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EXHIBIT 10.2
[FIRST COMMERCIAL LOGO]
COMMERCIAL
SECURITY
AGREEMENT
First Commercial Bank of Huntsville
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000 "LENDER"
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BORROWER OWNER
Cyber Computer Products Corporation Cyber Computer Products Corporation
ADDRESS ADDRESS
0000 Xxxxxxxx Xxxxx 0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
TELEPHONE NO. IDENTIFICATION NO. TELEPHONE NO. IDENTIFICATION NO.
(000) 000-0000 630801728 (000) 000-0000 630801728
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1. SECURITY INTEREST. For good and valuable consideration, Owner grants to
Lender identified above a continuing security interest in the Collateral
described below to secure the Obligations described in this Agreement.
2. OBLIGATIONS. The collateral shall secure the payment and performance of
all of Borrower's and Owner's present and future, joint and/or several, direct
and indirect, absolute and contingent, express and implied indebtedness to
Lender under any promissory note or agreement described below, including all
future advances made by Lender to Borrower or Owner and expenditures incurred
by Lender upon the occurrence of an Event of Default (collectively
"Obligations"):
a. this Agreement and/or the following promissory notes and agreements:
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INTEREST PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN
RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
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8.188% $12,000,000.00 03/26/98 04/02/98
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b. [X] all other presently existing or future, evidence of
indebtedness, obligations, agreements, instruments, guaranties or
otherwise of Borrower or Owner to Lender (WHETHER INCURRED FOR THE
SAME OR DIFFERENT PURPOSES THAN THE FOREGOING); and
c. all renewals, extensions, amendments, modifications, replacements
or substitutions to any of the foregoing.
3. COLLATERAL. All of Owner's rights, title and interest in the following
described property whether now or hereafter existing or now owned or hereafter
acquired by Owner and wherever located shall constitute the "Collateral:"
[ ] All accounts and contract rights including, but not limited to, any
accounts and contract rights described on Schedule A attached hereto
and incorporated herein by this reference;
[ ] All chattel paper including, but not limited to, any chattel paper
described on Schedule A attached hereto and incorporated herein by
this reference;
[ ] All documents including, but not limited to, any documents
described on Schedule A attached hereto and incorporated herein by
this reference;
[ ] All equipment, including, but not limited to, any equipment
described on Schedule A attached hereto and incorporated herein
by this reference;
[ ] All fixtures, including, but not limited to, any fixtures described
on Schedule A and located or to be located on the real property
described on Schedule B attached hereto and incorporated herein by
this reference;
[ ] All general intangibles including, but not limited to, any general
intangibles described on Schedule A attached hereto and
incorporated herein by this reference;
[ ] All instruments including, but not limited to, any instruments
described on Schedule A attached hereto and incorporated herein by
this reference;
[ ] All inventory including, but not limited to, any inventory described
on Schedule A attached hereto and incorporated herein by this
reference;
[ ] All minerals or the like and accounts resulting from sales at the
wellhead or minehead located on or related to the real property
described on Schedule B attached hereto and incorporated herein by
this reference;
[ ] All standing timber which is to be cut and removed under a
conveyance or contract for sale located on the real property
described on Schedule B attached hereto and incorporated herein by
this reference;
[ ] Other;
THE PROPERTY DESCRIBED ON SCHEDULE A;
All monies, instruments, and savings, checking or other accounts of Owner
(excluding XXX, Xxxxx, trust accounts, and other accounts subject to tax
penalties if so assigned) that are now or in the future in Lender's custody or
control;
All monies or instruments pertaining to the Collateral described above;
All accessions, accessories, additions, amendments, attachments, modifications,
replacements and substitutions to any of the above;
All proceeds and products of any of the above;
All policies of insurance pertaining to any of the above as well as any
proceeds and unearned premiums pertaining to such policies; and
All books and records pertaining to any of the above.
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4. OWNER'S TAXPAYER IDENTIFICATION. Owner's social security number or
federal taxpayer identification number is: 000000000.
5. RESIDENCY/LEGAL STATUS. [ ] Owner is an individual and a resident of the
state of: _____________________________________. [ X ] Owner is a Corporation
duly organized, validly existing and in good standing under the laws of the
state of: Alabama.
6. REPRESENTATIONS, WARRANTIES, AND COVENANTS. Owner represents, warrants
and convenants to Lender that:
(a) Owner is and shall remain the sole owner of the Collateral;
(b) Neither Owner, nor, to the best of Owner's knowledge, has any
other party used, generated, released, discharged, stored, or
disposed of any hazardous waste, toxic substance, or hazardous
material or transported any such material across the property
except as allowed by and in accordance with applicable federal,
state and local law and regulation. Owner shall not commit or
permit such actions to be taken in the future. The term
"Hazardous Materials" shall mean any substance, material, or waste
which is or becomes regulated by any governmental authority
including, but not limited to, (i) petroleum; (ii) asbestos; (iii)
polychlorinated biphenyls; (iv) those substances, materials or
wastes designated as a "hazardous substance" pursuant to Section
311 of the Clean Water Act or listed pursuant to Section 307 of
the Clean Water Act or any amendments or replacements of these
statutes; (v) those substances, materials or wastes defined as a
"hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act of any amendments or replacements to
that statute; or (vi) those substances, materials or wastes
defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability
Act, or any amendments or replacements to that statue. Owner is in
compliance in all respects with all applicable federal, state and
local laws and regulations, including, without limitation, those
relating to "Hazardous Materials", as defined herein, and other
environmental matters (the "Environmental Laws") and neither the
federal government nor any other governmental or quasi
governmental entity has filed a lien on the Collateral, nor are
there any pending or threatened governmental, judicial or
administrative actions with respect to environmental matters,
which involve the Collateral;
(c) Owner's chief executive office, principal place of business,
office where its business records relating to the Collateral or
residence is the address identified above. The Collateral is
located and has been located during the four (4) month period
prior to the date hereof, at the address described above or any
address described on Schedule C attached hereto and incorporated
herein by this reference. Owner shall immediately advise Lender
in writing of any change in or addition to the foregoing
addresses;
(d) Owner shall not become a party to any restructuring of its form of
business or participate in any consolidation, merger, liquidation
or dissolution without Lender's prior written consent;
(e) Owner shall notify Lender of the nature of any intended change of
Owner's name, or the use of any trade name, and the effective date
of such change;
(f) The Collateral is and shall at all times remain free of all tax
and other liens, security interests, encumbrances and claims of
any kind except for those belonging to Lender and those described
on Schedule D attached hereto and incorporated herein by this
reference. Without waiving the Event of Default as a result
thereof, Owner shall take any action and execute any document
needed to discharge any liens, security interests, encumbrances
and claims not described on Schedule D;
(g) Owner shall defend the Collateral against all claims and demands
of all persons at any time claiming any interest therein;
(h) All of the goods, fixtures, minerals or the like, and standing
timber constituting the Collateral are and shall be located at
Owner's executive offices, places of business, residence and
domiciles specifically described in this Agreement. Owner shall
not change the location of any Collateral without the prior
written consent of Lender;
(i) Owner shall provide Lender with possession of all chattel paper
and instruments constituting the Collateral, and Owner shall
promptly xxxx all chattel paper, instruments, and documents
constituting the Collateral to show that the same are subject to
Lender's security interest;
(j) All of Owner's accounts or contract rights; chattel paper;
documents; general intangibles; instruments; and federal, state,
county, and municipal government and other permits and licenses;
trusts, liens, contracts, leases, and agreements constituting the
Collateral are and shall be valid, genuine and legally enforceable
obligations and rights belonging to Owner against one or more
third parties and not subject to any claim, defense, set-off or
counterclaim of any kind;
(k) Owner shall not amend, modify, replace, or substitute any account
or contract right; chattel paper; document; general intangible; or
instrument constituting the Collateral without the prior written
consent of Lender;
(l) Owner has the right and is duly authorized to enter into and
perform its obligations under this Agreement. Owner's execution
and performance of these obligations do not and shall not conflict
with the provisions of any statute, regulation, ordinance, rule of
law, contract or other agreement which may now or hereafter be
binding on Owner;
(m) No action or proceeding is pending against Owner which might
result in any material or adverse change in its business
operations or financial condition or materially affect the
Collateral;
(n) Owner has not violated and shall not violate any applicable
federal, state, county or municipal statute, regulation or
ordinance (including but not limited to those governing Hazardous
Materials) which may materially and adversely affect its business
operations or financial condition of the Collateral;
(o) Owner shall, upon Lender's request, deposit all proceeds of the
Collateral into an account or accounts maintained by Owner or
Lender at Lender's institution;
(p) Owner will, upon receipt, deliver to Lender as additional
Collateral all securities distributed on account of the Collateral
such as stock dividends and securities resulting from stock
splits, reorganizations and recapitalizations;
(q) Owner agrees to the terms of the Obligations and to the terms of
any renewals, extensions, amendments, modifications, replacements
or substitutions of the Obligations; Lender may enter into
agreements in the future with Borrower which, if this Agreement so
provides, will become Obligations secured by the Collateral
described in this Agreement; property other than the Collateral
may also secure the Obligations, that Lender shall have no
obligation to exercise its rights against such property prior to
exercising its rights against the Collateral, that Lender may
accept substitutions or exchanges for any such property, and that
Lender may release its security interest in such property at any
time; parties other than Borrower may be or may become obligated
under the Obligations; and
(r) This Agreement and the obligations described in this Agreement are
executed and incurred for business and not consumer purposes.
7. SALE OF COLLATERAL. Owner shall not assign, convey, lease, sell or
transfer any of the Collateral to any third party without the prior written
consent of Lender except for sales of inventory to buyers in the ordinary
course of business.
8. FINANCING STATEMENTS AND OTHER DOCUMENTS. Owner shall at any time and
from time to time take all actions and execute all documents required by Lender
to attach, perfect and maintain Lender's security interest in the Collateral
and establish and maintain Lender's right to receive the payment of the
proceeds of the Collateral including, but not limited to, executing any
financial statements, fixture filings, continuation statements, notices of
security interest and other documents required by the Uniform Commercial Code
and other applicable law. Owner shall pay the costs of filing such documents
in all offices wherever filing or recording is deemed by Lender to be necessary
or desirable. Lender shall be entitled to perfect its security interest in the
Collateral by filing carbon, photographic or other reproductions of this
Agreement and/or the aforementioned documents with any authority required by
the Uniform Commercial Code or other applicable law. Owner authorizes Lender
to execute and file any financing statements, as well as extensions, renewals
and amendments of financing statements in such form as Lender may require to
perfect and maintain perfection of any security interest granted in this
Agreement.
9. INQUIRIES AND NOTIFICATION TO THIRD PARTIES. Owner hereby authorizes
Lender to contact any third party and make any inquiry pertaining to Owner's
financial condition or the Collateral. In addition, Lender is authorized to
provide oral or written notice of its security interest in the Collateral to any
third party.
10. LOCK BOX, COLLATERAL ACCOUNT. If Lender so requests at any time (whether
or not Owner is in default of this Agreement), Owner will direct each of its
account debtors to make payments due under the relevant account or chattel
paper directly to a special lock box to be under the control of Lender. Owner
hereby authorizes and directs Lender to deposit into a special collateral
account to be established and maintained with Lender all checks, drafts and
cash payments received in the lock box. All deposits in the collateral account
shall constitute proceeds of Collateral and shall not constitute payment of any
Obligation. At its option, Lender may, at any time, apply finally collected
funds on deposit in the collateral account to the payment of the Obligations in
such order of application as Lender may determine, or permit Owner to withdraw
all or any part of the balance on deposit in the collateral account. If a
collateral account is so established, Owner agrees that Owner will promptly
deliver to Lender, for deposit into the collateral account, all payments on
accounts and chattel paper received by Owner. All such payments shall be
delivered to Lender in the form received (except for Owner's endorsement if
necessary). Until so deposited, all payments on accounts and chattel paper
received by Owner shall be held in trust by Owner for and as the property of
Lender and shall not be commingled with any funds or property of Owner.
11. COLLECTION OF INDEBTEDNESS FROM THIRD PARTIES. Lender shall be entitled
to notify, and upon the request of Lender, owner shall notify any account
debtor or third party (including, but not limited to, insurance companies) to
pay any indebtedness or obligation owing to Owner and constituting the
Collateral (collectively "Indebtedness") to Lender whether or not a default
exists under this Agreement. Owner shall diligently collect the Indebtedness
owing to Owner from its account debtors and other third parties until the
giving of such notification. In the event that Owner possesses or receives
possession of any instruments or other remittances with respect to the
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Indebtedness following the giving of such notification or if the instruments or
other remittances constitute the prepayment of any Indebtedness or the payment
of any insurance proceeds, Owner shall hold such instruments and other
remittances in trust for Lender apart from its other property, endorse the
instruments and other remittances to Lender, and immediately provide Lender
with possession of the instruments and other remittances. Lender shall be
entitled, but not required, to collect (by legal proceedings or otherwise),
extend the time for payment, compromise, exchange or release any obligor or
collateral, or otherwise settle any of the Indebtedness whether or not an event
of default exists under this Agreement. Lender shall not be liable to Owner
for any action, error, mistake, omission or delay pertaining to the actions
described in this paragraph or any damages resulting therefrom.
12. POWER OF ATTORNEY. Owner hereby appoints Lender as its attorney-in-fact
to endorse Owner's name on all instruments and other remittances payable to
Owner with respect to the Indebtedness, including any items received by Lender
in any lockbox account, or other documents pertaining to Lender's actions in
connection with the Indebtedness. In addition, Lender shall be entitled, but
not required, to perform any action or execute any document required to be
taken or executed by Owner under this Agreement. Lender's performance of such
action or execution of such documents shall not relieve Owner from any
obligation or cure any default under this Agreement. The powers of attorney
described in this paragraph are coupled with an interest and are irrevocable.
13. USE AND MAINTENANCE OF COLLATERAL. Owner shall use the Collateral solely
in the ordinary course of its business, for the usual purposes intended by the
manufacturer (if applicable), with due care, and in compliance with the laws,
ordinances, regulations, requirements and rules of all federal, state, county
and municipal authorities including environmental laws and regulations and
insurance policies. Owner shall not make any alterations, additions or
improvements to the Collateral without the prior written consent of Lender.
Owner shall ensure that Collateral which is not now a fixture does not become a
fixture. Without limiting the foregoing, all alterations, additions and
improvements made to the Collateral shall be subject to the security interest
belonging to Lender, shall not be removed without the prior written consent of
Lender, and shall be made at Owner's sole expense. Owner shall take all
actions and make any repairs or replacements needed to maintain the Collateral
in good condition and working order.
14. LOSS OR DAMAGE. Owner shall bear the entire risk of any loss, theft,
destruction or damage (collectively "Loss or Damage") to all or any part of the
Collateral. In the event of any Loss or Damage, Owner will either restore the
Collateral to its previous condition, replace the Collateral with similar
property acceptable to Lender in its sole discretion, or pay or cause to be
paid to Lender the decrease in the fair market value of the affected Collateral.
15. INSURANCE. If the original amount of the Obligations is $300 or more,
exclusive of the charges for insurance, and the value of the Collateral to be
insured is $300 or more ($500 or more if the collateral is a motor vehicle),
the Collateral will be kept insured for its full value against all loss or
damage caused by fire, collision, theft or other casualty. If the Collateral
consists of a motor vehicle having a retail value of at least $500, Owner will
obtain comprehensive and collision coverage in amounts at least equal to the
actual cash value of the vehicle with deductibles not to exceed $ n/a. OWNER
HAS THE RIGHT TO PROVIDE SUCH INSURANCE THROUGH AN EXISTING POLICY OR A POLICY
INDEPENDENTLY OBTAINED AND PAID FOR BY OWNER, subject to the right of the
Lender to decline the insurance offered by Owner for reasonable cause before
credit is extended. Owner shall assign to Lender all rights to receive
proceeds of insurance not exceeding the amount owed under the obligations
described above, and direct the insurer to pay all proceeds directly to
Lender. The insurance policies shall require the insurance company to provide
Lender with at least n/a days written notice before such policies are altered
or cancelled in any manner. The insurance policies shall name Lender as a loss
payee and provide that no act or omission of Owner or any other person shall
affect the right of Lender to be paid the insurance proceeds pertaining to the
loss or damage of the Collateral. In the event Owner fails to acquire or
maintain insurance, Lender (after providing notice as may be required by law)
may in its discretion procure appropriate insurance coverage upon the
Collateral and charge the insurance cost as an advance of principal under the
promissory note. Owner shall furnish Lender with evidence of insurance
indicating the required coverage. Lender may act as attorney-in-fact for Owner
in making and settling claims under insurance policies, cancelling any policy
or endorsing Owner's name on any draft or negotiable instrument drawn by any
insurer
16. INDEMNIFICATION. Lender shall not assume or be responsible for the
performance of any of Owner's obligations with respect to the Collateral under
any circumstances. Owner shall immediately provide Lender with written notice
of and hereby indemnifies and holds Lender and its shareholders, directors,
officers, employees and agents harmless from all claims, damages, liabilities
(including attorneys' fees and legal expenses), causes of action, actions,
suits and other legal proceedings (collectively "Claims") pertaining to its
business operations or the Collateral including, but not limited to, those
arising from Lender's performance of Owner's obligations with respect to the
Collateral or claims involving Hazardous Materials. Owner, upon the request of
Lender, shall hire legal counsel to defend Lender from such Claims, and pay the
attorneys' fees, legal expenses and other costs to the extent permitted by
applicable law, incurred in connection therewith. In the alternative, Lender
shall be entitled to employ its own legal counsel to defend such Claims at
Owner's cost.
17. TAXES AND ASSESSMENTS. Owner shall execute and file all tax returns and
pay all taxes, licenses, fees and assessments relating to its business
operations and the Collateral (including, but not limited to, income taxes,
personal property taxes, withholding taxes, sales taxes, use taxes, excise
taxes and workers' compensation premiums) in a timely manner.
18. INSPECTION OF COLLATERAL AND BOOKS AND RECORDS. Owner shall allow Lender
or its agents to examine, inspect and make abstracts and copies of the
Collateral and Owner's books and records pertaining to Owner's business
operations and financial condition or the Collateral during normal business
hours. Owner shall provide any assistance required by Lender for these
purposes. All of the signatures and information pertaining to the Collateral
or contained in the books and records shall be genuine, true, accurate and
complete in all respects. Owner shall note the existence of Lender's security
interest in its books and records pertaining to the Collateral.
19. EVENTS OF DEFAULT. An Event of Default will occur under this Agreement in
the event that Owner, Borrower or any guarantor:
(a) fails to make any payment under this Agreement or any other
indebtedness to Lender when due;
(b) fails to perform any obligation or breaches any warranty or covenant
to Lender contained in this Agreement or any other present or future
written agreement regarding this or any other indebtedness to Lender;
(c) provides or causes any false or misleading signature or representation
to be provided to Lender;
(d) sells, conveys, or transfers rights in any Collateral without the
written approval of Lender; destroys, loses or damages such Collateral
in any material respect; or subjects such Collateral to seizure,
confiscation, or condemnation;
(e) seeks to revoke, terminate or otherwise limit its liability under any
continuing guaranty;
(f) has a garnishment, judgment, tax levy, attachment or lien entered or
served against Owner, Borrower, or any guarantor, or any of their
property including the Collateral;
(g) dies, becomes legally incompetent, is dissolved or terminated, ceases
to operate its business, becomes insolvent, makes an assignment for
the benefit of creditors, fails to pay any debts as they become due,
or becomes the subject of any bankruptcy, insolvency or debtor
rehabilitation proceeding;
(h) allows the Collateral to be used by anyone to transport or store
goods, the possession, transportation, or use of which, is illegal;
(i) fails to provide Lender evidence of satisfactory financial condition;
(j) has a majority of its outstanding voting securities sold, transferred
or conveyed to any person or entity other than any person or entity
that has the majority ownership as of the date of the execution of
this Agreement; or
(k) causes Lender to deem itself insecure due to a significant decline in
the value of any of the Collateral or Lender, in good faith, believes
the prospect of payment or performance in impaired.
20. RIGHTS OF LENDER ON EVENT OF DEFAULT. Upon the occurrence of an Event of
Default under this Agreement, Lender shall be entitled to exercise one or more
of the following remedies without notice or demand (except as required by law):
(a) to declare the Obligations immediately due and payable in full, such
acceleration shall be automatic and immediate if the Event of Default
is a filing under the Bankruptcy Code;
(b) to collect the outstanding Obligations with or without resorting to
judicial process;
(c) to change Owner's mailing address, open Owner's mail, and retain any
instruments or other remittances constituting the Collateral contained
therein;
(d) to take possession of any Collateral in any manner permitted by law;
(e) to apply for and obtain, without notice and upon ex parte application,
the appointment of a receiver for the Collateral without regard to
Owner's financial condition or solvency, the adequacy of the
Collateral to secure the payment or performance of the obligations, or
the existence of any waste to the Collateral;
(f) to require Owner to deliver and make available to Lender any
Collateral at a place reasonably convenient to Owner and Lender;
(g) to sell, lease or otherwise dispose of any Collateral and collect any
any deficiency balance with or without resorting to legal process;
(h) to set-off Owner's obligations against any amounts due to Owner
including, but not limited to, monies, instruments, and deposit
accounts maintained with Lender; and
(i) to exercise all other rights available to Lender under any other
written agreement or applicable law.
Lender's rights are cumulative and may be exercised together, separately, and
in any order. Unless the Collateral is perishable, threatens to decline
speedily in value or is of a type customarily sold on a recognized market,
Lender will provide reasonable notification of the time and place of any sale or
intended disposition as required under the Uniform Commercial Code. If the
Collateral consists of securities, Lender shall be entitled to transfer the
securities into the name of Lender or its designee and to vote the securities.
Lender shall be authorized to notify the issuer of the securities to remit any
related dividends, interest and securities resulting from stock splits,
reorganizations and capitalizations directly to Lender or its designee. In the
event that Lender institutes an action to recover any Collateral or seeks
recovery of any Collateral by way of a prejudgment remedy in an action against
Owner, Owner waives the posting of any bond which might otherwise be required.
Upon default, Owner shall segregate all proceeds of Collateral and hold such
proceeds in trust for Lender. Lender's remedies under this paragraph are in
addition to those available at common law, such as offset.
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21. APPLICATIONS OF PAYMENTS. Whether or not a default has occurred under this
Agreement, all payments made by or on behalf of Owner and all credits due to
Owner from the disposition of the Collateral or otherwise may be applied against
the amounts paid by Lender (including attorneys' fees and legal expenses) in
connection with the exercise of its rights or remedies described in this
Agreement and any interest thereon and then to the payment of the remaining
Obligations in whatever order Lender chooses.
22. REIMBURSEMENT OF AMOUNTS EXPENDED BY LENDER. Owner shall reimburse Lender
for all amounts (including attorneys' fees and legal expenses) expended by
Lender in the performance of any action required to be taken by Owner or the
exercise of any right or remedy belonging to Lender under this Agreement,
together with interest thereon at the lower of the highest rate described in
any promissory note or credit agreement executed by Borrower or Owner or the
highest rate allowed by law from the date of payment until the date of
reimbursement. These sums shall be included in the definition of Obligations,
shall be secured by the Collateral identified in this Agreement and shall be
payable upon demand. Lender has no duty to take any action to protect the value
of the Collateral or to exercise any rights of the Owner with respect to the
Collateral.
23. ASSIGNMENT. Owner shall not be entitled to assign any of its rights,
remedies or obligations described in this Agreement without the prior written
consent of Lender. Consent may be withheld by Lender in its sole discretion.
Lender shall be entitled to assign some or all of its rights and remedies
described in this Agreement without notice to or the prior consent of Owner in
any manner.
24. MODIFICATION AND WAIVER. The modification or waiver of any of Owner's
Obligations or Lender's rights under this Agreement must be contained in a
writing signed by Lender. Lender may perform any of Owner's Obligations or
delay or fail to exercise any of its rights without causing a waiver of those
Obligations or rights. A waiver on one occasion shall not constitute a waiver
on any other occasion. Owner's Obligations under this Agreement shall not be
affected if Lender amends, compromises, exchanges, fails to exercise, impairs
or releases any of the obligations belonging to any Owner or third party or any
of its rights against any Owner, third party, Collateral or any other property
securing the Obligations.
25. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of Owner and Lender and their respective successors, assigns,
trustees, receivers, administrators, personal representatives, legatees, and
devisees.
26. NOTICES. Any notice or other communication to be provided under this
Agreement shall be in writing and sent to the parties at the addresses
described in this Agreement or such other address as the parties may designate
in writing from time to time.
27. SEVERABILITY. If any provision of this Agreement violates the law or is
unenforceable, the rest of the Agreement shall remain valid.
28. APPLICABLE LAW. This Agreement shall be governed by the laws of the state
indicated in Lender's address. Unless applicable law provides otherwise, Owner
consents to the jurisdiction of any court located in such state selected by
Lender in the event of any legal proceeding under this Agreement.
29. COLLECTION COSTS. If the original amount of the Obligations exceeds $300,
and if Lender hires an attorney who is not its salaried employee to collect any
amount due under the Obligations or enforce any right or remedy of Lender under
this Agreement, Owner agrees to pay Lender's reasonable expenses and collection
costs, including reasonable attorneys' fees not exceeding 15% of the unpaid
debt after default.
30. MISCELLANEOUS. This Agreement is executed for commercial purposes. Owner
shall supply information regarding Owner's business operations and financial
condition or the Collateral in the form and manner as required by Lender from
time to time. All information furnished by Owner to Lender shall be true,
accurate and complete in all respects. Owner and Lender agree that time is of
the essence. Owner waives presentment, demand for payment, notice of dishonor
and protest except as required by law. All references to Owner in this
Agreement shall include all parties signing below except Lender. This Agreement
shall be binding upon the heirs, successors and assigns of Owner and Lender. If
there is more than one Owner, their obligations under this Agreement shall be
joint and several. This Agreement shall remain in full force and effect until
Lender provides Owner with written notice of termination. This Agreement
represents the complete and integrated understanding between Owner and Lender
regarding the terms hereof.
31. WAIVER OF JURY TRIAL. LENDER AND OWNER HEREBY WAIVE ANY RIGHT TO A TRIAL
BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS SECURITY
AGREEMENT.
32. ADDITIONAL TERMS:
OWNER ACKNOWLEDGES THAT OWNER HAS READ, UNDERSTANDS, AND AGREES TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT. OWNER ACKNOWLEDGES RECEIPT OF AN EXACT COPY
OF THIS AGREEMENT.
Dated: March 26, 1998
LENDER: First Commercial Banks of Huntsville
By:/s/Xxxxx X. Xxxxx
-----------------------------------------
Xxxxx X. Xxxxx
Vice President
OWNER: Cybex Computer Products OWNER:
Corporation
By: /s/ Xxxxx X. Xxxxx
--------------------------- --------------------------------------------
Xxxxx X. Xxxxx
Chief Financial Officer
OWNER: OWNER:
------------------------------ --------------------------------------------
OWNER: OWNER:
------------------------------ --------------------------------------------
OWNER: OWNER:
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Page 4 of 5
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SCHEDULE A
US Government Treasury Xxxx maturing 4-2-98, in the maturity amount of
$12,000,000.00, CUSIP #0000000X0.
SCHEDULE B
Record Owner Name:
SCHEDULE C
SCHEDULE
6
LOAN MODIFICATION
STATE OF ALABAMA )
COUNTY OF Madison )
This Agreement is by and between First Commercial Bank ("Bank") and Cybex
Computer Products Corporation ("Borrower").
WHEREAS, Borrower is indebted to Bank on a loan("Loan"), as evidenced by a
Promissory Note dated July 1, 1997 ("Note"); and also described as note
#0073700-5603 in the face amount of $5,000,000.00.
WHEREAS, Borrower and Bank desire to modify the terms of said Loan set
forth herein.
NOW, THEREFORE, for and in consideration of the premises, Borrower and
Bank agree that the terms of the Loan are modified as follows: effective this
date, the interest rate shall be changed to a variable rate equal to 250 basis
points (2.50%) per annum) over the Index Rate. The index rate shall be the one
month LIBOR rate as published in the Money Rates section of The Wall Street
journal. Hereafter, this rate will be adjusted once per month on the 1st of
each month.
Except as modified herein, all of the terms and conditions of the Loan,
the Note, and of any and all other instruments executed in connection with said
Loan shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed effected the 5th day of March, 1998.
ATTEST FIRST COMMERCIAL BANK
Its: By: /s/ Xxxxx Xxxx
------------------------------- --------------------------------
Its: Vice President
----------------------------
WITNESS
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
ATTEST Cybex Computer Products Corporation
Its: By: /s/
------------------------------- --------------------------------
Its: Vice President
----------------------------
STATE OF ALABAMA )
COUNTY OF )
I,____________________________, a Notary Public in and for said County, in said
State, hereby certify that_____________________________________________________
whose name as_________________________________of_______________________________
a_______________________________, is signed to the foregoing conveyance and who
is known to me, acknowledged before me on this day that, being informed of the
contents of such conveyance, _______, as such__________and with full authority,
executed the same voluntarily for and as the act of said__________.
Given under my hand and official seal this ________day of______________,
19______.
My commission expires:____________________ _____________________________________
NOTARY PUBLIC
________________________________________________________________________________
________________________________________________________________________________
STATE OF ALABAMA )
COUNTY OF )
I, Xxxxxxx Xxxxxx, a Notary Public in and for said County, in said State,
hereby certify that Xxxxx Xxxxx whose name as Vice President of Cybex Computer
Products Corporation an officer, is signed to the foregoing conveyance, and who
is known to me, acknowledged before me on this day that, being informed of the
contents of such conveyance is, as such__________and with full authority,
executed the same voluntarily for and as the act of said_______________.
Given under my hand and official seal this 5th day of March, 1998.
My commission expires: /s/ Xxxxxxx Xxxxxx
-------------------- ----------------------------------
NOTARY PUBLIC
7
BORROWER
Cybex Computer Products Corporation
[LOGO] FIRST COMMERCIAL BANK COMMERCIAL
VARIABLE RATE
FIRST COMMERCIAL BANK OF HUNTSVILLE REVOLVING OR
000 XXXXXXXXXX XXXXXX XXXX XXXX
XXXXXXXXXX, XX 00000
(000) 000-0000 "LENDER" ADDRESS
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
TELEPHONE NO. IDENTIFICATION NO.
(000) 000-0000 00-0000000
-------------------------------------------------------------------------------------------------------
OFFICER INTEREST PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN
IDENTIFICATION RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
LKS VARIABLE $5,000,000.00 07/01/97 DEMAND
-------------------------------------------------------------------------------------------------------
GENERAL CORPORATE PURPOSES
-------------------------------------------------------------------------------------------------------
PROMISE TO PAY: For value received, Borrower promises to pay to the order of
Lender the principal amount of FIVE MILLION AND NO/100 ($5,000,000.00)
or, if less, the aggregate unpaid principal amount of all loans or advances
made by the Lender to the Borrower under this Note, plus interest on the unpaid
principal balance at the rate and in the manner described below, until all
amounts owing under this Note are paid in full. All amounts received by Lender
shall be applied first to accrued unpaid interest, then to unpaid principal and
then to unpaid late charges and expenses, or in any other order as determined
by Lender, in Lender's sole discretion, as permitted by law.
REVOLVING OR DRAW FEATURE: [X] This Note possesses a revolving feature. Upon
satisfaction of the conditions set forth in this Note, Borrower shall be
entitled to borrow up to the full principal amount of the Note and to repay and
reborrow from time to time during the term of this Note. [ ] This Note
possesses a draw feature. Upon satisfaction of the conditions set forth in this
Note, Borrower shall be entitled to draw one or more times under this Note. Any
repayment may not be reborrowed. The aggregate amount of such draws shall not
exceed the full principal amount of this Note.
Information with regard to any loans or advances under this Note shall be
recorded and maintained by Lender in its internal records and such records
shall be conclusive of the principal and interest owed by Borrower under this
Note unless there is a material error in such records. The Lender's failure to
record the date and amount of any loan or advance shall not limit or otherwise
affect the obligations of the Borrower under this Note to repay the principal
amount of the loans or advances together with all interest accruing thereon.
Borrower shall be entitled to inspect or obtain a copy of the records during
Lender's business hours.
CONDITIONS FOR ADVANCES: If no Event of Default has occurred under this Note,
Borrower shall be entitled to borrow monies under this Note (subject to the
limitations described above) under the following conditions:
INTEREST RATE: This Note has a variable rate feature. The interest rate on this
Note may change from time to time if the Index Rate identified below changes.
Interest shall be computed on the basis of the actual number of days over 360
days per year. Interest on this Note shall be calculated and payable at a
variable rate equal to 0.000% per annum OVER the Index Rate. The initial
interest rate on this Note shall be 8.500% per annum. Any change in the
interest rate resulting from a change in the Index Rate will be effective on:
The Date The Index Rate Changes.
RATE LIMITATIONS: Subject to applicable law, the minimum interest rate on this
Note shall be N/A % per annum. The maximum interest rate on this Note shall
exceed N/A % per annum, or if less, or if a maximum rate is not indicated, the
maximum interest rate Lender is permitted to charge by law. The maximum rate
increase at any one time will be N/A %. The maximum rate decrease at any one
time will be N/A %.
INDEX RATE: The Index Rate for this Note shall be:
Lender's Prime Rate, Which Is The Base Rate Used By Lender To Fix
Interest Rates At Which Loans Are Made To Various Customers, Which
Loans May Be Made By Lender At, Above Or Below Said Prime Rate.
If the Index Rate is redefined or becomes unavailable, then Lender may select
another index which is substantially similar.
DEFAULT RATE: If there is an Event of Default under this Note, the Lender may,
in its discretion, increase the interest rate on this Note to: pre-maturity
rate continues to apply post-maturity, or the maximum interest rate Lender is
permitted to charge by law, whichever is less.
PAYMENT SCHEDULE: Borrower shall pay the principal and interest according to
the following schedule:
ON DEMAND, BUT IF NO DEMAND IS MADE THEN:
11 INTEREST ONLY PAYMENTS BEGINNING AUGUST 5, 1997 AND CONTINUING AT MONTHLY
TIME INTERVALS THEREAFTER. A FINAL PAYMENT OF THE UNPAID PRINCIPAL BALANCE PLUS
ACCRUED INTEREST IS DUE AND PAYABLE ON JULY 5, 1998.
INTEREST SURCHARGE: Borrower agrees to pay an interest surcharge of $ N/A . The
interest surcharge is earned by Lender when paid and is not subject to refund;
however, if this Note is prepaid in full within 90 days after the date of this
Note, Borrower will receive a pro rata portion of the interest surcharge,
subject to Lender's right to retain a minimum surcharge of $4.00.
PREPAYMENT: This Note may be prepaid in part or in full on or before its
maturity date without penalty. If this Note contains more than one installment,
any partial prepayment will not affect the due date or the amount of any
subsequent installment, unless agreed to, in writing, by Borrower and Lender.
LATE CHARGE: If a payment is in default 10 days or more, Borrower will be
charged a late charge of: [ ]_____________% of the unpaid payment; [X] $0.50
or 5.00% of the unpaid payment, whichever is [X] greater, but not to exceed
$100.00; [ ] less.
SECURITY: To secure the payment and performance of obligations incurred under
this Note, Borrower grants Lender a security interest in all of Borrower's
right, title, and interest in all monies, instruments, savings, checking and
other accounts of Borrower (excluding XXX, Xxxxx, trust accounts and other
accounts subject to tax penalties if so assigned) that are now or in the future
in Lender's custody or control. [X] If checked, the obligations under this Note
are also secured by the collateral described in any security instrument(s)
executed in connection with this Note, and any collateral described in any
other security instrument(s) securing this Note or all of Borrower's
obligations.
RENEWAL: [ ] If checked, this Note is a renewal, but not a satisfaction, of
Loan Number __________________.
--------------------------------------------------------------------------------
THE PERSONS SIGNING BELOW ACKNOWLEDGE THAT THEY HAVE READ, UNDERSTAND, AND
AGREE TO THE TERMS AND CONDITIONS OF THIS NOTE, INCLUDING THE PROVISIONS ON THE
REVERSE SIDE, AND FURTHER ACKNOWLEDGE RECEIPT OF AN EXACT COPY OF THIS NOTE.
Dated: JULY 01, 1997
CAUTION - IT IS IMPORTANT THAT YOU THOROUGHLY READ THE CONTRACT
BEFORE YOU SIGN IT.
BORROWER: CYBEX COMPUTER PRODUCTS CORPORATION BORROWER:
BY: /s/ Xxxxx X. Xxxxx
-------------------------------------------------- --------------------------------------------------
XXXXX X. XXXXX
SVP, CFO, & Treasurer
BORROWER: BORROWER:
-------------------------------------------------- --------------------------------------------------
BORROWER: BORROWER:
-------------------------------------------------- --------------------------------------------------
BORROWER: BORROWER:
-------------------------------------------------- --------------------------------------------------
8
TERMS AND CONDITIONS
1. EVENTS OF DEFAULT. An Event of Default will occur under this Note in the
event that Borrower, any guarantor or any other third party pledging collateral
to secure this Note:
(a) fails to make any payment on this Note or any other indebtedness to
Lender when due;
(b) fails to perform any obligation or breaches any warranty or
covenant to Lender contained in this Note, any security instrument,
or any other present or future written agreement regarding this or
any other indebtedness of Borrower to Lender;
(c) provides or causes any false or misleading signature or
representation to be provided to Lender;
(d) sells, conveys, or transfers rights in any collateral securing this
Note without the written approval of Lender; or destroys, loses or
damages such collateral in any material respect; or subjects such
collateral to seizure, confiscation or condemnation;
(e) has a garnishment, judgment, tax levy, attachment or lien entered
or served against Borrower, any guarantor, or any third party
pledging collateral to secure this Note or any of their property;
(f) dies, becomes legally incompetent, is dissolved or terminated,
ceases to operate its business, becomes insolvent, makes an
assignment for the benefit of creditors, fails to pay debts as they
become due, or becomes the subject of any bankruptcy, insolvency
or debtor rehabilitation proceeding;
(g) fails to provide Lender evidence of satisfactory financial
condition;
(h) has a majority of its outstanding voting securities sold,
transferred or conveyed to any person or entity other than any
person or entity that has the majority ownership as of the date of
this execution of this Note; or
(i) causes Lender to deem itself insecure due to a significant decline
in the value of any real or personal property securing payment of
this Note, or Lender in good faith, believes the prospect of
payment or performance is impaired.
2. RIGHTS OF LENDER ON DEFAULT. If there is an Event of Default under this
Note, Lender will be entitled to exercise one or more of the following remedies
without notice or demand (except as required by law):
(a) to declare the principal amount plus accrued interest under this
Note and all other present and future obligations of Borrower
immediately due and payable in full, such acceleration to be
automatic and immediate if the Event of Default is a filing under
the Bankruptcy Code;
(b) to collect the outstanding obligations of Borrower with or without
resorting to judicial process;
(c) to cease making advances under this Note or any other agreement
between Borrower and Lender;
(d) to take possession of any collateral in any manner permitted by law;
(e) to require Borrower to deliver and make available to Lender any
collateral at a place reasonably convenient to Borrower and Lender;
(f) to sell, lease or otherwise dispose of any collateral and collect
any deficiency balance with or without resorting to legal process;
(g) to set-off Borrower's obligations against any amounts due to
Borrower including, but not limited to, monies, instruments, and
deposit accounts maintained with Lender; and
(h) to exercise all other rights available to Lender under any other
written agreement or applicable law.
Lenders's rights are cumulative and may be exercised together, separately, and
in any order. Lender's remedies under this paragraph are in addition to those
available at common law, including, but not limited to, the right of set-off.
3. DEMAND FEATURE. [X] If checked, this Note contains a demand feature.
Lender's right to demand payment, at any time, and from time to time, shall be
in Lender's sole and absolute discretion, whether or not any default has
occurred.
4. FINANCIAL INFORMATION. Borrower will at all times keep proper books and
account in which full, true and correct entries shall be made in accordance
with generally accepted accounting principles and will deliver to Lender,
within ninety (90) days after the end of each fiscal year of Borrower, a copy
of the annual financial statements of Borrower relating to such fiscal year,
such statements to include (i) the balance sheet of Borrower as at the end of
such fiscal year and (ii) the related income statement, statement of retained
earnings and statement of cash flow of Borrower for such fiscal year, prepared
by such certified public accountants as may be reasonably satisfactory to
Lender. Borrower also agrees to deliver to Lender within fifteen (15) days
after filing same, a copy of Borrower's income tax returns and also, from time
to time, such other financial information with respect to Borrower as Lender
may request.
5. MODIFICATION AND WAIVER. The modification or waiver of any of Borrower's
obligations or Lender's rights under this Note must be contained in a writing
signed by Lender. Lender may perform any of Borrower's obligations or delay or
fail to exercise any of its rights without causing a waiver of those
obligations or rights. A waiver on one occasion will not constitute a waiver
on any other occasion. Borrower's obligations under this Note shall not be
affected if Lender amends, compromises, exchanges, fails to exercise, impairs
or releases any of the obligations belonging to any co-borrower or guarantor or
any of its rights against any co-borrower, guarantor, the collateral or any
other property securing the obligations.
6. SEVERABILITY. If any provision of this Note is invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
7. ASSIGNMENT. Borrower agrees not to assign any of Borrower's rights,
remedies or obligations described in this Note without the prior written
consent of Lender, which consent may be withheld by Lender in its sole
discretion. Borrower agrees that Lender is entitled to assign some or all of
its rights and remedies described in this Note without notice to or the prior
consent of Borrower.
8. NOTICE. Any notice or other communication to be provided to Borrower or
Lender under this Note shall be in writing and sent to the parties at the
addresses described in this Note or such other address as the parties may
designate in writing from time to time.
9. APPLICABLE LAW. This Note shall be governed by the laws of the state
indicated in Lender's address. Unless applicable law provides otherwise,
Borrower consents to the jurisdiction of any court located in such state
selected by Lender, in its discretion, in the event of any legal proceeding
under this Note.
10. COLLECTION COSTS. If the original principal amount of this Note exceeds
$300, and if Lender hires an attorney who is not its salaried employee to
collect any amount due under this Note or enforce any right or remedy of
Lender, Borrower agrees to pay Lender's reasonable expenses and collection
costs, including reasonable attorneys' fees not exceeding 15% of the unpaid
debt after default.
11. MISCELLANEOUS. This Note is being executed primarily for commercial,
agricultural, or business purposes. Borrower and Lender agree that time is of
the essence. Borrower agrees to make all payments to Lender at any address
designated by Lender and in lawful United States currency. Borrower and any
person who endorses this Note waives presentment, demand for payment, notice of
dishonor and protest and further waives any right to require Lender to proceed
against anyone else before proceeding against Borrower or said person. All
references to Borrower in this Note shall include all of the parties signing
this Note, and this Note shall be binding upon the heirs, successors and
assigns of Borrower and Lender. If there is more than one Borrower their
obligations under this Note shall be joint and several. This Note represents
the complete and integrated understanding between Borrower and Lender regarding
the terms hereof.
12. JURY TRIAL WAIVER. BORROWER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS NOTE OR THE COLLATERAL
SECURING THIS NOTE.
13. ADDITIONAL TERMS.
9
BORROWER
Cybex Computer Products Corporation
[FIRST COMMERCIAL BANK LOGO]
SCHEDULE OF FEES
CHARGES OR
DISBURSEMENTS
First Commercial Bank of Huntsville
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
(000) 000-0000 "LENDER"
ADDRESS
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone No. Identification No.
(000) 000-0000 00-0000000
-----------------------------------------------------------------------------------------------------------------------
OFFICER INTEREST MATURITY CUSTOMER LOAN
IDENTIFICATION RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
-----------------------------------------------------------------------------------------------------------------------
LKS VARIABLE $5,000,000.00 07/01/97 DEMAND
-----------------------------------------------------------------------------------------------------------------------
Borrower has borrowed money from Lender indicated above pursuant to the above referenced Promissory Note or Agrement.
Borrower acknowledges that the following fees, charges and disbursements have been made or assessed in connection with
the Note or Agreement.
LINE OF CREDIT AMOUNT: $ 5,000,000.00
-----------------
AMOUNT DISBURSED TO BORROWER FROM LINE OF CREDIT: $ N/A
-----------------
AMOUNT DRAWN TO PAY OR CREDIT TO BORROWER'S ACCOUNTS WITH LENDER:
ACCOUNT NUMBER CREDITED: $
-----------------
ACCOUNT NUMBER CREDITED:
-----------------
ACCOUNT NUMBER CREDITED:
-----------------
ACCOUNT NUMBER CREDITED:
-----------------
ACCOUNT NUMBER CREDITED:
-----------------
AMOUNT OF LOAN PROCEEDS PAID TO OTHERS ON THE BORROWER'S BEHALF:
PAYEE: $
-----------------
PAYEE:
-----------------
PAYEE:
-----------------
PAYEE:
-----------------
PAYEE:
-----------------
PAYEE:
-----------------
PAYEE:
-----------------
PAYEE:
-----------------
PAYEE:
-----------------
PAYEE:
-----------------
TOTAL PROCEEDS DISBURSED: $ N/A
-----------------
PAID IN CASH DEDUCTED FROM LINE
AMOUNT PAID TO PUBLIC OFFICIALS: $ $
------------- -----------------
AMOUNT PAID TO INSURANCE COMPANIES:
------------- -----------------
AMOUNT PAID TO APPRAISERS:
------------- -----------------
AMOUNT PAID TO CREDIT REPORTING AGENCIES:
------------- -----------------
TITLE EXAMINATION:
------------- -----------------
SETTLEMENT/CLOSING FEE:
------------- -----------------
TITLE INSURANCE BINDER:
------------- -----------------
ATTORNEY:
------------- -----------------
DOCUMENT PREPARATION FEE:
------------- -----------------
NOTARY:
------------- -----------------
SURVEYOR:
------------- -----------------
PEST INSPECTOR:
------------- -----------------
ABSTRACT/TITLE SEARCH:
------------- -----------------
TITLE INSURER:
------------- -----------------
CITY/COUNTY TAX DEED/MORTGAGE:
------------- -----------------
STATE TAX DEED/MORTGAGE:
------------- -----------------
HAZARD INSURANCE PREMIUM:
------------- -----------------
FLOOD INSURANCE PREMIUM:
------------- -----------------
------------- -----------------
------------- -----------------
------------- -----------------
------------- -----------------
------------- -----------------
Loan Origination Fee
------------- -----------------
Points/Discount
------------- -----------------
Lender's Inspection Fee
------------- -----------------
Assumption Fee
------------- -----------------
------------- -----------------
Loan Processing Fee 50.00
------------- -----------------
TOTAL PREPAID FINANCE CHARGE AND FEES PAID IN CASH: $ 50.00
------------- -----------------
TOTAL PREPAID FINANCE CHARGES AND FEES DEDUCTED FROM LINE: $ N/A
-----------------
BALANCE REMAINING TO BE DRAWN ON LINE: $ 5,000,000.00
-----------------
--------------------------------------------------------------------------------------------------
Dated: July 01, 1997
BORROWER: Cybex Computer Products Corporation BORROWER:
By: /S/ Xxxxx X. Xxxxx
---------------------------------------------- ---------------------------------------------
Xxxxx X. Xxxxx
SVP, CFO, & Treasurer
BORROWER: BORROWER:
---------------------------------------------- ---------------------------------------------
BORROWER: BORROWER:
---------------------------------------------- ---------------------------------------------
BORROWER: BORROWER:
---------------------------------------------- ---------------------------------------------
10
[FIRST COMMERCIAL LOGO]
COMMERCIAL
SECURITY
AGREEMENT
First Commercial Bank of Huntsville
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000 "LENDER"
---------------------------------------------------------------------------------------------
BORROWER OWNER
Cyber Computer Products Corporation Cyber Computer Products Corporation
ADDRESS ADDRESS
0000 Xxxxxxxx Xxxxx 0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
TELEPHONE NO. IDENTIFICATION NO. TELEPHONE NO. IDENTIFICATION NO.
(000) 000-0000 00-0000000 (000) 000-0000 00-0000000
---------------------------------------------------------------------------------------------
1. SECURITY INTEREST. For good and valuable consideration, Owner grants to
Lender identified above a continuing security interest in the Collateral
described below to secure the Obligations described in this Agreement.
2. OBLIGATIONS. The collateral shall secure the payment and performance of
all of Borrower's and Owner's present and future, joint and/or several, direct
and indirect, absolute and contingent, express and implied indebtedness to
Lender under any promissory note or agreement described below, including all
future advances made by Lender to Borrower or Owner and expenditures incurred
by Lender upon the occurrence of an Event of Default (collectively
"Obligations"):
a. this Agreement and/or the following promissory notes and agreements:
--------------------------------------------------------------------------------------
INTEREST PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN
RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
--------------------------------------------------------------------------------------
VARIABLE $ 5,000,000.00 07/01/97 DEMAND
--------------------------------------------------------------------------------------
b. [X] all other presently existing or future, evidence of
indebtedness, obligations, agreements, instruments, guaranties or
otherwise of Borrower or Owner to Lender (WHETHER INCURRED FOR THE
SAME OR DIFFERENT PURPOSES THAN THE FOREGOING); and
c. all renewals, extensions, amendments, modifications, replacements
or substitutions to any of the foregoing.
3. COLLATERAL. All of Owner's rights, title and interest in the following
described property whether now or hereafter existing or now owned or hereafter
acquired by Owner and wherever located shall constitute the "Collateral:"
[X] All accounts and contract rights including, but not limited to, any
accounts and contract rights described on Schedule A attached hereto
and incorporated herein by this reference;
[ ] All chattel paper including, but not limited to, any chattel paper
described on Schedule A attached hereto and incorporated herein by
this reference;
[ ] All documents including, but not limited to, any documents
described on Schedule A attached hereto and incorporated herein by
this reference;
[ ] All equipment, including, but not limited to, any equipment
described on Schedule A attached hereto and incorproated herein
by this reference;
[ ] All fixtures, including, but not limited to, any fixtures described
on Schedule A and located or to be located on the real property
described on Schedule B attached hereto and incorporated herein by
this reference;
[ ] All general intangibles including, but not limited to, any general
intangibles described on Schedule A attached hereto and
incorporated herein by this reference;
[ ] All instruments including, but not limited to, any instruments
described on Schedule A attached hereto and incorporated herein by
this reference;
[X] All inventory including, but not limited to, any inventory described
on Schedule A attached hereto and incorporated herein by this
reference;
[ ] All minerals or the like and accounts resulting from sales at the
wellhead or minehead located on or related to the real property
described on Schedule B attached hereto and incorporated herein by
this reference;
[ ] All standing timber which is to be cut and removed under a
conveyance or contract for sale located on the real property
described on Schedule B attached hereto and incorporated herein by
this reference;
[ ] Other;
THE PROPERTY DESCRIBED ON SCHEDULE A;
All monies, instruments, and savings, checking or other accounts of Owner
(excluding XXX, Xxxxx, trust accounts, and other accounts subject to tax
penalties if so assigned) that are now or in the future in Lender's custody or
control;
All monies or instruments pertaining to the Collateral described above;
All accessions, accessories, additions, amendments, attachments, modifications,
replacements and substitutions to any of the above;
All proceeds and products of any of the above;
All policies of insurance pertaining to any of the above as well as any
proceeds and unearned premiums pertaining to such policies; and
All books and records pertaining to any of the above.
11
4. OWNER'S TAXPAYER IDENTIFICATION. Owner's social security number or
federal taxpayer identification number is: 000000000.
5. RESIDENCY/LEGAL STATUS. [ ] Owner is an individual and a resident of the
state of: _____________________________________. [ X ] Owner is a Corporation
duly organized, validly existing and in good standing under the laws of the
state of: Alabama.
6. REPRESENTATIONS, WARRANTIES, AND COVENANTS. Owner represents, warrants
and convenants to Lender that:
(a) Owner is and shall remain the sole owner of the Collateral;
(b) Neither Owner, nor, to the best of Owner's knowledge, has any other
party used, generated, released, discharged, stored, or disposed of
any hazardous waste, toxic substance, or hazardous material or
transported any such material across the property except as allowed by
and in accordance with applicable federal, state and local law and
regulation. Owner shall not commit or permit such actions to be taken
in the future. The term "Hazardous Materials" shall mean any
substance, material, or waste which is or becomes regulated by any
governmental authority including, but not limited to, (i) petroleum;
(ii) asbestos; (iii) polychlorinated biphenyls; (iv) those substances,
materials or wastes designated as a "hazardous substance" pursuant to
Section 311 of the Clean Water Act or listed pursuant to Section 307
of the Clean Water Act or any amendments or replacements of these
statutes; (v) those substances, materials or wastes defined as a
"hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act of any amendments or replacements to
that statute; (vi) those substances, materials or wastes defined as
a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liabiity Act, or any
amendments or replacements to that statute. Owner is in compliance in
all respects with all applicable federal, state and local laws and
regulations, including, without limitation, those relating to
"Hazardous Materials", as defined herein, and other environmental
matters (the "Environmental Laws") and neither the federal government
nor any other governmental or quasi governmental entity has filed a
lien on the Collateral, nor are there any pending or threatened
governmental, judicial or administrative actions with respect to
environmental matters, which involve the Collateral;
(c) Owner's chief executive office, principal place of business, office
where its business records relating to the Collateral or residence is
the address identified above. The Collateral is located and has been
located during the four (4) month period prior to the date hereof, at
the address described above or any address described on Schedule C
attached hereto and incorporated herein by this reference. Owner
shall immediately advise Lender in writing of any change in or
addition to the foregoing addresses;
(d) Owner shall not become a party to any restructuring of its form of
business or participate in any consolidation, merger, liquidation or
dissolution without Lender's prior written consent;
(e) Owner shall notify Lender of the nature of any intended change of
Owner's name, or the use of any trade name, and the effective date of
such change;
(f) The Collateral is and shall at all times remain free of all tax and
other liens, security interests, encumbrances and claims of any kind
except for those belonging to Lender and those described on Schedule D
attached hereto and incorporated herein by this reference. Without
waiving the Event of Default as a result thereof, Owner shall take any
action and execute any document needed to discharge any liens,
security interests, encumbrances and claims not described on Schedule
D;
(g) Owner shall defend the Collateral against all claims and demands of
all persons at any time claiming any interest therein;
(h) All of the goods, fixtures, minerals or the like, and standing timber
constituting the Collateral are and shall be located at Owner's
executive offices, places of business, residence and domiciles
specifically described in this Agreement. Owner shall not change the
location of any Collateral without the prior written consent of
Lender;
(i) Owner shall provide Lender with possession of all chattel paper and
instruments constituting the Collateral, and Owner shall promptly xxxx
all chattel paper, instruments, and documents constituting the
Collateral to show that the same are subject to Lender's security
interest;
(j) All of Owner's accounts or contract rights; chattel paper; documents;
general intangibles; instruments; and federal, state, county, and
municipal government and other permits and licenses; trusts, liens,
contracts, leases, and agreements constituting the Collateral are and
shall be valid, genuine and legally enforceable obligations and rights
belonging to Owner against one or more third parties and not subject
to any claim, defense, set-off or counterclaim of any kind;
(k) Owner shall not amend, modify, replace, or substitute any account or
contract right; chattel paper; document; general intangible; or
instrument constituting the Collateral without the prior written
consent of Lender;
(l) Owner has the right and is duly authorized to enter into and perform
its obligations under this Agreement. Owner's execution and
performance of these obligations do not and shall not conflict with
the provisions of any statute, regulation, ordinance, rule of law,
contract or other agreement which may now or hereafter be binding on
Owner;
(m) No action or proceeding is pending against Owner which might result
in any material or adverse change in its business operations or
financial condition or materially affect the Collateral;
(n) Owner has not violated and shall not violate any applicable federal,
state, county or municipal statute, regulation or ordinance (including
but not limited to those governing Hazardous Materials) which may
materially and adversely affect its business operations or financial
condition of the Collateral;
(o) Owner shall, upon Lender's request, deposit all proceeds of the
Collateral into an account or accounts maintained by Owner or Lender
at Lender's institution;
(p) Owner will, upon receipt, deliver to Lender as additional Collateral
all securities distributed on account of the Collateral such as stock
dividends and securities resulting from stock splits, reorganizations
and recapitalizations;
(q) Owner agrees to the terms of the Obligations and to the terms of any
renewals, extensions, amendments, modifications, replacements or
substitutions of the Obligations; Lender may enter into agreements in
the future with Borrower which, if this Agreement so provides, will
become Obligations secured by the Collateral described in this
Agreement; property other than the Collateral may also secure the
Obligations, that Lender shall have no obligation to exercise its
rights against such property prior to exercising its rights against
the Collateral, that Lender may accept substitutions or exchanges for
any such property, and that Lender may release its security interest
in such property at any time; parties other than Borrower may be or
may become obligated under the Obligations; and
(r) This Agreement and the obligations described in this Agreement are
executed and incurred for business and not consumer purposes.
7. SALE OF COLLATERAL. Owner shall not assign, convey, lease, sell or
transfer any of the Collateral to any third party without the prior written
consent of Lender except for sales of inventory to buyers in the ordinary
course of business.
8. FINANCING STATEMENTS AND OTHER DOCUMENTS. Owner shall at any time and
from time to time take all actions and execute all documents required by Lender
to attach, perfect and maintain Lender's security interest in the Collateral
and establish and maintain Lender's right to receive the payment of the
proceeds of the Collateral including, but not limited to, executing any
financial statements, fixture filings, continuation statements, notices of
security interest and other documents required by the Uniform Commercial Code
and other applicable law. Owner shall pay the costs of filing such documents
in all offices wherever filing or recording is deemed by Lender to be necessary
or desirable. Lender shall be entitled to perfect its security interest in the
Collateral by filing carbon, photographic or other reproductions of this
Agreement and/or the aforementioned documents with any authority required by
the Uniform Commercial Code or other applicable law. Owner authorizes Lender
to execute and file any financing statements, as well as extensions, renewals
and amendments of financing statements in such form as Lender may require to
perfect and maintain perfection of any security interest granted in this
Agreement.
9. INQUIRIES AND NOTIFICATION TO THIRD PARTIES. Owner hereby authorizes
Lender to contact any third party and make any inquiry pertaining to Owner's
financial condition or the Collateral. In addition, Lender is authorized to
provide oral or written notice of its security interest in the Collateral to
any third party.
10. LOCK BOX, COLLATERAL ACCOUNT. If Lender so requests at any time (whether
or not Owner is in default of this Agreement), Owner will direct each of its
account debtors to make payments due under the relevant account or chattel
paper directly to a special lock box to be under the control of Lender. Owner
hereby authorizes and directs Lender to deposit into a special collateral
account to be established and maintained with Lender all checks, drafts and
cash payments received in the lock box. All deposits in the collateral account
shall constitute proceeds of Collateral and shall not constitute payment of any
Obligation. At its option, Lender may, at any time, apply finally collected
funds on deposit in the collateral account to the payment of the Obligations in
such order of application as Lender may determine, or permit Owner to withdraw
all or any part of the balance on deposit in the collateral account. If a
collateral account is so established, Owner agrees that Owner will promptly
deliver to Lender, for deposit into the collateral account, all payments on
accounts and chattel paper received by Owner. All such payments shall be
delivered to Lender in the form received (except for Owner's endorsement if
necessary). Until so deposited, all payments on accounts and chattel paper
received by Owner shall be held in trust by Owner for and as the property of
Lender and shall not be commingled with any funds or property of Owner.
11. COLLECTION OF INDEBTEDNESS FROM THIRD PARTIES. Lender shall be entitled
to notify, and upon the request of Lender, owner shall notify any account
debtor or third party (including, but not limited to, insurance companies) to
pay any indebtedness or obligation owing to Owner and constituting the
Collateral (collectively "Indebtedness") to Lender whether or not a default
exists under this Agreement. Owner shall diligently collect the Indebtedness
owing to Owner from its account debtors and other third parties until the
giving of such notification. In the event that Owner possesses or receives
possession of any instruments or other remittances with respect to the
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Indebtedness following the giving of such notification or if the instruments or
other remittances constitute the prepayment of any Indebtedness or the payment
of any insurance proceeds, Owner shall hold such instruments and other
remittances in trust for Lender apart from its other property, endorse the
instruments and other remittances to Lender, and immediately provide Lender
with possession of the instruments and other remittances. Lender shall be
entitled, but not required, to collect (by legal proceedings or otherwise),
extend the time for payment, compromise, exchange or release any obligor or
collateral, or otherwise settle any of the Indebtedness whether or not an event
of default exists under this Agreement. Lender shall not be liable to Owner
for any action, error, mistake, omission or delay pertaining to the actions
described in this paragraph or any damages resulting therefrom.
12. POWER OF ATTORNEY. Owner hereby appoints Lender as its attorney-in-fact
to endorse Owner's name on all instruments and other remittances payable to
Owner with respect to the Indebtedness, including any items received by Lender
in any lockbox account, or other documents pertaining to Lender's actions in
connection with the Indebtedness. In addition, Lender shall be entitled, but
not required, to perform any action or execute any document required to be
taken or executed by Owner under this Agreement. Lender's performance of such
action or execution of such documents shall not relieve Owner from any
obligation or cure any default under this Agreement. The powers of attorney
described in this paragraph are coupled with an interest and are irrevocable.
13. USE AND MAINTENANCE OF COLLATERAL. Owner shall use the Collateral solely
in the ordinary course of its business, for the usual purposes intended by the
manufacturer (if applicable), with due care, and in compliance with the laws,
ordinances, regulations, requirements and rules of all federal, state, county
and municipal authorities including environmental laws and regulations and
insurance policies. Owner shall not make any alterations, additions or
improvements to the Collateral without the prior written consent of Lender.
Owner shall ensure that Collateral which is not now a fixture does not become a
fixture. Without limiting the foregoing, all alterations, additions and
improvements made to the Collateral shall be subject to the security interest
belonging to Lender, shall not be removed without the prior written consent of
Lender, and shall be made at Owner's sole expense. Owner shall take all
actions and make any repairs or replacements needed to maintain the Collateral
in good condition and working order.
14. LOSS OR DAMAGE. Owner shall bear the entire risk of any loss, theft,
destruction or damage (collectively "Loss or Damage") to all or any part of the
Collateral. In the event of any Loss or Damage, owner will either restore the
Collateral to its previous condition, replace the Collateral with similar
property acceptable to Lender in its sole discretion, or pay or cause to be
paid to Lender the decrease in the fair market value of the affected Collateral.
15. INSURANCE. If the original amount of the Obligations is $300 or more,
exclusive of the charges for insurance, and the value of the Collateral to be
insured is $300 or more ($500 or more if the collateral is a motor vehicle),
the Collateral will be kept insured for its full value against all loss or
damage caused by fire, collision, theft or other casualty. If the Collateral
consists of a motor vehicle having a retail value of at least $500, Owner will
obtain comprehensive and collision coverage in amounts at least equal to the
actual cash value of the vehicle with deductibles not to exceed $ n/a. OWNER
HAS THE RIGHT TO PROVIDE SUCH INSURANCE THROUGH AN EXISTING POLICY OR A POLICY
INDEPENDENTLY OBTAINED AND PAID FOR BY OWNER, subject to the right of the
Lender to decline the insurance offered by Owner for reasonable cause before
credit is extended. Owner shall assign to Lender all its rights to receive
proceeds of insurance not exceeding the amount owed under the obligations
described above, and direct the insurer to pay all proceeds directly to
Lender. The insurance policies shall require the insurance company to provide
Lender with at least 10 days written notice before such policies are altered
or cancelled in any manner. The insurance policies shall name Lender as a loss
payee and provide that no act or omission of Owner or any other person shall
affect the right of Lender to be paid the insurance proceeds pertaining to the
loss or damage of the Collateral. In the event Owner fails to acquire or
maintain insurance, Lender (after providing notice as may be required by law)
may in its discretion procure appropriate insurance coverage upon the
Collateral and charge the insurance cost as an advance of principal under the
promissory note. Owner shall furnish Lender with evidence of insurance
indicating the required coverage. Lender may act as attorney-in-fact for Owner
in making and settling claims under insurance policies, cancelling any policy
or endorsing Owner's name on any draft or negotiable instrument drawn by any
insurer
16. INDEMNIFICATION. Lender shall not assume or be responsible for the
performance of any of Owner's obligations with respect to the Collateral under
any circumstances. Owner shall immediately provide Lender with written notice
of and hereby indemnifies and holds Lender and its shareholders, directors,
officers, employees and agents harmless from all claims, damages, liabilities
(including attorneys' fees and legal expenses), causes of action, actions,
suits and other legal proceedings (collectively "Claims") pertaining to its
business operations or the Collateral including, but not limited to, those
arising from Lender's performance of Owner's obligations with respect to the
Collateral or claims involving Hazardous Materials. Owner, upon the request of
Lender, shall hire legal counsel to defend Lender from such Claims, and pay the
attorneys' fees, legal expenses and other costs to the extent permitted by
applicable law, incurred in connection therewith. In the alternative, Lender
shall be entitled to employ its own legal counsel to defend such Claims at
Owner's cost.
17. TAXES AND ASSESSMENTS. Owner shall execute and file all tax returns and
pay all taxes, licenses, fees and assessments relating to its business
operations and the Collateral (including, but not limited to, income taxes,
personal property taxes, withholding taxes, sales taxes, use taxes, excise
taxes and workers' compensation premiums) in a timely manner.
18. INSPECTION OF COLLATERAL AND BOOKS AND RECORDS. Owner shall allow Lender
or its agents to examine, inspect and make abstracts and copies of the
Collateral and Owner's books and records pertaining to Owner's business
operations and financial condition or the Collateral during normal business
hours. Owner shall provide any assistance required by Lender for these
purposes. All of the signatures and information pertaining to the Collateral
or contained in the books and records shall be genuine, true, accurate and
complete in all respects. Owner shall note the existence of Lender's security
interest in its books and records pertaining to the Collateral.
19. EVENTS OF DEFAULT. An Event of Default will occur under this Agreement in
the event that Owner, Borrower or any guarantor:
(a) fails to make any payment under this Agreement or any other
indebtedness to Lender when due;
(b) fails to perform any obligation or breaches any warranty or covenant
to Lender contained in this Agreement or any other present or future
written agreement regarding this or any other indebtedness to Lender;
(c) provides or causes any false or misleading signature or representation
to be provided to Lender;
(d) sells, conveys, or transfers rights in any Collateral without the
written approval of Lender; destroys, loses or damages such Collateral
in any material respect; or subjects such Collateral to seizure,
confiscation, or condemnation;
(e) seeks to revoke, terminate or otherwise limit its liability under any
continuing guaranty;
(f) has a garnishment, judgment, tax levy, attachment or lien entered or
served against Owner, Borrower, or any guarantor, or any of their
property including the Collateral;
(g) dies, becomes legally incompetent, is dissolved or terminated, ceases
to operate its business, becomes insolvent, makes an assignment for
the benefit of creditors, fails to pay any debts as they become due,
or becomes the subject of any bankruptcy, insolvency or debtor
rehabilitation proceeding;
(h) allows the Collateral to be used by anyone to transport or store
goods, the possession, transportation, or use of which, is illegal;
(i) fails to provide Lender evidence of satisfactory financial condition;
(j) has a majority of its outstanding voting securities sold, transferred
or conveyed to any person or entity other than any person or entity
that has the majority ownership as of the date of the execution of
this Agreement; or
(k) causes Lender to deem itself insecure due to a significant decline in
the value of any of the Collateral or Lender, in good faith, believes
the prospect of payment or performance in impaired.
20. RIGHTS OF LENDER ON EVENT OF DEFAULT. Upon the occurrence of an Event of
Default under this Agreement, Lender shall be entitled to exercise one or more
of the following remedies without notice or demand (except as required by law):
(a) to declare the Obligations immediately due and payable in full, such
acceleration shall be automatic and immediate if the Event of Default
is a filing under the Bankruptcy Code;
(b) to collect the outstanding Obligations with or without resorting to
judicial process;
(c) to change Owner's mailing address, open Owner's mail, and retain any
instruments or other remittances constituting the Collateral contained
therein;
(d) to take possession of any Collateral in any manner permitted by law;
(e) to apply for and obtain, without notice and upon ex parte application,
the appointment of a receiver for the Collateral without regard to
Owner's financial condition or solvency, the adequacy of the
Collateral to secure the payment or performance of the obligations, or
the existence of any waste to the Collateral;
(f) to require Owner to deliver and make available to Lender any
Collateral at a place reasonably convenient to Owner and Lender;
(g) to sell, lease or otherwise dispose of any Collateral and collect any
any deficiency balance with or without resorting to legal process;
(h) to set-off Owner's obligations against any amounts due to Owner
including, but not limited to, monies, instruments, and deposit
accounts maintained with Lender; and
(i) to exercise all other rights available to Lender under any other
written agreement or applicable law.
Lender's rights are cumulative and may be exercised together, separately, and
in any order. Unless the Collateral is perishable, threatens to decline
speedily in value or is of a type customarily sold on a recognized market,
Lender will provide reasonable notification of the time and place of any sale or
intended disposition as required under the Uniform Commercial Code. If the
Collateral consists of securities, Lender shall be entitled to transfer the
securities into the name of Lender or its designee and to vote the securities.
Lender shall be authorized to notify the issuer of the securities to remit any
related dividends, interest and securities resulting from stock splits,
reorganizations and capitalizations directly to Lender or its designee. In the
event that Lender institutes an action to recover any Collateral or seeks
recovery of any Collateral by way of a prejudgment remedy in an action against
Owner, Owner waives the posting of any bond which might otherwise be required.
Upon default, Owner shall segregate all proceeds of Collateral and hold such
proceeds in trust for Lender. Lender's remedies under this paragraph are in
addition to those available at common law, such as offset.
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21. APPLICATIONS OF PAYMENTS. Whether or not a default has occurred under this
Agreement, all payments made by or on behalf of Owner and all credits due to
Owner from the disposition of the Collateral or otherwise may be applied against
the amounts paid by Lender (including attorneys' fees and legal expenses) in
connection with the exercise of its rights or remedies described in this
Agreement and any interest thereon and then to the payment of the remaining
Obligations in whatever order Lender chooses.
22. REIMBURSEMENT OF AMOUNTS EXPENDED BY LENDER. Owner shall reimburse Lender
for all amounts (including attorneys' fees and legal expenses) expended by
Lender in the performance of any action required to be taken by Owner or the
exercise of any right or remedy belonging to Lender under this Agreement,
together with interest thereon at the lower of the highest rate described in
any promissory note or credit agreement executed by Borrower or Owner or the
highest rate allowed by law from the date of payment until the date of
reimbursement. These sums shall be included in the definition of Obligations,
shall be secured by the Collateral identified in this Agreement and shall be
payable upon demand. Lender has no duty to take any action to protect the value
of the Collateral or to exercise any rights of the Owner with respect to the
Collateral.
23. ASSIGNMENT. Owner shall not be entitled to assign any of its rights,
remedies or obligations described in this Agreement without the prior written
consent of Lender. Consent may be withheld by Lender in its sole discretion.
Lender shall be entitled to assign some or all of its rights and remedies
described in this Agreement without notice to or the prior consent of Owner in
any manner.
24. MODIFICATION AND WAIVER. The modification or waiver of any of Owner's
Obligations or Lender's rights under this Agreement must be contained in a
writing signed by Lender. Lender may perform any of Owner's Obligations or
delay or fail to exercise any of its rights without causing a waiver of those
Obligations or rights. A waiver on one occasion shall not constitute a waiver
on any other occasion. Owner's Obligations under this Agreement shall not be
affected if Lender amends, compromises, exchanges, fails to exercise, impairs
or releases any of the obligations belonging to any Owner or third party or any
of its rights against any Owner, third party, Collateral or any other property
securing the Obligations.
25. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of Owner and Lender and their respective successors, assigns,
trustees, receivers, administrators, personal representatives, legatees, and
devisees.
26. NOTICES. Any notice or other communication to be provided under this
Agreement shall be in writing and sent to the parties at the addresses
described in this Agreement or such other address as the parties may designate
in writing from time to time.
27. SEVERABILITY. If any provision of this Agreement violates the law or is
unenforceable, the rest of the Agreement shall remain valid.
28. APPLICABLE LAW. This Agreement shall be governed by the laws of the state
indicated in Lender's address. Unless applicable law provides otherwise, Owner
consents to the jurisdiction of any court located in such state selected by
Lender in the event of any legal proceeding under this Agreement.
29. COLLECTION COSTS. If the original amount of the Obligations exceeds $300,
and if Lender hires an attorney who is not its salaried employee to collect any
amount due under the Obligations or enforce any right or remedy of Lender under
this Agreement, Owner agrees to pay Lender's reasonable expenses and collection
costs, including reasonable attorneys' fees not exceeding 15% of the unpaid
debt after default.
30. MISCELLANEOUS. This Agreement is executed for commercial purposes. Owner
shall supply information regarding Owner's business operations and financial
condition or the Collateral in the form and manner as required by Lender from
time to time. All information furnished by Owner to Lender shall be true,
accurate and complete in all respects. Owner and Lender agree that time is of
the essence. Owner waives presentment, demand for payment, notice of dishonor
and protest except as required by law. All references to Owner in this
Agreement shall include all parties signing below except Lender. This Agreement
shall be binding upon the heirs, successors and assigns of Owner and Lender. If
there is more than one Owner, their obligations under this Agreement shall be
joint and several. This Agreement shall remain in full force and effect until
Lender provides Owner with written notice of termination. This Agreement
represents the complete and integrated understanding between Owner and Lender
regarding the terms hereof.
31. WAIVER OF JURY TRIAL. LENDER AND OWNER HEREBY WAIVE ANY RIGHT TO A TRIAL
BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS SECURITY
AGREEMENT.
32. ADDITIONAL TERMS:
OWNER ACKNOWLEDGES THAT OWNER HAS READ, UNDERSTANDS, AND AGREES TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT. OWNER ACKNOWLEDGES RECEIPT OF AN EXACT COPY
OF THIS AGREEMENT.
Dated: July 01, 1988
LENDER: First Commercial Bank of Huntsville
By:/s/Xxxxx X. Xxxxx
-----------------------------------------
Xxxxx X. Xxxxx
Vice President
OWNER: Cybex Computer Products OWNER:
Corporation
By: /s/ Xxxxx X. Xxxxx
--------------------------- --------------------------------------------
Xxxxx X. Xxxxx
Chief Financial Officer
OWNER: OWNER:
------------------------------ --------------------------------------------
OWNER: OWNER:
------------------------------ --------------------------------------------
OWNER: OWNER:
------------------------------ --------------------------------------------
Page 4 of 5
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SCHEDULE A
SCHEDULE B
Record Owner Name:
SCHEDULE C
SCHEDULE D
