Contracts as further described in
Exhibit "B" attached.
together with all increases, parts, fittings, accessories, equipment, and
special tools now or hereafter affixed to any or any part thereof or sued in
connection with any thereof, and all replacements of all or any part thereof
plus any returned or unearned premiums from any insurance financed by the
Secured Party in conjunction with this transaction (all of which is hereinafter
called "Collateral"), to secure the payment of a promissory note or notes
executed by Borrower in the amount of:
Five Hundred Thousand Dollars and No/100 - - - - - - - - - - - - - Dollars
($500,000.00), of even date herewith, and any and all extensions, modifications
or renewals thereof, and also to secure the performance by Borrower of the
agreements hereinafter set forth, and all other liabilities or obligations
(primary, secondary, direct, contingent, sole, joint or several) due, or to
become due or which may be hereafter contracted or acquired of each Borrower to
Secured Party (the foregoing hereinafter being called the "Liabilities").
Borrower hereby warrants and agrees that
1. (A) Borrower is the owner of he Collateral clear of all liens and
security interests except the security interest granted hereby; (b) Borrower has
the right and power to make this Agreement; and (c) The Collateral is used or
acquired for use primarily for the purpose checked: |_| personal, family or
household purposes; |_| farm purposes; or |X| business purposes; and (d) if the
Collateral consists of "household goods" as defined in 12 C.F.R. 227.12(d) or if
otherwise checked here |_| then the Collateral is being acquired with the
proceeds of the loan provided for in or secured by this Agreement, and the
proceeds will be used for no other purpose, ad Borrower hereby authorizes
Secured Party to disburse the proceeds or any part thereof directly to the
seller of the Collateral or to the insurance agent or broker, or both, as shown
on Secured Party's records.
2. (a) The Collateral will be kept at
(No. and Street) (City) (County) (State)
or if left blank, at the address shown at the beginning of this Agreement;
Borrower will promptly notify Secured Party of any change in the location of the
Collateral within said state; and Borrower will not remove the Collateral from
said state without the written consent of Secured Party. (b) If the Collateral
is used or acquired for use primarily for personal, family or household
purposes, or for farm purposes, Borrower's residence in Florida is that shown at
the beginning of this Agreement and Borrower will immediately notify Secured
Party of any change in the location of said residence.
3. (a) If the Collateral is acquired or used primarily for
business use and is of a type normally used in more than one state, whether or
not so used, and Borrower has a place of business in more than one state, the
chief place of business of Borrower is _________________________________________
(No. and Street) or, if left blank, is that
______________________ (City) (County) (State)
shown at the beginning of this Agreement; and Borrower will immediately notify
Secured Party in writing of any change in Borrower's chief place of business;
and (b) If certificates of title are issued or outstanding with respect to any
of the Collateral, Borrower will promptly cause the interest of Secured Party to
be properly noted thereon and deliver such certificates of title to Secured
Party.
4. Borrower will defend the Collateral against the claims and
demands of all persons, other than Secured Party, at any time claiming the
same or any interest therein.
5. No financing Statement covering any Collateral or any proceeds
thereof is on file in any public office; Borrower authorizes Secured Party to
file, in jurisdictions where this authorization will be given effect, a
Financing Statement signed only by the Secured Party describing the Collateral
in the same manner as it is described herein; Borrower will from time to time at
the request of Secured Party, execute one or more Financing Statements and such
other documents (and pay the cost of filing or recording the same in all public
offices deemed necessary or desirable by the Secured Party) and do such other
acts and things, all as the Secured Party may request to establish and maintain
an enforceable first priority security interest in the Collateral (free of all
other liens and claims whatsoever) to secure the payment of the Liabilities.
6. Borrower will not (a) permit any liens or security interest other
than Secured Party's security interest, to attach to any of the Collateral; (b)
permit any of the Collateral to be levied ________ under legal process; (c)
sell, transfer, lease, dismantle, alter, modify, or otherwise dispose of any of
the Collateral or any interest therein, or offer so to do, without the prior
written consent of Secured Party; (d) permit anything to be done that may impair
the value of any of the Collateral or the security intended to be afforded by
this Agreement; (e) permit the Collateral to be or become a fixture (and it is
expressly covenanted, warranted and agreed, that the Collateral, and every part
thereof, whether affixed to any realty or not, shall be and remain personal
property), or to become an accession to other goods or property, or (f) locate
Collateral on any property not owned or controlled by Borrower, without the
prior written consent of the Secured Party.
7. Borrower will (a) at all times keep the Collateral insured in
amounts not less than the full insurable value thereof, against loss, damage,
theft, and such other risks as Secured Party may require in such companies,
under such policies, in such form and for such periods, as shall be satisfactory
to Secured Party, and each such policy shall provide, by New York Standard or
Union Standard endorsement, that loss thereunder and proceeds payable thereunder
shall be payable to Secured Party as its interest may appear (and Secured Party
may determine) and each such policy shall provide for a minimum of 10 days
written cancellation notice to Secured Party; and each such policy shall, if
Secured Party so requests, be deposited with Secured Party and Secured Party may
act as attorney for Borrower in obtaining, adjusting, settling, and canceling
such insurance and endorsing any drafts; (b) at all times keep the Collateral
free from any adverse lien, security interest, or encumbrance and in good order
and repair and will not waste or destroy the Collateral or any part thereof, (c)
Borrower shall be obligated to pay for the placement of any Vendor Single
Interest Insurance ("VSI"), or any other similar type of insurance, should the
Borrower fail to adequately protect the Collateral. Should VSI or any other
insurance be placed by the Secured Party, then any Earned and/or Unearned
Insurance Premium Refund will be credited to Borrower by the Secured Party.
Should the Secured Party receive any compensation for Administrative or
Experience Rated Refunds due to the placement and termination of such insurance,
such compensation and/or refund shall be paid to Secured Party. Any interest
earned during the period of placement of such insurance may be retained by
Secured Party.
8. (a) Borrower will not use the Collateral or permit the same to be
used in violation of any statute, law or ordinance; and Secured Party may
examine and inspect the Collateral at any time, wherever located, (b) Borrower
will pay promptly when due all taxes and assessments on the Collateral or for
its use of operation or upon this Agreement or upon any note or notes or other
writing evidencing the Liabilities, or any of them.
9. At its options, Secured Party may discharge taxes, liens or security
interest or other encumbrances at any time levied or placed on the Collateral,
may pay for insurance on the Collateral, and may pay for the maintenance and
preservation of the Collateral. Borrower agrees to reimburse Secured Party on
demand for any payment made, or any expense incurred, by Secured Party, pursuant
to the foregoing authorization, together with interest thereon at the highest
lawful rate and each such payment and interest thereon shall be secured by this
Security Agreement. Until default, Borrower may have possession of Collateral
and use it in any lawful manner not inconsistent with this Agreement and not
inconsistent with any policy of insurance thereon.
10. Borrower shall be in default under this Agreement upon the
happening of any of the following events or conditions: (a) failure or omission
to pay when due any Liability (or any installment thereof or interest thereon),
or default in the payment or performance of any obligation, covenant, agreement,
or Liability contained or referred to therein; (b) any warranty, representation,
or statement made or furnished to Secured Party by or on behalf of any Borrower
proves to have been false in any material respect when made or furnished; (c)
loss, theft, substantial damage, destruction, sale, or encumbrance to or of any
of the Collateral, or the making of any levy, seizure, or attachment thereof or
thereon; (d) any Obligor (which term as used herein, shall mean each Borrower
and each other Party primarily or secondarily or contingently liable on any of
the Liabilities) becomes insolvent or unable to pay debts as they mature or
makes an assignment for the benefit of creditors, or any proceeding (including
any proceeding in bankruptcy) is instituted by or against any Obligor alleging
that such Obligor is insolvent or unable to pay debts as they mature; (e) entry
of any judgment against any Obligor; (f) death of an Obligor who is a natural
person, or of any partner of any Obligor which is a partnership; (g)
dissolution, merger or consolidation, or transfer of a substantial part of the
property of any Obligor which is a corporation or partnership; (h) appointment
of a receiver for the Collateral or any part thereof or for any property in
which any Borrower has an interest; (i) the Collateral is used by anyone to
transport or store goods the possession, transportation or use of which is
illegal.
11. Upon the occurrence of any such default or at any time thereafter,
or whenever the Secured Party feels insecure for any reason whatsoever, Secured
Party may, at its option, declare all Liabilities secured hereby, or any of them
(notwithstanding any provisions thereof), immediately due and payable without
demand or notice of any kind and the same thereupon shall immediately become and
be due and payable without demand or notice (but with such adjustments, if any,
with respect to interest or other charges as may be provided for in the
promissory note or other writing evidencing such Liability), and Secured Party
shall have and may exercise from time to time any and all rights and remedies of
a Secured Party under the Uniform Commercial Code and any and all rights and
remedies available to it under any other applicable law; and upon request or
demand of Secured Party, Borrower shall, at its expense, assemble the Collateral
and make it available to the Secured Party at a convenient place acceptable to
Secured Party; and Borrower shall promptly pay all costs of Secured Party of
collection of any and all liabilities, and enforcement of any rights hereunder,
including reasonable attorneys' fees and legal expenses. Any excess or surplus
of proceeds of any disposition of any of the Collateral may be applied by
Secured Party toward payment of such of the Liabilities, without marshaling of
assets and in such order of application, as Secured Party may from time to time
elect.
12. No waiver by Secured Party of any default shall operate as a waiver
of any other default or of the same default on a future occasion. No delay or
omission on the part of Secured Party in exercising any right or remedy shall
operate as a waiver thereof, and no single or partial exercise by Secured Party
of any right or remedy shall preclude any other or further exercise thereof or
the exercise of any other right or remedy. Time is of the essence of this
Agreement. The provisions of this Agreement are cumulative and in addition to
the provisions of any note secured by this Agreement, and Secured Party shall
have all the benefits, rights and remedies of and under any note secured hereby.
If more than one party shall execute this Agreement, the term "Borrower" shall
mean all parties signing this Agreement and each of them, and all such parties
shall be jointly and severally obligated hereunder provided, however, if one of
the parties signing this Agreement has not executed the promissory note or notes
referred to herein, said party shall have no personal liability under, or in
conjunction with, said promissory note or notes. The singular pronoun, when used
herein, shall include the plural and the neuter shall include masculine and
feminine. If this Agreement is not dated when executed by the Borrower, the
Secured Party is authorized without notice to the Borrower, to date this
Agreement. All rights of Secured Party hereunder shall inure to the benefit of
its successors and assigns; and all Liabilities of Borrower shall bind the
heirs, executors, administrators, successors and assigns of each Borrower.
13. This Agreement has been delivered in the State of Florida and shall
be construed in accordance with laws of Florida. Wherever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
14. BORROWER AND SECURED PARTY HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT TO ANY LITIGATION, WHETHER IN CONTRACT OR TORT, AT LAW
OR IN EQUITY, BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OTHER DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR SECURED PARTY ENTERING INTO THIS AGREEMENT. FURTHER,
BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF SECURED PARTY, NOR
THE SECURED PARTY'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SECURED PARTY WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS
WAIVER OF RIGHT TO JURY TRIAL PROVISION. NO REPRESENTATIVE OR AGENT OF THE
SECURED PARTY, NOR SECURED PARTY'S COUNSEL HAS THE AUTHORITY TO WAIVE,
CONDITION, OR MODIFY THIS PROVISION.
In Witness Whereof, this Agreement has been duly executed as of the
5th day of September , 19 96 .
-------------------- ------------------ --------------
Computer Science Innovations, Inc.
Signed, sealed and deliveed By: /s/ Xxxxxx Xxxxxxxx (Seal)
in the presence of Xxxxxx X. Xxxxxxxx, President
/s/ Xxxx Xxxxx
By: /s/ Xxxxxxx X. Xxxxxxxx
(Seal)
Borrower
By: ____________________ (Seal)
---------------------------
Contract No.
SECURITY AGREEMENT
(INVENTORY AND ACCOUNTS)
THIS ASSIGNMENT AND AGREEMENT made September 5, 1996, by and between SunTrust
Bank, Central Florida, National Association fka Sun Bank, National Association
(Name of Secured Party)
herein called "Bank", and
Computer Science Innovations, Inc.
(Name(s) of Borrower(s))
of 000 Xxxxx Xxxx Xxxxxxxxx Brevard Florida
(Name and Street) (City) (County) (State)
herein called "Borrower".
In consideration of loans or advances made or to be made by Bank to
Borrower, and for other value received by Borrower, the parties hereto,
intending to be legally bound, agree as follows:
1. As used herein: (a) "Account" means an immediate right to payment
for goods sold and for goods leased and for services rendered, or any of them,
and includes a right to payment under a contract whether or not it has been
earned by performance. "Qualified Account" means an Account which has been due
less than ________________________ days; (b) "Inventory" means goods held for
sale or lease or being processed for sale or lease in Borrower's business, as
now or hereafter conducted, including all materials, goods and work in process,
finished goods, and other tangible property now owned or hereafter acquired and
held for sale or lease or furnished or to be furnished under contracts of
service or used or consumed in Borrower's business; (c) "Goods" means all
articles of tangible personal property, sold, supplied, or otherwise disposed
of, represented by an Account; (d) "Purchaser" includes the buyer of goods from
Borrower, the customer for which services have been rendered or materials
furnished by Borrower, or the party with whom Borrower has contracted; (e)
"Borrower" includes all corporations and all individuals executing this
agreement as parties hereto, and all members of a partnership when Borrower is a
partnership, each of whom shall be jointly and severally liable individually and
as partners hereunder; (f) "security interest" means an interest in property
which secures payment or performance of an obligation; (g) "liability" or
"liabilities" includes all liabilities (primary, secondary, direct, contingent,
sole, joint or several) due or to become due or that may be hereafter contracted
or acquired, of Borrower (including any Borrower and any other person) to Bank.
2. Bank will from time to time hereafter lend Borrower, on the security
of Accounts and Inventory, or any of them, acceptable to Bank, such amounts as
Bank may determine from time to time, at such rates of interest and payable and
on such terms as Bank may from time to time specify or require, and Bank may
require that such loans, or any of them, be evidenced by one or more promissory
notes of the Borrower in form satisfactory to Bank. For the convenience of the
Borrower, the Bank may make loans and advances to the Borrower under any
promissory note the principal face amount of which is in excess of the actual
unpaid principal balance at such time.
3. As security for the payment of all loans and advances now or in the
future made hereunder and for all Borrower's liabilities, including any
extensions, renewals, or changes in form of any thereof, Borrower hereby assigns
to Bank and grants to Bank a security interest in: (a) all Accounts and
Inventory owned by Borrower at the date of this agreement; (b) all Accounts and
Inventory at any time hereafter acquired by Borrower; and (c) all proceeds of
all such Accounts and inventory.
4. So long as any liability to Bank is outstanding, Borrower will not
without the prior written consent of Bank borrower form anyone except Bank on
the security of, or pledge or grant any security interest in, any Account or any
of Borrower's inventory to anyone except Bank, or permit any lien or encumbrance
to attach to any of the foregoing, or any levy to be made thereon, or any
financing statement (except Bank's financing statement) to be on file with
respect thereto.
5. Borrower represents and warrants that the location where it keeps
the bulk of its inventory is at the address specified in the preamble to this
agreement, unless a different address has been specified in the following space:
(No. and Street) ______________ (City) (County) (State)
and that the office where it keeps its records concerning all of its Accounts is
at the address specified in the preamble to this agreement, unless a different
address has been specified in the following space:
(No. and Street) ______________ (City) (County) (State)
Borrower will immediately notify Bank in writing of any change in the location
of the place of business where the bulk of its inventory is located or any
change in the location of the place of business where the records concerning its
Accounts are kept.
6. Borrower will (a) maintain Accounts and Inventory in such quantities
that at all times ____________% of the face amount of its Qualified Accounts,
less allowable discount, plus ________________% of the cost or wholesale market
value, whichever is lower, of its Inventory, plus 100% of the balance in the
Cash Collateral Account hereinafter referred to, or such other percentages
thereof as may from time to time be fixed by Bank upon notice to Borrower, shall
be at least equal to Borrower's liabilities to Bank; and Borrower will pay to
Bank, in reduction of its liabilities, such sums as may be necessary from time
to time to maintain such ratio; (b) collect its Accounts and sell its Inventory
only in the ordinary course of business; (c) furnish Bank at the time of each
borrowing, and at such other intervals as Bank may prescribe, with a Borrower's
Certificate (in such form as Bank may from time to time specify or require)
showing the aggregate face amount of its Qualified Accounts and the aggregate
cost and wholesale market value of its Inventory; (d) keep accurate and compete
records of its Accounts and Inventory; (e) pay and discharge when due all taxes,
levies and other charges on its Inventory; (f) keep its Inventory insured in
amounts not less than the full insurable value thereof, for the benefit of Bank
(to whom loss shall be payable by New York Standard or Union Standard
endorsements), in such companies and against such risks as may be satisfactory
to or required by Bank; pay the cost of all such insurance; and deliver
certificates evidencing such insurance to Bank; and Borrower assigns to Bank all
right to receive proceeds of such insurance.
7. Unless Bank notifies Borrower in writing that it dispenses with any
one or more of the following requirements, Borrower will (a) give Bank
assignments in form acceptable to Bank, of specific Accounts or groups of
Accounts, and of moneys due and to become due under specific contracts; (b)
furnish to Bank a copy of the invoice applicable to each Account assigned to
Bank or arising out of a contract, bearing a statement that such Account has
been assigned to Bank and such additional statements as Bank may require; (c)
furnish Bank at the time of each borrowing, and at such other intervals as Bank
may prescribe or require, with a schedule (in such form as Bank may from time to
time specify or require) of Borrower's Inventory and Qualified Accounts which
describe the same, or such thereof as Bank may require, together with such other
information relating thereto as the Bank may specify or require; (d) make no
change in any assigned Accounts or in any Account arising out of a contract
assigned to Bank, information relating thereto as the Bank may specify or
require; (d) make no change in any assigned Accounts or in any Account arising
out of a contract assigned to Bank, and make no material change in the terms of
any such contract; (e) furnish to Bank all information received by Borrower
affecting the financial standing of any Purchaser whose Account has been
assigned to Bank; (f) receive as the sole property of Bank and hold as trustees
for Bank all moneys, checks, notes, drafts, and other property (herein called
"items of payment") representing the proceeds of any Account or Inventory in
which Bank has a security interest, which comes into the possession of Borrower;
and deposit all such items of payment immediately in the exact form received in
a special account of Borrower in Bank entitled "Cash Collateral Account" in
which account Bank shall have a security interest to secure all Borrower's
liabilities and with respect to which account Bank alone shall have power of
withdrawal; (g) pay Bank the amount loaned against any Account assigned to Bank
where the goods are returned by the Purchaser, or where the contract is
cancelled or terminated; (h) immediately notify Bank if any of its contracts
arise out of contracts with the United States or any department, agency, or
instrumentality thereof, and execute any instruments and take any steps required
by Bank in order that all moneys due and to become due under any such contract
shall be assigned to Bank and notice thereof given to the Government under the
Federal Assignment of Claims Act; (i) deliver to Bank with appropriate
endorsement or assignment, as Bank may require, any instrument or chattel paper
representing an Account. Any permission granted to Borrower by Bank to omit any
of the requirements of this paragraph 7 may be revoked by Bank at any time.
8. Borrower will promptly, if requested by Bank: (a) xxxx its records
evidencing its Accounts in a manner satisfactory to Bank so as to show the same
have been assigned to Bank; (b) pay Bank the unpaid portion of any assigned
Account if Bank shall at any time reject the Account as unsatisfactory, which
right Bank shall have and may exercise at any time and for any reason
whatsoever, and until such payment is made by Borrower, Bank may retain any such
Account as security and may charge any deposit account of Borrower with any such
amounts; (c) join with Bank in executing a financing statement, notice,
affidavit, or similar instrument in form satisfactory to Bank, and such other
instruments as Bank may from time to time request; and pay the cost of filing
the same in any public office deemed advisable by Bank; and (d) give Bank such
financial statements, reports, certificates, lists of Purchasers (showing names,
addresses, and amounts owing), and other date concerning its Accounts,
contracts, collections, inventory and other matters as Bank may from time to
time specify; and permit Bank or its nominee to examine all of Borrower's
records relating thereto at any time, and to make extracts therefrom, and to
inspect and check Borrowers Inventory.
9. Borrower warrants (a) in connection with each Account covered by
this agreement: (i) it constitutes a Qualified Account as defined herein is not
evidenced by a judgment, an instrument or chattel paper (except such judgment as
has been assigned to Bank, and except such instrument or chattel paper as has
been indorsed and delivered to Bank), and represents a bona fide transaction and
Borrower has possession of (and will promptly deliver to Bank upon Bank's
request) or has delivered to Bank shipping or delivery receipts evidencing
shipment or delivery of the goods and, if representing services, the services,
have been fully performed; (ii) the amount shown on Borrower's books and on any
invoice or statement delivered to Bank is owing to Borrower; (iii) the title of
Borrower to the Account and, except as against the Purchaser, to any goods is
absolute; (iv) the Account has not been transferred to any other person, and no
person, except Borrower, has any claim thereto, or, with the sole exception of
Purchaser, to the goods; (v) no partial payment has been made by anyone; and
(vi) no set-off or counterclaim to such Account exists and no agreement has been
made with any person under which any deduction or discount may be claimed,
except regular discounts allowed by Borrower for prompt payments; (vii) it
arises under an existing binding written contract between Borrower and
Purchaser; and (b) in connection with its inventory; that Borrower is and will
be the absolute owner thereof, free and clear of all encumbrances and security
interests other than the Bank's security interest.
10. Borrower shall pay Bank such interest as may be specified
in any note evidencing a loan or advance made hereunder and such service charges
as may be agreed upon and shall pay to Bank all costs and expenses, including
attorneys' fees, incurred by it in the preservation or collection of collateral.
Changes in interest rate and service charges may be made by Bank from time to
time, notwithstanding the interest rate specified in any note evidencing a loan
or advance hereunder, upon notice to Borrower and shall become effective on the
date therein specified.
11. Bank shall have the right at any time and from time to
time, without notice, to: (a) apply any part or all of the moneys in the Cash
Collateral Account representing collected items against any liability of
borrower to Bank, and Bank shall upon demand by Borrower make such application
against such liability or liabilities as Bank may itself select; (b) release to
Borrower such part of the moneys in the Cash Collateral Account as Bank may
elect; (c) charge to Borrower's deposit account any item of payment credited to
the Cash Collateral Account which is dishonored by the drawee or maker thereof;
(d) indorse all items of payment which may come into its hands payable to
Borrower; (e) notify Purchasers that Accounts have been assigned to Bank,
forward invoices to Purchasers, directing them to make payments to Bank, collect
all Accounts in its or Borrower's name, and take control of any cash or non-cash
proceeds of Accounts and of any inventory; (f) compromise, extend, or renew any
Account or deal with the same as it may deem advisable; (g) make exchanges,
substitutions or surrenders of collateral; (h) insure inventory to its
satisfaction if Borrower fails to do so and pay for the same, and pay, for the
account of Borrower, any taxes, levies, or other charges affecting Borrower's
Inventory or upon or on account of this Security Agreement or any liability or
any writing evidencing any liability, which Borrower fails to pay, and any such
payment shall constitute a liability of Borrower.
12. Until default, Borrower may use its Inventory in any
lawful manner not inconsistent with this agreement and with the terms of
insurance thereon; may sell its Inventory in the ordinary course of business;
and may use and consume any raw materials or supplies, the use and consumption
of which is necessary in order to carry on Borrower's business.
13. If at any time any warranty, representation, certificate
or statement of Borrower is not true, or if any liability or any part or
installment thereof or interest thereon is not paid when due, or if any event of
default as defined in any note or other evidence of liability held by Bank
should occur, or if Borrower should fail to observe or perform any agreement or
term hereof, or if Bank at any time feels insecure for any reason whatsoever,
Bank may, at its option, thereupon or thereafter declare all liabilities of
Borrower to Bank, or any of them selected by Bank (notwithstanding any
provisions thereof), immediately due and payable without demand or notice of any
kind and the same thereupon shall immediately become and be due and payable
without demand or notice (but with such adjustments, if any, with respect to
interest or other charges as may be provided for n the promissory note or other
writing evidencing such liability), and Bank may, in addition to any other
rights and remedies which it may have, immediately and without demand, exercise
any and all rights and remedies granted to a secured party upon default under
the Florida Uniform Commercial Code; and upon request or demand of Bank,
Borrower shall at its expense, assemble Borrower's Inventory and make it
available to Bank at a convenient place acceptable to Bank; and Borrower shall
promptly pay to Bank any and all costs and expenses, including legal expenses
and reasonable attorney's fees incurred or paid by Bank in protecting and
enforcing liabilities and rights of Bank hereunder, including Bank's right to
take possession of Borrower's inventory and the proceeds of Accounts and
Inventory, and to hold, prepare for sale, sell and dispose of such Inventory.
Any notice of sale, disposition or other intended action by Bank, sent to
Borrower at the address specified in the preamble to this agreement, or such
other address of Borrower as may from time to time be shown on Bank's records,
at least five days prior to such action, shall constitute reasonable notice to
Borrower. Upon disposition by Bank or any property in which Bank has a security
interest hereunder, or upon collection by Bank of the proceeds of Accounts,
Borrower shall be and remain liable for and deficiency; and Bank shall account
to Borrower for any surplus, but Bank shall have the right to apply all or any
part of such surplus (or to hold the same as a reserve against) all or any
liabilities of Borrower to Bank, whether or not they, or any of them, be then
due, without marshaling of assets and in such order of application as Bank may
from time to time elect.
14. Borrower waives protest of all commercial paper at any
time held by Bank on which Borrower is in any way liable, notice of non-payment
at maturity of any and all Accounts, and except where required hereby or by law,
notice of action taken by Bank; and hereby ratifies and confirms whatever Bank
may do.
15. No waiver by Bank of any default shall operate as a waiver
of any other default or of the same default on a future occasion. No delay or
omission on the part of Bank in exercising any right or remedy shall operate as
a waiver thereof, and no single or partial exercise by Bank of any right or
remedy shall preclude any other or further exercise thereof or the exercise of
any other right or remedy. Time is of the essence of this agreement. The
provisions of this agreement are cumulative and in addition to the provisions of
any liability and any note or other writing evidencing any liability secured by
this agreement, and Bank shall have all the benefits, rights and remedies of and
under any liability and any note or other writing evidencing any liability
secured hereby. If more than one party shall execute this agreement, the term
"Borrower" shall mean all parties signing this agreement and each of them, and
all such parties shall be jointly and severally obligated and liable hereunder.
The singular pronoun, when used herein, shall include the plural, and the neuter
shall include the masculine and feminine. All rights of Bank hereunder shall
inure to the benefit of its successors and assigns; and all obligations of
Borrower shall bind the heirs, executors, administrators, successors and assigns
of each Borrower.
16. Borrower releases Bank from all claims for loss or damage
caused by any failure to collect any account or enforce any contract or by any
act or omission on the part of the Bank, its officers, agents and employees,
except willful misconduct.
17. This agreement may be terminated by either party giving
the other written notice of intention to terminate on a date named in said
notice, mailed to the last known address of the party to whom such notice is
addressed: but no such termination shall in any way affect the rights and
liabilities of the parties hereunder relating to loans or advances made,
Accounts, Inventory or other property pledged prior to the date named in such
notice.
18. This agreement has been delivered in the State of Florida
and shall be construed in accordance with the laws of Florida. Wherever
possible, each provision of this agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
agreement.
IN WITNESS WHEREOF, this agreement has been duly executed as
of the date hereinabove first written.
Computer Science Innovation, Inc.
Signed, sealed and delivered
in the presence of By: /s/ GeorgeMilligan (SEAL)
Xxxxxx X. Xxxxxxxx, President
_______________________________ By: /s/ Xxxxxxx X. Xxxxxxxx (SEAL)
------------------------------
_______________________________ _________________________(SEAL)
(CORPORATE SEAL) BORROWER
SunTrust Bank, Central Florida,
National Association fka Sun Bank,
National Association
ATTEST: __________________________________
(NAME OF BANK)
_______________________________ By: /s/ Xxxx Xxxxx
Xxxx Xxxxx, Business Banking Officer
As its Cashier As its President
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EXHIBIT "A"
------------------------------------------------------------------------------
This Exhibit describes the property to be included in Collateral or Security"
referred to in a Note, Security Agreement and in any Financing statement
delivered by Computer Science Innovations, Inc.
All accounts, contract rights, chattel paper and all other obligations
evidencing any obligation to borrower for payment for goods sold or leased or
services rendered and all quaranties and other property securing the payment of
or performance under any accounts, contract rights or any such chattel paper or
instruments and any insurance proceeds or other cash receivable, whether now
existing or hereafter arising.
All equipment of every description, now owned or hereafter existing or acquired;
all accessories, attachments, parts and equipment now or hereafter affixed
thereto or used in connection therewith, all renewals, substitutions or
replacements thereof, insurance proceeds due to loss or damage thereof, and cash
or non-cash proceeds and products of any of the foregoing. Borrower's right to
dispose of the collateral is restricted by agreement with the lender.
All inventory, including goods in process and raw materials and other tangible
personal property arising or acquired and held for sale or lease or furnished or
to be furnished under contracts of service including any products thereof, and
in contract rights with respect thereto and proceeds of both whether existing
now or arising hereafter, all additions, accessions thereto, and any proceeds
from insurance coverage due to loss or damage, all renewals, substitutions,
attachments, replacements thereof and any cash or non-cash proceeds and products
of the foregoing.
September 5, 1996
Computer Science Innovations, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, President
By: /s/ Xxxxxxx X. Xxxxxxxx
BANK: SunTrust Bank, Central Florida,
National Association, fka Sun
Bank, National Association
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx, Business
Banking Officer
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EXHIBIT "B"
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Additional Collateral:
Assignment of Contract between Computer Science Innovations and Maryland
Procurement Office (Wordage II), contract number MDA904-92-G-0147/5004 not to
exceed $212,570.00
Assignment of Contract between Computer Science Innovations and Maryland
Procurement Office (Pearlware III), contract number MDA90492-G-0147/5005 in the
amount of $149,300.00
Assignment of Contract between Computer Science Innovations and Maryland
Procurement Office (Xxxxxx), contract number MDA904-94-C-7138 in the amount of
$400,093.00
Assignment of contract between Computer Science Innovations and Intergraph
Corporation, contract number FSNO133 in the amount of $113,738.90
Assignment of Contract between computer Science Innovations and U.S. Army
Information System command (Xxxx), contract number DAEA08-91-C-0003
The above described collateral is in addition to that listed in the attached
Promissory Note and Security Agreement dated September 5, 1996, the terms and
conditions of which are hereby incorporated by reference.
Computer Science Innovations, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx 9/5/96
Xxxxxx X. Xxxxxxxx, President
By: /s/ Xxxxxxx X. Xxxxxxxx
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[SUNTRUST LOGO] Corporate Resolution and Certificate of Incumbency
(Borrowing)
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I, the undersigned, hereby certify that I am the President and custodian of the
records of Computer Science Innovations, Inc. (registered name of corporation),
a corporation duly organized and existing under the laws of Florida (hereinafter
"Corporation"); that the following is a true and correct copy of certain
resolutions duly adopted by the Board of Directors of said Corporation at a
meeting duly held on the 5th day of September, 1996, at which a quorum was
present; and that the following resolutions are in conformity with the charter
and by-laws of said Corporation and have not since been rescinded or modified.
RESOLVED, that any 2 (number required) of the following corporate officers:
Name Xxxxxx X. Xxxxxxxx Title President
Name Xxxxx X. Xxxxxxxx Title Executive Vice President
Name Xxxxxxx Xxxxxxxx Title Comptroller
Name ___________________ Title ________________________
Name ___________________ Title ________________________
Name ___________________ Title ________________________
Name ___________________ Title ________________________
Name ___________________ Title ________________________
be and are hereby authorized on behalf of the Corporation from time to time to
borrow money, obtain credit and procure loans from Bank without limit as to
amount; to sell or discount any notes, bills or accounts, acceptances or any
other instruments to Bank; to assign, pledge, convey, transfer, mortgage or
otherwise create a lien upon any real and/or personal property of this
Corporation as security for the payment of any and all other indebtedness,
liabilities and obligations of the Corporation to said Bank, whether in the
usual course of business or otherwise; and, in furtherance of and in connection
with the foregoing, to make, execute and deliver in the name of and on behalf of
this Corporation, under its corporate seal or otherwise, such agreements,
documents or instruments deemed reasonable or necessary.
RESOLVED FURTHER, that all actions heretofore taken by the officer or officers
named herein in obtaining loans or credits on behalf of this Corporation and in
the exercise of the authority and powers herein granted are hereby ratified,
adopted and confirmed; and that Bank is hereby authorized and directed to pay
the proceeds of any such loans or credits as directed by said officers, whether
for payment or credit to the account of this Corporation with Bank or with
another financial institution, or to such officers, or any third person, or
otherwise; and
RESOLVED FURTHER, that the undersigned is authorized and directed to furnish
said Bank a certified copy of these resolutions, which resolutions shall
continue in full force and effect until written notice of the recision or
modification of the same has been received by Bank, and to furnish said Bank the
names and specimen signatures of the officer(s) named herein, and such persons
from time to time holding the above positions, herewith and/or on Bank's usual
form of signature card.
I hereby certify that the following are the names and specimen signatures of the
officer(s) listed in the foregoing resolutions and that each presently holds the
title indicated and has full authority for all acts unless noted herein.
Name Xxxxxx X. Xxxxxxxx Title President Signature/s/ Xxxxxx Xxxxxxxx
Name Xxxxx X. Xxxxxxxx Title Executive Vice President Signature/s/ Xxxxx X. Xxxxxxxx
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Name Xxxxxxx Xxxxxxxx Title Comptroller Signature/s/ Xxxxxxx Xxxxxxxx
Name _________________ Title ________________________ Signature _____________________
Name _________________ Title ________________________ Signature _____________________
Name _________________ Title ________________________ Signature _____________________
Name _________________ Title ________________________ Signature _____________________
Name _________________ Title ________________________ Signature _____________________
Special Instructions:
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of
said Corporation this 5th day of September, 1996.
Corporate Seal By:/s/ Xxxxxx Xxxxxxxx
Title President
[SUNTRUST BANK LETTERHEAD]
July 2, 1997
Xx. Xxxxxx Xxxxxxxx
President
Computer Science Innovations, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Subject: Notification of Extension of Loan Maturity (9/26/97)
Dear Xx. Xxxxxxxx:
SunTrust Bank, Central Florida, National Association hereby advises you that the
maturity date of June 30, 1997 for your loan #0000000000-00026 in the name of
Computer Science Innovations, Inc., (Borrower) is hereby extended 88 days. Other
than the maturity date as changed above, all other terms and conditions remain
unchanged. This Extension is contingent upon the Borrower making payments during
the Extension period in the amount and at the interval specified in the payment
schedule of the note.
Sincerely,
/s/
First Vice President
SunTrust Bank Central Florida, National Association
