<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB/A
AMENDMENT NO. 1
(Mark One)
(X) Quarterly Report under Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the quarterly period ended March 31, 1999
( ) Transition Report under Section 13 or 15(d) of the Exchange Act
For the transition period from __________________ to _________________.
Commission File Number: 000-22251
BOBBY ALLISON WIRELESS CORPORATION f/k/a 2CONNECT EXPRESS, INC.
---------------------------------------------------------------
(Name of Small Business Issuer in Its Charter)
<TABLE>
<S> <C>
Florida 65-0674664
- ----------------------- ------------------------------------
(State of Incorporation (I.R.S. Employer Identification No.)
or Organization)
2055 Lake Avenue, S.E., Suite A, Largo, Florida 33771
- -------------------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, Par Value $.01 Per Share
Check whether the issuer: (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Exchange Act during the past 12 months (or
for such shorter period that the Company was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days.
Yes No X
--- ---
Check whether the issuer has filed all documents and reports required
to be filed by Section 12, 13 or 15(d) of the Exchange Act after the
distribution of securities under a plan confirmed by a court.
Yes No X
--- ---
State the number of shares outstanding of each of the issuer's classes
of common equity, as of the latest practicable date: 480,000 shares of Common
Stock, par value $.01 per share, as of May 15, 1999.
<PAGE> 2
PREFACE
The purpose of this Amendment #1 to the Bobby Allison Wireless
Corporation (the "Company") Form 10-QSB is, in accordance with the
representations in the Item 6(a) regarding the Exhibits of the initial filing,
to attach the certain agreements relating to its bank financing, including a
$350,000 term loan and a $500,000 revolving credit line, each of which were
consummated on February 24, 1999. Accordingly, the entire Item 6 relating to
exhibits is included.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
<TABLE>
<CAPTION>
<S> <C> <C>
(a) Exhibits
10.28 (a) Promissory Note between Bobby Allison Wireless Corporation and SouthTrust
Bank, National Association, in the amount of $350,000 dated February 24,
1999
10.28 (b) Business Loan Agreement between Bobby Allison Wireless Corporation and
SouthTrust Bank, National Association, dated February 24, 1999
10.28 (c) Commercial Security Agreement between Bobby Allison Wireless Corporation and
SouthTrust Bank, National Association, dated February 24, 1999
10.29 (a) Promissory Note between Bobby Allison Wireless Corporation and SouthTrust
Bank, National Association, in the amount of $500,000 dated February 24,
1999
10.29 (b) Business Loan Agreement between Bobby Allison Wireless Corporation and
SouthTrust Bank, National Association, dated February 24, 1999
10.29 (c) Commercial Security Agreement between Bobby Allison Wireless Corporation and
SouthTrust Bank, National Association, dated February 24, 1999
</TABLE>
(b) Exhibit 27 Financial Data Schedule (*)
(c) Reports on Form 8-K. Reports on Form 8-K have been filed
during the quarter ended March 31, 1999 as follows:
- Form 8-K filed January 8, 1999 for the events
occurring on December 31,1998.
- Form 8-K filed January 14, 1999 for the events
occurring January 7, 1999.
- Form 8-K filed March 5, 1999 for the events occurring
March 1, 1999.
- -----------------
(*) The financial data schedule was included in the initial filing and is
therefore omitted from this Amendment No. 1.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized
Date: June 30, 1999 BOBBY ALLISON WIRELESS CORPORATION
/s/ Robert L. McGinnis
----------------------------------------
Name: Robert L. McGinnis
Title: Chairman of the Board and Chief
Executive Officer
3
<PAGE> 1
EXHIBIT 10.28(a)
PROMISSORY NOTE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER INITIALS
$350,000.00 02-24-1999 02-24-2002 CLTERM JRF2Q
- -----------------------------------------------------------------------------------------------------------------------------------
REFERENCES IN THE SHADED AREA ARE FOR LENDER'S USE ONLY AND DO NOT LIMIT THE APPLICABILITY OF THIS DOCUMENT TO ANY PARTICULAR LOAN
OR ITEM.
- -----------------------------------------------------------------------------------------------------------------------------------
BORROWER: BOBBY ALLISON WIRELESS LENDER: SOUTHTRUST BANK, NATIONAL ASSOCIATION
2055 LAKE AVENUE, S.E., SUITE A NORTH COUNTRYSIDE OFFICE
LARGO, FL 33771 28059 U.S. HWY 19 NORTH
CLEARWATER, FL 33761
===================================================================================================================================
PRINCIPAL AMOUNT: $350,000.00 INITIAL RATE: 8.500% DATE OF NOTE: FEBRUARY 24, 1999
</TABLE>
PROMISE TO PAY. BOBBY ALLISON WIRELESS, INC. ("BORROWER") PROMISES TO PAY TO
SOUTHTRUST BANK, NATIONAL ASSOCIATION ("LENDER"), OR ORDER, IN LAWFUL MONEY OF
THE UNITED STATES OF AMERICA, THE PRINCIPAL AMOUNT OF THREE HUNDRED FIFTY
THOUSAND & 00/100 DOLLARS ($350,000.00), TOGETHER WITH INTEREST AT THE RATE OF
8.500% PER ANNUM ON THE UNPAID PRINCIPAL BALANCE FROM FEBRUARY 24, 1999, UNTIL
PAID IN FULL.
PAYMENT. BORROWER WILL PAY THIS LOAN IN 35 PAYMENTS OF $11,065.84 EACH PAYMENT
AND AN IRREGULAR LAST PAYMENT ESTIMATED AT $11,065,68. BORROWER'S FIRST PAYMENT
IS DUE MARCH 24, 1999, AND ALL SUBSEQUENT PAYMENTS ARE DUE ON THE SAME DAY OF
EACH MONTH AFTER THAT. BORROWER'S FINAL PAYMENT WILL BE DUE ON FEBRUARY 24,
2002, AND WILL BE FOR ALL PRINCIPAL AND ALL ACCRUED INTEREST NOT YET PAID.
PAYMENT INCLUDE PRINCIPAL AND INTEREST. The annual interest rate for this Note
is computed on a 365/360 basis; that is, by applying the ratio of the annual
interest rate over a year of 360 days, multiplied by the outstanding principal
balance, multiplied by the actual number of days the principal balance is
outstanding. Borrower will pay Lender at Lender's address shown above or at such
other place as Lender may designate in writing. Unless otherwise agreed or
required by applicable law, payments will be applied first to any unpaid
collection costs and any late charges, then to any unpaid interest, and any
remaining amount to principal.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed
earlier than it is due. Early payments will not, unless agreed to by Lender in
writing, relieve Borrower of Borrower's obligation to continue to make payments
of accrued unpaid Interest. Rather, they will reduce the principal balance due
and may result in Borrower making fewer payments.
LATE CHARGE. If a payment is 10 DAYS OR MORE LATE, Borrower will be charged
5.000% OF THE UNPAID PORTION OF THE REGULARLY SCHEDULED PAYMENT OR $.50,
WHICHEVER IS GREATER.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform when
due any other term, obligation, covenant, or condition contained in this Note or
any agreement related to this Note, or in any other agreement or loan Borrower
has with Lender. (c) Borrower defaults under any loan, extension of credit,
security agreement, purchase or sales agreement, or any other agreement, in
favor of any other creditor or person that may materially affect any of
Borrower's property or Borrower's ability to repay this Note or perform
Borrower's obligations under this Note or any of the Related Documents. (d) Any
representation or statement made or furnished to Lender by Borrower or on
Borrower's behalf is false or misleading in any material respect either now or
at the time made or furnished. (e) Borrower becomes insolvent, a receiver is
appointed for any part of Borrower's property, Borrower makes an assignment for
the benefit of creditors, or any proceeding is commenced either by Borrower or
against Borrower under any bankruptcy or insolvency laws. (f) Any creditor tries
to take any of Borrower's property on or in which Lender has a lien or security
interest. This includes a garnishment of any of Borrower's accounts with Lender.
(g) Any guarantor dies or any of the other events described in this default
section occurs with respect to any guarantor of this Note. (h) A material
adverse change occurs In Borrower's financial condition, or Lender believes the
prospect of payment or performance of the Indebtedness is impaired. (i) LENDER
IN GOOD FAITH DEEMS ITSELF INSECURE.
If any default, other than a default in payment, is curable and if Borrower has
not been given a notice of a breach of the same provision of this Note within
the preceding twelve (12) months, it may be cured (and no event of default will
have occurred) if Borrower, after receiving written notice from Lender demanding
cure of such default: (a) cures the default within fifteen (15) days; or (b) if
the cure requires more than fifteen (15) says, immediately initiates steps which
Lender deems in Lender's sole discretion to be sufficient to cure the default
and thereafter continues and completes all reasonable and necessary steps
sufficient to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon default, including failure
to pay upon final maturity, Lender, at its option, may also, if permitted under
applicable law, do one or both of the following: (a) increase the interest rate
of this Note 5.000 percentage points, if and to the extent that the increase
does not cause the interest rate to exceed the maximum rate permitted by
applicable law, and (b) add any unpaid accrued Interest to principal and such
sum will bear Interest therefrom until paid at the rate provided In this Note
(including any increased rate). Lender may hire or pay someone else to help
collect this Note If Borrower does not pay. Borrower also will pay Lender the
amount of these costs and expenses, which Includes, subject to any limits under
applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses
<PAGE> 2
whether or not there is a lawsuit, including reasonable attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or vacate
any automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. If not prohibited by applicable law, Borrower also will pay
any court costs, in addition to all other sums provided by law. THIS NOTE HAS
BEEN DELIVERED TO LENDER AND ACCEPTED BY LENDER IN THE STATE OF FLORIDA. IF
THERE IS A LAWSUIT, BORROWER AGREES UPON LENDER'S REQUEST TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF PINELLAS COUNTY, THE STATE OF FLORIDA. LENDER AND
BORROWER HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM BROUGHT BY EITHER LENDER OR BORROWER AGAINST THE OTHER. THIS NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
FLORIDA.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in,
and hereby assigns, convoys, delivers, pledges, and transfers to Lender all
Borrower's right, title and Interest In and to, Borrower's accounts with Lender
(whether checking, savings, or some other account), including without limitation
all accounts held jointly with someone else and all accounts Borrower may open
in the future, excluding however all IRA and Keogh accounts, and all trust
accounts for which the grant of a security interest would be prohibited by law.
Borrower authorizes Lender, to the extent permitted by applicable law, to charge
or setoff all sums owing on this Note against any and all such accounts, and, at
Lender's option, to administratively freeze all such accounts to allow Lender to
protect Lender's charge and setoff rights provided on this paragraph.
COLLATERAL. This Note is secured by Inventory, Chattel Paper, Accounts,
Equipment, General Intangibles, Fixtures and Furniture;
Cross collateralized with all other loans whether now existing or hereafter
acquired.
FINANCIAL STATEMENTS. Borrower covenants and agrees with Lender that, while this
Note is in effect, Borrower will furnish Lender with, as soon as available, but
in no event later than one hundred twenty (120) days after the end of each
fiscal year, Borrower's balance shoot and Income statement for the year ended,
prepared by Borrower, and as soon as available, but in no event later than
thirty (30) days after the end of each fiscal quarter, Borrower's balance shoot
and profit and loss statement for the period ended, prepared and certified as
correct to the best knowledge and belief by Borrower's chief financial officer
or other officer or person acceptable to Lender. All financial reports required
to be provided In this Note shall be prepared In accordance with generally
accepted accounting principles, applied on a consistent basis, and certified by
Borrower as being true and correct.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent (25%) or
more of the common stock of Borrower shall constitute an Event of Default under
the terms of this Note.
NO ORAL AGREEMENTS OR PROMISES. Our Agreement to lend, your obligation to repay
the loan, and any other agreements between us have been reduced to writing. The
loan documents that are to be signed at the closing contain our entire agreement
with you. Any prior conversations and discussions that you or we may have had
concerning this transaction are not binding on either of us except to the extent
reflected in the written loan documents. If the loan documents fail to reflect
anything which you believe either of us has agreed to do or not to do, let us
know before you sign the loan documents so we can either modify the written
documents to reflect our agreement, or clarity at this time that any such matter
is not a part of our agreement with you.
YOUR OBLIGATION TO DEVELOP A BUSINESS PLAN. Before approving this loan, Lender
required Borrower to furnish Lender with financial statements and other
information concerning the financial history and future prospects of Borrower's
business. Lender requested and reviewed that information solely to enable it to
make a decision whether to extend credit. Borrower understands that Lender has
not necessarily approved Borrower's business plan and has not undertaken any
duty or obligation to advise Borrower on business matters now or in the future.
Lender is not a financial or business advisor, and Borrower will not look to
Lender for business advice. Lender's rote Is solely that of a Lender, and
Borrower's relationship with Lender is that of debtor and creditor. Lender
expressly disclaims any fiduciary or other duties or obligations to Borrower
except those expressly provided in the written loan documents signed by Lender.
YEAR 2000. Borrower warrants and represents that all software utilized In the
conduct of Borrower's business will have appropriate capabilities and
compatibility for operation to handle calendar dates falling on or after January
1, 2000.
<PAGE> 3
02-24-1999 PROMISSORY NOTE PAGE 2
(CONTINUED)
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will
not affect the rest of the Note. Borrower does not agree or intend to pay, and
Lender does not agree or intend to contract for, charge, collect, take, reserve
or receive (collectively referred to herein as "charge or collect"), any amount
in the nature of Interest or in the nature of a fee for this loan, which would
in any way or event (including demand, prepayment, or acceleration) cause Lender
to charge or collect more for this loan than the maximum Lender would be
permitted to charge or collect by federal law or the law of the State of Florida
(as applicable). Any such excess Interest or unauthorized fee shall, instead of
anything stated to the contrary, be applied first to reduce the principal
balance of this loan, and when the principal has been paid In full, be refunded
to Borrower. Lender may delay or forgo enforcing any of its rights or remedies
under this Note without losing them. Borrower and any other person who signs,
guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, protest and notice of dishonor. Upon any change
in the terms of this Note, and unless otherwise expressly stated in writing, no
party who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and for any length of time) this loan, or
release any party or guarantor or collateral; or impair, fail to realize upon or
perfect Lender's security interest in the collateral; and take any other action
deemed necessary by Lender without the consent of or notice to anyone. All such
parties also agree that Lender may modify this loan without the consent of or
notice to anyone other than the party with whom the modification is made.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF
A COMPLETED COPY OF THE NOTE.
BORROWER:
BOBBY ALLISON WIRELESS, INC.
BY: /s/ Robert L. McGinnis (SEAL)
-----------------------------
ROBERT L. MCGINNIS, CEO
===============================================================================
VARIABLE RATE. LINE OF CREDIT. LASER PRO, REG, U.S, PAT. & T.M. OFF,. VER.
3.26 (C) 1999 CFI PROSERVICES, INC. ALL
RIGHTS RESERVED. [FL-D20 ALLISON. LN
C10.OVL]
<PAGE> 1
EXHIBIT 10.28(b)
BUSINESS LOAN AGREEMENT
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER INITIALS
$350,000.00 2-24-1999 02-24-2002 CLTERM JRF2Q
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
REFERENCES IN THE SHADED AREA ARE FOR LENDER'S USE ONLY AND DO NOT LIMIT THE
APPLICABILITY OF THIS DOCUMENT TO ANY PARTICULAR LOAN OR ITEM.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
BORROWER: BOBBY ALLISON WIRELESS, INC. LENDER: SOUTHTRUST BANK, NATIONAL ASSOCIATION
2056 LAKE AVENUE, S.E., SUITE A NORTH COUNTRYSIDE OFFICE
LARGO, FL 33771 28059 U.S. HWY 19 NORTH
CLEARWATER, FL 33761
===================================================================================================================================
</TABLE>
THIS BUSINESS LOAN AGREEMENT BETWEEN BOBBY ALLISON WIRELESS, INC. ("BORROWER")
AND SOUTHTRUST BANK, NATIONAL ASSOCIATION ("LENDER") IS MADE AND EXECUTED ON THE
FOLLOWING TERMS AND CONDITIONS. BORROWER HAS RECEIVED PRIOR COMMERCIAL LOANS
FROM LENDER OR HAS APPLIED TO LENDER FOR A COMMERCIAL LOAN OR LOANS AND OTHER
FINANCIAL ACCOMMODATIONS, INCLUDING THOSE WHICH MAY BE DESCRIBED ON ANY EXHIBIT
OR SCHEDULE ATTACHED TO THIS AGREEMENT. ALL SUCH LOANS AND FINANCIAL
ACCOMMODATIONS, TOGETHER WITH ALL FUTURE LOANS AND FINANCIAL ACCOMMODATIONS FROM
LENDER TO BORROWER, ARE REFERRED TO IN THIS AGREEMENT INDIVIDUALLY AS THE "LOAN"
AND COLLECTIVELY AS THE "LOANS." BORROWER UNDERSTANDS AND AGREES THAT: (A) IN
GRANTING, RENEWING, OR EXTENDING ANY LOAN, LENDER IS RELYING UPON BORROWER'S
REPRESENTATIONS, WARRANTIES, AND AGREEMENTS, AS SET FORTH IN THIS AGREEMENT; (B)
THE GRANTING, RENEWING, OR EXTENDING OF ANY LOAN BY LENDER AT ALL TIMES SHALL BE
SUBJECT TO LENDER'S SOLE JUDGMENT AND DISCRETION; AND (C) ALL SUCH LOANS SHALL
BE AND SHALL REMAIN SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS OF THIS
AGREEMENT.
TERM. This Agreement shall be effective as of February 24, 1999, and shall
continue thereafter until all Indebtedness of Borrower to Lender has been
performed In full and the parties terminate this Agreement in writing.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the initial
Loan Advance and each subsequent Loan Advance under this Agreement shall be
subject to the fulfillment to Lender's satisfaction of all of the conditions set
forth In this Agreement and in the Related Documents.
LOAN DOCUMENT. Borrower shall provide to Lender in form satisfactory to
Lender the following documents for the Loan: (a) the Note, (b) Security
Agreements granting to Lender security Interests In the Collateral, (c)
Financing Statements perfecting Lenders Security Interests; (d)
evidence of insurance as required below; and (e) any other documents
required under this Agreement or by Lender or its counsel, including
without limitation any guaranties described below.
BORROWER'S AUTHORIZATION. Borrower shall have provided In form and
substance satisfactory to Lender property certified resolutions, duly
authorizing the execution and delivery of this Agreement, the Note and
the Related Documents, and such other authorizations and other
documents and instruments as Lender or its counsel, in their sole
discretion, may require.
PAYMENT OF FEES AND EXPENSES. Borrower shall have paid to Lender all
fees, charges, and other expenses which are then due and payable as
specified in this Agreement or any Related Document.
REPRESENTATIONS AND WARRANTIES. The representations and warranties set
forth in this Agreement, in the Related Documents, and in any document
or certificate delivered to Lender under this Agreement are true and
correct.
NO EVENT OF DEFAULT. There shall not exist at the time of any advance a
condition which would constitute an Event of Default under this Agreement.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of Loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
ORGANIZATION. Borrower is a corporation which Is duly organized,
validly existing, and in good standing under the laws of the State of
Florida and is validly existing and in good standing in all states in
which Borrower is doing business. Borrower has the full power and
authority to own its properties and to transact the businesses in which
It is presently engaged or presently proposes to engage. Borrower also
is duly qualified as a foreign corporation and is in good standing in
all states in which the failure to so quality would have a material
adverse effect on its businesses or financial condition.
AUTHORIZATION. The execution, delivery, and performance of this
Agreement by Borrower, to the extent to be executed, delivered or
performed by Borrower, have been duly authorized by all necessary
action by Borrower; do not require the consent or approval of any other
person, regulatory authority or governmental body; and do not conflict
with, result In a violation of, or constitute a default under (a) any
provision of its articles of incorporation or organization, or bylaws,
<PAGE> 2
or any agreement or other instrument binding upon Borrower or (b) any
law, governmental regulation, court decree, or order applicable to
Borrower.
FINANCIAL INFORMATION. Each financial statement of Borrower supplied to
Lender truly and completely disclosed Borrower's financial condition as
of the date of the statement, and there has been no material adverse
change in Borrower's financial condition subsequent to the date of the
most recent financial statement supplied to Lender. Borrower has no
material contingent obligations except as disclosed in such financial
statements.
LEGAL EFFECT. This Agreement constitutes, and any instrument or
agreement required hereunder to be given by Borrower when delivered
will constitute, legal, valid and binding obligations of Borrower
enforceable against Borrower in accordance with their respective terms.
PROPERTIES. Except as contemplated by this Agreement or as previously
disclosed in Borrower's financial statements or in writing to Lender
and as accepted by Lender, and except for property tax liens for taxes
not presently due and payable, Borrower owns and has good title to all
of Borrower's properties free and clear of all liens and security
Interests, and has not executed any security documents or financing
statements relating to such properties. All of Borrower's properties
are titled In Borrower's legal name, and Borrower has not used, or
filed a financing statement under, any other name for at least the last
five (5) years.
HAZARDOUS SUBSTANCES. Except as disclosed to Lender in writing, no
property of Borrower ever has been, or ever will be so long as this
Agreement remains in effect, used for the generation, manufacture,
storage, treatment, disposal, release or threatened release of any
hazardous waste or substance, as those terms are defined in the
"CERCLA," "SARA," applicable state or Federal laws, or regulations
adopted pursuant to any of the foregoing. The representations and
warranties contained herein are based on Borrower's due diligence in
Investigating the properties for hazardous waste and hazardous
substances. Borrower hereby (a) releases and waives any future claims
against Lender for indemnity or contribution in the event Borrower
becomes liable for cleanup or other costs under any such laws, and (b)
agrees to indemnity and hold harmless Lender against any and all claims
and losses resulting from a breach of this provision of this Agreement.
This obligation to indemnity shall survive the payment of the
Indebtedness and the satisfaction of this Agreement.
COMMERCIAL PURPOSES. Borrower intends to use the Loan proceeds solely
for business or commercial related purposes.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, while
this Agreement is in effect, Borrower will:
LITIGATION. Promptly inform Lender in writing of (a) all material
adverse changes in Borrower's financial condition, and (b) all existing
and all threatened litigation, claims, investigations, administrative
proceedings or similar actions affecting Borrower or any guarantor of
the Loan which could materially affect the financial condition of
Borrower or the financial condition of any guarantor of the Loan.
FINANCIAL RECORDS. Maintain its books and records In accordance with
accounting principles acceptable to Lender, applied on a consistent
basis, and permit Lender to examine and audit Borrower's books and
records at all reasonable times.
FINANCIAL STATEMENTS. Furnish Lender with, as soon as available, but in
no event later than one hundred twenty (120) days after the end of each
fiscal year, Borrower's balance sheet and income statement for the year
ended, prepared by Borrower, and, as soon as available, but in no event
later than thirty (30) days after the end of each fiscal quarter,
Borrower's balance sheet and profit and loss statement for the period
ended, prepared and certified as correct to the best knowledge and
belief by Borrower's chief financial officer or other officer or person
acceptable to Lender. All financial reports required to be provided
under this Agreement shall be prepared in accordance with accounting
principles acceptable to Lender, applied on a consistent basis, and
certified by Borrower as being true and correct.
ADDITIONAL INFORMATION. Furnish such additional information and
statements, lists of assets and liabilities, agings of receivables and
payables, inventory schedules, budgets, forecasts, tax returns, and
other reports with respect to Borrower's financial condition and
business operations as Lender may request from time to time.
<PAGE> 3
===============================================================================
2-24-1999 BUSINESS LOAN AGREEMENT PAGE 2
(CONTINUED)
FINANCIAL COVENANTS AND RATIOS. Comply with the following covenants and
ratios:
For purposes of this Agreement and to the extent the following terms
are utilized In this Agreement, the term "Tangible Net Worth" shall
mean Borrower's total assets excluding all Intangible assets (i.e.,
goodwill, trademarks, patents, copyrights, organizational expenses, and
similar intangible items, but including leaseholds and leasehold
Improvements) less total Debt. The term "Debt shall mean all of
Borrower's liabilities excluding Subordinated Debt. The term
"Subordinated Debt shall mean indebtedness and liabilities of Borrower
which have been subordinated by written agreement to Indebtedness owed
by Borrower to Lender In form and substance acceptable to Lender. The
term "Working Capital" shall mean Borrower's current assets, excluding
prepaid expenses, less Borrower's current liabilities. The term "Liquid
Assets" shall mean Borrower's cash on hand plus Borrower's readily
marketable securities. The term "Cash Flow" shall mean net Income after
taxes, and exclusive of extraordinary gains and Income, plus
depreciation and amortization. Except as provided above, all
computations made to determine compliance with the requirements
contained in this paragraph shall be made in accordance with accounting
principles acceptable to Lender, applied on a consistent basis, and
certified by Borrower as being true and correct.
GUARANTIES. Prior to disbursement of any Loan proceeds, furnish
executed guaranties of the Loans in favor of Lender, executed by the
guarantors named below, on Lender's forms, and in the amounts and under
the conditions spelled out In those guaranties.
<TABLE>
<CAPTION>
GUARANTORS AMOUNTS
---------- -------
<S> <C>
JAMES L. RALPH UNLIMITED
STERNE, AGEE & LEACH GROUP, INC. 34%
ROBERT L. MCGINNIS UNLIMITED
</TABLE>
LOAN PROCEEDS. Use all Loan proceeds solely for Borrower's business
operations, unless specifically consented to the contrary by Lender in
writing.
PERFORMANCE. Perform and comply with all terms, conditions, and
provisions set forth in this Agreement and In the Related Documents in
a timely manner, and promptly notify Lender if Borrower learns of the
occurrence of any event which constitutes an Event of Default under
this Agreement or under any of the Related Documents.
OPERATIONS. Maintain executive and management personnel with
substantially the same qualifications and experience as the present
executive and management personnel; provide written notice to Lender of
any change in executive and management personnel; conduct its business
affairs in a reasonable and prudent manner and In compliance with all
applicable federal, state and municipal laws, ordinances, rules and
regulations respecting Its properties, charters, businesses and
operations, Including without limitation, compliance with the Americans
With Disabilities Act and with all minimum funding standards and other
requirements of ERISA and other laws applicable to Borrower's employee
benefit plans.
INSPECTION. Permit employees or agents of Lender at any reasonable time
to Inspect any and all Collateral for the Loan or Loans and Borrower's
other properties and to examine or audit Borrower's books, accounts,
and records and to make copies and memoranda of Borrower's books,
accounts, and records. If Borrower now or at any time hereafter
maintains any records (including without limitation computer generated
records and computer software programs for the generation of such
records) In the possession of a third party, Borrower, upon request of
Lender, shall notify such party to permit Lender free access to such
records at all reasonable times and to provide Lender with copies of
any records it may request, all at Borrower's expense.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
INDEBTEDNESS AND LIENS. (a) Except for trade debt incurred in the
normal course of business and indebtedness to Lender contemplated by
this Agreement, create, incur or assume indebtedness for borrowed
money, including capital leases, (b) except as allowed as a Permitted
Lien, sell, transfer, mortgage, assign, pledge, lease, grant a security
interest in, or encumber any of Borrower's assets, or (c) sell with
recourse any of Borrower's accounts, except to Lender.
CONTINUITY OF OPERATIONS. (a) Engage in any business activities
substantially different than those in which Borrower is presently
engaged, (b) cease operations, liquidate, merge, transfer, acquire or
consolidate with any other entity, change ownership, change its name,
dissolve or transfer or sell Collateral out of the ordinary course of
<PAGE> 4
dissolve or transfer or sell Collateral out of the ordinary course of
business, (c) pay any dividends on Borrower's stock (other than
dividends payable in its stock), provided, however that notwithstanding
the foregoing, but only so long as no Event of Default has occurred and
Is continuing or would result from the payment of dividends, if
Borrower is a *Subchapter S Corporation" (as defined in the internal
Revenue Code of 1986, as amended), Borrower may pay cash dividends on
its stock to its shareholders from time to time In amounts necessary to
enable the shareholders to pay income taxes and make estimated Income
tax payments to satisfy their liabilities under federal and state law
which arise solely from their status as Shareholders of a Subchapter S
Corporation because of their ownership of shares of stock of Borrower,
or (d) purchase or retire any of Borrower's outstanding shares or alter
or amend Borrower's capital structure.
LOANS, ACQUISITIONS AND GUARANTIES. (a) Loan, invest in or advance
money or assets, (b) purchase, create or acquire any interest in any
other enterprise or entity, or (c) incur any obligation as surety or
guarantor other than in the ordinary course of business.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan advances or to disburse Loan proceeds if:
(a) Borrower or any guarantor Is in default under the terms of this Agreement or
any other agreement that Borrower or any guarantor has with Lender; (b) Borrower
or any Guarantor becomes insolvent, files a petition In bankruptcy or similar
proceedings, or is adjudged a bankrupt; (c) there occurs a material adverse
change in Borrower's financial condition, in the financial condition of any
guarantor, or in the value of any collateral securing any Loan; (d) any
guarantor seeks, claims or otherwise attempts to limit, modify or revoke such
guarantor's guaranty of the Loan or any other loan with Lender; or (e) Lender in
good faith deems itself insecure, even though no Event of Default shall have
occurred.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in,
and hereby assigns, convoys, delivers, pledges, and transfers to Lender all
Borrower's right, title and interest in and to, Borrower's accounts with Lender
(whether checking, savings, or some other account), including without limitation
all accounts held jointly with someone else and all accounts Borrower may open
in the future, excluding however all IRA and Keogh accounts, and all trust
accounts for which the grant of a security interest would be prohibited by law.
Borrower authorizes Lender, to the extent permitted by applicable law, to charge
or setoff all sums owing on the indebtedness against any and all such accounts,
and, at Lender's option, to administratively freeze all such accounts to allow
Lender to protect Lender's charge and setoff rights provided on this paragraph.
EVENTS OF DEFAULT. Each of the following shall constitute an event of default
("Event of Default") under this Agreement:
DEFAULT ON INDEBTEDNESS. Failure of Borrower to make any payment when
due on the Loans.
OTHER DEFAULTS. Failure of Borrower to comply with or to perform when
due any other term, obligation, covenant or condition contained in this
Agreement
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower default under any
loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Borrower's property or
Borrower's ability to repay the Loans or perform Borrower's obligations
under this Agreement or any related document.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Borrower is false or misleading
in any material respect at the time made or furnished, or becomes false
or misleading at any time thereafter.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against
Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower, any
creditor of any grantor of collateral for the Loan this includes a
garnishment, attachment, or levy
2
<PAGE> 5
2-24-1999 BUSINESS LOAN AGREEMENT PAGE 3
(CONTINUED)
================================================================================
on or of any of Borrower's deposit accounts with Lender.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or any Guarantor
dies or becomes incompetent, or revokes or disputes the validity of, or
liability under, any Guaranty of the Indebtedness. Lender, at its
option, may, but shall not be required to, permit the Guarantor's
estate to assume unconditionally the obligations arising under the
guaranty in a manner satisfactory to Lender, and, in doing so, cure the
Event of Default.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent
(25%) or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of the Indebtedness is impaired.
INSECURITY. Lender, in good faith, deems itself insecure.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where
otherwise provided In this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement Immediately will terminate and,
at Lender's option, all Indebtedness Immediately will become due and payable,
all without notice of any kind to Borrower, except that In the case of an Event
of Default of the type described In the "Insolvency" subsection above, such
acceleration shall be automatic and not optional. In addition, Lender shall have
all the rights and remedies provided In the Related Documents or available at
law, in equity, or otherwise. Except as may be prohibited by applicable law, all
of Lender's rights and remedies shall be cumulative and may be exercised
singularly or concurrently. Election by Lender to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures or to
take action to perform an obligation of Borrower or of any Grantor shall not
affect Lender's right to declare a default and to exercise its rights and
remedies.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT, AND BORROWER AGREES TO ITS TERMS. THIS AGREEMENT IS DATED AS OF
FEBRUARY 24, 1999.
BORROWER:
BY:/s/ Robert L. McGinnis (SEAL)
----------------------------------
ROBERT L. MCGINNIS, CEO
LENDER:
SOUTHTRUST BANK, NATIONAL ASSOCIATION
BY: /s/ James A. Ray
----------------------------------
AUTHORIZED OFFICER
================================================================================
LASER PRO, REG. U.S. PAT. & T.M.
3
<PAGE> 1
EXHIBIT 10.28(c)
COMMERCIAL SECURITY AGREEMENT
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PRINCIPAL LOAN DATE MATURITY LOAN NO, CALL COLLATERAL ACCOUNT OFFICER INITIALS
$350,000.00 02-24-1999 02-24-2002 CLTERM JRF2Q
- -----------------------------------------------------------------------------------------------------------------------------------
REFERENCES IN THE SHADED AREA ARE FOR LENDER'S USE ONLY AND DO NOT LIMIT THE APPLICABILITY OF THIS DOCUMENT TO ANY PARTICULAR LOAN
OR ITEM.
- -----------------------------------------------------------------------------------------------------------------------------------
BORROWER: BOBBY ALLISON WIRELESS, INC, LENDER: SOUTHTRUST BANK, NATIONAL ASSOCIATION
2055 LAKE AVENUE, S.E., SUITE A NORTH COUNTRYSIDE OFFICE
LARGO, FL 33771 28059 U.S. HWY 19 NORTH
CLEARWATER, FL 33761
===================================================================================================================================
</TABLE>
THIS COMMERCIAL SECURITY AGREEMENT IS ENTERED INTO BETWEEN BOBBY ALLISON
WIRELESS, INC. (REFERRED TO BELOW AS "GRANTOR"); AND SOUTHTRUST BANK, NATIONAL
ASSOCIATION (REFERRED TO BELOW AS "LENDER"). FOR VALUABLE CONSIDERATION, GRANTOR
GRANTS TO LENDER A SECURITY INTEREST IN THE COLLATERAL TO SECURE THE
INDEBTEDNESS AND AGREES THAT LENDER SHALL HAVE THE RIGHTS STATED IN THIS
AGREEMENT WITH RESPECT TO THE COLLATERAL, IN ADDITION TO ALL OTHER RIGHTS WHICH
LENDER MAY HAVE BY LAW.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. All references
to dollar amounts shall mean amounts in lawful money of the United States of
America.
AGREEMENT. The word "Agreement" means this Commercial Security
Agreement, as this Commercial Security Agreement may be amended or modified from
time to time, together with all exhibits and schedules attached to this
Commercial Security Agreement from time to time.
COLLATERAL. The word "Collateral" means the following described
property of Grantor, whether now owned or hereafter acquired, whether now
existing or hereafter arising, and wherever located:
INVENTORY. Chanel Paper, Accounts, Equipment, General Intangibles,
Fixtures and Furniture In addition, the word "Collateral" includes all the
following, whether now owned or hereafter acquired, whether now existing or
hereafter arising, and wherever located:
(a) All attachments, accessions, accessories, tools, parts, supplies,
increases, and additions to and all replacements of and substitutions
for any property described above.
(b) All products and produce of any of the property described in this
Collateral section.
(c) All accounts, general Intangibles, instruments, rents, monies,
payments, and all other rights, arising out of a sale, lease, or other
disposition of any of the property described in this Collateral
section.
(d) All proceeds (including Insurance proceeds) from the sale,
destruction, loss, or other disposition of any of the property
described in this Collateral section.
(e) All records and data relating to any of the property described in
this Collateral section, whether in the form of a writing, photograph,
microfilm, microfiche, or electronic media, together with all of
Grantor's right, title, and interest in and to all computer software
required to utilize, create, maintain, and process any such records or
data on electronic media.
EVENT OF DEFAULT. The words "Event of Default" mean and include without
limitation any of the Events of Default set forth below in the section
fitted "Events of Default."
GUARANTOR. The word "Guarantor" means and includes without limitation
each and all of the guarantors, sureties, and accommodation parties in
connection with the Indebtedness.
INDEBTEDNESS. The word "Indebtedness" means the Indebtedness evidenced
by the Note, including all principal and interest, together with all
other indebtedness and costs and expenses for which Grantor is
responsible under this Agreement or under any of the Related Documents.
In addition, the word 'Indebtedness" includes all other obligations,
debts and liabilities, plus Interest thereon, of Grantor, or any one or
more of them, to Lender, as well as all claims by Lender against
Grantor, or any one or more of them, whether existing now or later;
whether they are voluntary or involuntary, due or not due, direct or
Indirect, absolute or contingent, liquidated or unliquidated; whether
Grantor may be liable Individually or jointly with others; whether
Grantor may be obligated as guarantor, surety, accommodation party or
otherwise; whether recovery upon such indebtedness may be or hereafter
may become barred by any statute of limitations; and whether such
indebtedness may be or hereafter may become otherwise unenforceable.
NOTE. The word "Note" means the note or credit agreement dated February
24, 1999, In the principal amount of $500,000.00 from Bobby Allison
Wireless, Inc. to Lender, together with all renewals of, extensions of,
modifications of, refinancings of, consolidations of and substitutions
for the note or credit agreement.
<PAGE> 2
RELATED DOCUMENTS. The words "Related Documents" mean and Include
without limitation all promissory notes, credit agreements, loan
agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection
with the Indebtedness.
RIGHT OF SETOFF. Grantor hereby grants Lender a contractual security interest in
and hereby assigns, convoys, delivers, pledges, and transfers all of Grantor's
right, title and Interest in and to Grantor's accounts with Lender (whether
checking, savings, or some other account), including all accounts held jointly
with someone else and all accounts Grantor may open in the future, excluding,
however, all IRA and Keogh accounts, and all trust accounts for which the grant
of a security interest would be prohibited by law. Grantor authorizes Lender, to
the extent permitted by applicable law, to charge or setoff all indebtedness
against any and all such accounts, and, at Lender's option, to administratively
freeze all such accounts to allow Lender to protect Lender's charge and setoff
rights provided in this paragraph.
OBLIGATIONS OF GRANTOR. Grantor warrants and covenants to Lender as follows:
PERFECTION OF SECURITY INTEREST. Grantor agrees to execute such
financing statements and to take whatever other actions are requested
by Lender to perfect and continue Lender's security interest in the
Collateral. Upon request of Lender, Grantor will deliver to Lender any
and all of the documents evidencing or constituting the Collateral, and
Grantor will note Lender's Interest upon any and all chattel paper if
not delivered to Lender for possession by Lender. Except in the
ordinary course of Its business, Grantor shall not remove the
Collateral from its existing locations without the prior written
consent of Lender.
REMOVAL OF COLLATERAL. Grantor shall keep the Collateral (or to the
extent the Collateral consists of Intangible property such as accounts,
the records concerning the Collateral) at Grantor's address shown
above, or at such other locations as are acceptable to Lender. Except
in the ordinary course of its business, Including the sales of
Inventory, Grantor shall not remove the Collateral from Its existing
locations without the prior written consent of Lender. To the extent
that the Collateral consists of vehicles, or other titled property,
Grantor shall not take or permit any action which would require
application for certificates of title for the vehicles outside the
State of Florida, without the prior written consent of Lender.
TRANSACTIONS INVOLVING COLLATERAL. Except for inventory sold or
accounts collected in the ordinary course of Grantor's business,
Grantor shall not sell, offer to sell, or otherwise transfer or dispose
of the Collateral. Grantor shall not pledge, mortgage, encumber or
otherwise permit the Collateral to be subject to any lien, security
interest, encumbrance, or charge, other than the security interest
provided for in this Agreement, without the prior written consent of
Lender.
<PAGE> 3
02-24-1999 COMMERCIAL SECURITY AGREEMENT PAGE 2
(CONTINUED)
===============================================================================
TITLE. Grantor represents and warrants to Lender that it holds good and
marketable title to the Collateral, free and clear of all liens and
encumbrances except for the lien of this Agreement. No financing
statement covering any of the Collateral is on file in any public
office other than those which reflect the security Interest created by
this Agreement or to which Lender has specifically consented. Grantor
shall defend Lender's rights in the Collateral against the claims and
demands of all other persons.
MAINTENANCE AND INSPECTION OF COLLATERAL. Grantor shall maintain all
tangible Collateral in good condition and repair. Grantor will not
commit or permit damage to or destruction of the Collateral or any part
of the Collateral. Lender and Its designated representatives and agents
shall have the right at all reasonable times to examine, inspect, and
audit the Collateral wherever located. Grantor shall immediately notify
Lender of all cases involving the return, rejection, repossession, loss
or damage of or to any Collateral; of any request for credit or
adjustment or of any other dispute arising with respect to the
Collateral; and generally of all happenings and events affecting the
Collateral or the value or the amount of the Collateral.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Grantor shall comply
promptly with all laws, ordinances, rules and regulations of all
governmental authorities, now or hereafter In effect, applicable to the
ownership, production, disposition, or use of the Collateral, including
without limitation payment when due of all taxes, assessments and liens
upon the Collateral.
MAINTENANCE OF CASUALTY INSURANCE. Grantor shall procure and maintain
all risks insurance, including without limitation fire, theft and
liability coverage together with such other insurance as Lender may
require with respect to the Collateral, in form, amounts, coverages and
basis reasonably acceptable to Lander and issued by a company or
companies reasonably acceptable to Lender. Grantor, upon request of
Lender, will deliver to Lender from time to time the policies or
certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be canceled or diminished without
at least ten (10) days' prior written notice to Lender and not
Including any disclaimer of the insurer's liability for failure to give
such a notice. Each insurance policy also shall Include an endorsement
providing that coverage in favor of Lender will not be impaired in any
way by any act, omission or default of Grantor or any other person. In
connection with all policies covering assets in which Lender holds or
is offered a security interest, Grantor will provide Lender with such
loss payable or other endorsements as Lender may require.
EXPENDITURES BY LENDER. If not discharged or paid when due, Lender may (but
shall not be obligated to) discharge or pay any amounts required to be
discharged or paid by Grantor under this Agreement, including without limitation
all taxes, lions, security Interests, encumbrances, and other claims, at any
time levied or placed on the Collateral. Lender also may (but shall not be
obligated to) pay all costs for insuring, maintaining and preserving the
Collateral. All such expenditures incurred or paid by Lender for such purposes
will then bear interest at the rate charged under the Note from the date
incurred or paid by Lender to the date of repayment by Grantor. All such
expenses shall become a part of the Indebtedness and, at Lender's option, will
(a) be payable on demand, (b) be added to the balance of the Note and be
apportioned among and be payable with any installment payments to become due
during either (1) the term of any applicable Insurance policy or (11) the
remaining term of the Note, or (c) be treated as a balloon payment which will be
due and payable at the Note's maturity. This Agreement also will secure payment
of these amounts. Such right shall be In addition to all other rights and
remedies to which Lender may be entitled upon the occurrence of an Event of
Default.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this Agreement:
DEFAULT ON INDEBTEDNESS. Failure of Grantor to make any payment when
due on the Indebtedness.
OTHER DEFAULTS. Failure of Grantor to comply with or to perform any
other term, obligation, covenant or condition contained in this
Agreement or in any of the Related Documents or In any other agreement
between Lender and Grantor.
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower default under any
loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Borrower's property or
Borrower's ability to repay the Loans or perform Borrower's obligations
under this Agreement or any related document.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Grantor under this Agreement,
the or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished.
DETECTIVE COLLATERALIZATION. This Agreement or any of the Related
<PAGE> 4
Documents ceases to be in full force and effect (including failure of
any collateral documents to create a valid and perfected security
Interest or lien) at any time and for any reason.
INSOLVENCY. The dissolution or termination of Grantor's existence as a
going business, the insolvency of Grantor, the appointment of a
receiver for any part of Grantor's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against
Grantor.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Grantor or by any
governmental agency against the Collateral or any other collateral
securing the Indebtedness. This includes a garnishment of any of
Grantor's deposit accounts with Lender. However, this Event of Default
shall not apply it there is a good faith dispute by Grantor as to the
validity or reasonableness of the claim which is the basis of the
creditor or forfeiture proceeding and if Grantor gives Lender written
notice of the creditor or forfeiture proceeding and deposits with
Lender monies or a surety bond for the creditor or forfeiture
proceeding, In an amount determined by Lender, in its sole discretion,
as being an adequate reserve or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or such Guarantor
dies or becomes Incompetent.
ADVERSE CHANGE. A material adverse change occurs in Grantor's financial
condition, or Lender believes the prospect of payment or performance of
the Indebtedness Is Impaired.
INSECURITY. Lender, in good faith, deems itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereafter, Lender shall have all the rights of a secured
party under the Florida Uniform Commercial Code. In addition and without
limitation, Lender may exercise any one or more of the following rights and
remedies:
ACCELERATE INDEBTEDNESS. Lender may declare the entire Indebtedness,
including any prepayment penalty which Grantor would be required to
pay, immediately due and payable, without notice.
SELL THE COLLATERAL. Lender shall have full power to sell, lease,
transfer, or otherwise deal with the Collateral or proceeds thereof in
its own name or that of Grantor. Lander may sell the Collateral at
public auction or private sale. Unless the Collateral threatens to
decline speedily in value or is of a type customarily sold on a
recognized market, Lender will give Grantor reasonable notice of the
time after which any private sale or any other Intended disposition of
the Collateral is to be made. The requirements of reasonable notice
shall be met If such notice Is given at least ten (10) days before the
time of the sale or disposition. All expenses relating to the
disposition of the Collateral, including without limitation the
expenses of retaking, holding, insuring, preparing for sale and selling
the Collateral, shall become a part of the Indebtedness secured by this
Agreement and shall be payable on demand, with Interest at the Note
rate from date of expenditure until repaid.
OTHER RIGHTS AND REMEDIES. Lender shall have all the rights and
remedies of a secured creditor under the provisions of the Uniform
Commercial Code, as may be amended from time to time. In addition,
Lender shall have and may exercise any or all other rights and remedies
it may have available at law, in equity, or otherwise.
CUMULATIVE REMEDIES. All of Lender's rights and remedies, whether
evidenced by this Agreement or the Related Documents or by any other
writing, shall be cumulative and may be exercised singularly or
concurrently. Election by Lender to pursue any remedy shall not exclude
pursuit of any other remedy, and an election to make expenditures or to
take action to perform an obligation of Grantor under this Agreement,
after Grantor's failure to perform, shall not affect Lender's right to
declare a default and to exercise its remedies.
2
<PAGE> 5
02-24-1999 COMMERCIAL SECURITY AGREEMENT PAGE 3
(CONTINUED)
===============================================================================
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
APPLICABLE LAW. This Agreement has been delivered to Lender and
accepted by Lender in the State of Florida. If there Is a lawsuit,
Grantor agrees upon Lender's request to submit to the jurisdiction of
the courts of the State of Florida. Lender and Grantor hereby waive the
right to any jury trial in any action, proceeding, or counterclaim
brought by either Lender or Grantor against the other. This Agreement
shall be governed by and construed in accordance with the laws of the
State of Florida.
ATTORNEYS' FEES; EXPENSES. Grantor agrees to pay upon demand all of
Lender's costs and expenses, including reasonable attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may pay someone else to help enforce this
Agreement, and Grantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's reasonable attorneys'
fees and legal expenses whether or not there is a lawsuit, including
reasonable attorneys' fees and legal expenses for bankruptcy
proceedings (and including efforts to modify or vacate any automatic
stay or injunction), appeals, and any anticipated post-judgment
collection services. Grantor also shall pay all court costs and such
additional fees as may be directed by the court.
WAIVER. Lender shall not be deemed to have waived any rights under this
Agreement unless such waiver is given in writing and signed by Lender.
No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or
constitute a waiver of Lender's right otherwise to demand strict
compliance with that provision or any other provision of this
Agreement. No prior waiver by Lender, nor any course of dealing between
Lender and Grantor, shall constitute a waiver of any of Lender's rights
or of any of Grantor's obligations as to any future transactions.
Whenever the consent of Lender is required under this Agreement, the
granting of such consent by Lender in any Instance shall not constitute
continuing consent to subsequent instances where such consent is
required and in all cases such consent may be granted or withheld In
the sole discretion of Lender.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY
AGREEMENT, AND GRANTOR AGREES TO ITS TERMS. THIS AGREEMENT IS DATED FEBRUARY 24,
1999.
GRANTOR
BOBBY ALLISON WIRELESS, INC.
BY:/s/Robert L. McGinnis (SEAL)
---------------------------
ROBERT L. MCGINNIS, CEO
===============================================================================
LASER PRO, REG. U.S. PAT. & T.M. OFF., VER. 3.26 (C) 1999 CFI PROSERVICES, INC.
ALL RIGHTS RESERVED. [FL-E40 ALLISON. LN C10.OVL]
3
<PAGE> 1
EXHIBIT 10.29(a)
PROMISSORY NOTE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER INITIALS
$500,000.00 02-24-1999 CLLOC JRF2Q
- -----------------------------------------------------------------------------------------------------------------------------------
REFERENCES IN THE SHADED AREA ARE FOR LENDER'S USE ONLY AND DO NOT LIMIT THE APPLICABILITY OF THIS DOCUMENT TO ANY PARTICULAR LOAN
OR ITEM.
- -----------------------------------------------------------------------------------------------------------------------------------
BORROWER: BOBBY ALLISON WIRELESS LENDER: SOUTHTRUST BANK, NATIONAL ASSOCIATION
2055 LAKE AVENUE, S.E., SUITE A NORTH COUNTRYSIDE OFFICE
LARGO, FL 33771 28059 U.S. HWY 19 NORTH
CLEARWATER, FL 33761
===================================================================================================================================
PRINCIPAL AMOUNT: $500,000.00 INITIAL RATE: 8.750% DATE OF NOTE: FEBRUARY 24, 1999
</TABLE>
PROMISE TO PAY. BOBBY ALLISON WIRELESS, INC. ("BORROWER") PROMISES TO PAY TO
SOUTHTRUST BANK, NATIONAL ASSOCIATION ("LENDER"), OR ORDER, IN LAWFUL MONEY OF
THE UNITED STATES OF AMERICA, ON DEMAND, THE PRINCIPAL AMOUNT OF FIVE HUNDRED
THOUSAND & 00/100 DOLLARS ($500,000.00) OR SO MULCH AS MAY BE OUTSTANDING,
TOGETHER WITH INTEREST ON THE UNPAID OUTSTANDING PRINCIPAL BALANCE OF EACH
ADVANCE. INTEREST SHALL BE CALCULATED FROM THE DATE OF EACH ADVANCE UNTIL
REPAYMENT OF EACH ADVANCE.
PAYMENT. BORROWER WILL PAY THIS LOAN IMMEDIATELY UPON LENDER'S DEMAND. IN
ADDITION, BORROWER WILL PAY REGULAR MONTHLY PAYMENTS OF ALL ACCRUED UNPAID
INTEREST DUE AS OF EACH PAYMENT DATE, BEGINNING MARCH 17,1999, WITH ALL
SUBSEQUENT INTEREST PAYMENTS TO BE DUE ON THE SAME DAY OF EACH MONTH AFTER THAT.
The annual interest rate for this Note is computed on a 365/360 basis; that is,
by applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number
of days the principal balance is outstanding. Borrower will pay Lender at
Lender's address shown above or at such other place as Lender may designate in
writing. Unless otherwise agreed or required by applicable law, payments will be
applied first to any unpaid collection costs and any late charges, then to any
unpaid interest, and any remaining amount to principal.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an index which is the SouthTrust Bank Bass
Rate. The Index is based on the Prime Rate published In the "Money Rates" table
in the Wall Street Journal on the first business day of each month. If two or
more Prime Rates are published in the "Money Rates" table on that day, the
highest of such rates shall be the Index Rate (the "Index"). The Index is not
necessarily the lowest rate charged by Lender on its loans and is set by Lender
in its sole discretion. If the Index becomes unavailable during the term of this
loan, Lender may designate a substitute Index after notifying Borrower. Lender
will tell Borrower the current Index rate upon Borrower's request. Borrower
understands that Lender may make loans based on other rates as well. The
interest rate change will not occur more often than each day. THE INDEX
CURRENTLY IS 7.750% PER ANNUM. THE INTEREST RATE TO BE APPLIED TO THE UNPAID ,
PRINCIPAL BALANCE OF THIS NOTE WILL BE AT A RATE OF 1.000 PERCENTAGE POINT OVER
THE INDEX, RESULTING IN AN INITIAL RATE OF 8.750% PER ANNUM. NOTICE: Under no
circumstances will the effective rate of interest on this Note be more than the
maximum rate allowed by applicable law.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed
earlier than it is due. Early payments will not, unless agreed to by Lender in
writing, relieve Borrower of Borrower's obligation to continue to make payments
of accrued unpaid Interest. Rather, they will reduce the principal balance due.
LATE CHARGE. If a regularly scheduled interest payment is 10 DAYS OR MORE LATE,
Borrower will be charged 5.000% OF THE UNPAID PORTION OF THE REGULARLY SCHEDULED
PAYMENT OR $10, WHICHEVER IS GREATER. If Lender demands payment of this loan,
and Borrower does not pay the loan WITHIN 10 DAYS AFTER LENDER'S DEMAND,
BORROWER ALSO WILL BE CHARGED EITHER 5.000% OF THE UNPAID PORTION OF THE SUM OF
THE UNPAID PRINCIPAL PLUS ACCRUED UNPAID INTEREST OR $.50, WHICHEVER IS GREATER.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform when
due any other term, obligation, covenant, or condition contained in this Note or
any agreement related to this Note, or in any other agreement or loan Borrower
has with Lender. (c) Borrower defaults under any loan, extension of credit,
security agreement, purchase or sales agreement, or any other agreement, in
favor of any other creditor or person that may materially affect any of
Borrower's property or Borrower's ability to repay this Note or perform
Borrower's obligations under this Note or any of the Related Documents. (d) Any
representation or statement made or furnished to Lender by Borrower or on
Borrower's behalf is false or misleading in any material respect either now or
at the time made or furnished. (e) Borrower becomes insolvent, a receiver is
appointed for any part of Borrower's property, Borrower makes an assignment for
the benefit of creditors, or any proceeding is commenced either by Borrower or
against Borrower under any bankruptcy or insolvency laws. (f) Any creditor tries
to take any of Borrower's property on or in which Lender has a lien or security
interest. This includes a garnishment of any of Borrower's accounts with Lender.
(g) Any guarantor dies or any of the other events described in this default
section occurs with respect to any guarantor of this Note. (h) A material
adverse change occurs In Borrower's financial condition, or Lender believes the
prospect of payment or performance of the Indebtedness is impaired. (i) Failure
to meet the deadlines required in the Year 2000 Compliance Agreement to be Year
2000 Compliant or a reasonable likelihood that Borrower cannot be Year 2000
Compliant on or before December 31, 1999. j) LENDER IN GOOD FAITH DEEMS ITSELF
INSECURE.
<PAGE> 2
If any default, other than a default in payment, is curable and if Borrower has
not been given a notice of a breach of the same provision of this Note within
the preceding twelve (12) months, it may be cured (and no event of default will
have occurred) if Borrower, after receiving written notice from Lender demanding
cure of such default: (a) cures the default within fifteen (15) days; or (b) if
the cure requires more than fifteen (15) says, immediately initiates steps which
Lender deems in Lender's sole discretion to be sufficient to cure the default
and thereafter continues and completes all reasonable and necessary steps
sufficient to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon default, including failure
to pay upon final maturity, Lender, at its option, may also, if permitted under
applicable law, do one or both of the following: (a) increase the variable
Interest rate on this Note to 6.000 percentage points over the Index, if and to
the extent that the increase does not cause the Interest rate to exceed the
maximum rate permitted by applicable law, and (b) add any unpaid accrued
Interest to principal and such sum will bear Interest therefrom until paid at
the rate provided In this Note (including any increased rate). Lender may hire
or pay someone else to help collect this Note If Borrower does not pay. Borrower
also will pay Lender the amount of these costs and expenses, which Includes,
subject to any limits under applicable law, Lender's reasonable attorneys' fees
and Lender's legal expenses whether or not there is a lawsuit, including
reasonable attorneys' fees and legal expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services. If not
prohibited by applicable law, Borrower also will pay any court costs, in
addition to all other sums provided by law. THIS NOTE HAS BEEN DELIVERED TO
LENDER AND ACCEPTED BY LENDER IN THE STATE OF FLORIDA. IF THERE IS A LAWSUIT,
BORROWER AGREES UPON LENDER'S REQUEST TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF PINELLAS COUNTY, THE STATE OF FLORIDA. LENDER AND BORROWER HEREBY
WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
BROUGHT BY EITHER LENDER OR BORROWER AGAINST THE OTHER. THIS NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in,
and hereby assigns, convoys, delivers, pledges, and transfers to Lender all
Borrower's right, title and Interest In and to, Borrower's accounts with Lender
(whether checking, savings, or some other account), including without limitation
all accounts held jointly with someone else and all accounts Borrower may open
in the future, excluding however all IRA and Keogh accounts, and all trust
accounts for which the grant of a security interest would be prohibited by law.
Borrower authorizes Lender, to the extent permitted by applicable law, to charge
or setoff all sums owing on this Note against any and all such accounts, and, at
Lender's option, to administratively freeze all such accounts to allow Lender to
protect Lender's charge and setoff rights provided on this paragraph.
COLLATERAL. This Note is secured by Inventory, Chattel Paper, Accounts,
Equipment, General Intangibles, Fixtures and Furniture;
Cross collateralized with all other loans whether now existing or hereafter
acquired.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under
this Note may be requested orally by Borrower or by an authorized person. Lender
may, but need not, require that all oral requests be confirmed in writing. All
communications, instructions, or directions by telephone or otherwise to Lender
are to be directed to Lender's office shown above. The following party or
parties are authorized to request advances under the line of credit until Lender
receives from Borrower at Lender's address shown above written notice of
revocation of their authority: Robert L. McGinnis, CEO. Borrower agrees to be
liable for all sums either: (a) advanced In accordance with the Instructions of
an authorized person or (b) credited to any of Borrower's accounts with Lender.
The unpaid principal balance owing on this Note at any time may be evidenced by
endorsements on this Note or by Lender's internal records, including daily
computer print-outs. Lender will have no obligation to advance funds under this
Note if: (a) Borrower or any guarantor is in default under the terms of this
Note or any agreement that Borrower or any guarantor has with Lender, including
any agreement made in connection with the signing of this Note; (b) Borrower or
any guarantor ceases doing business or is insolvent; (c) any guarantor seeks,
claims or otherwise attempts to limit, modify or revoke such guarantor's
guarantee of this Note or any other loan with Lender; (d) Borrower has applied
funds provided pursuant to this Note for purposes other than those authorized by
Lender; or (e) LENDER IN GOOD FAITH DEEMS ITSELF INSECURE UNDER THIS NOTE OR ANY
OTHER AGREEMENT BETWEEN LENDER AND BORROWER.
<PAGE> 3
02-24-1999 PROMISSORY NOTE PAGE 2
(CONTINUED)
FINANCIAL STATEMENTS. Borrower covenants and agrees with Lender that, while this
Note is in effect, Borrower will furnish Lender with, as soon as available, but
in no event later than one hundred twenty (120) days after the end of each
fiscal year, Borrower's balance shoot and Income statement for the year ended,
prepared by Borrower, and as soon as available, but in no event later than
thirty (30) days after the end of each fiscal quarter, Borrower's balance shoot
and profit and loss statement for the period ended, prepared and certified as
correct to the best knowledge and belief by Borrower's chief financial officer
or other officer or person acceptable to Lender. All financial reports required
to be provided In this Note shall be prepared In accordance with generally
accepted accounting principles, applied on a consistent basis, and certified by
Borrower as being true and correct.
CHANGE ON OWNERSHIP. Any change in ownership of twenty-five percent (25%) or
more of the common stock of Borrower shall constitute an Event of Default under
the terms of this Note.
NO ORAL AGREEMENTS OR PROMISES. Our Agreement to lend, your obligation to repay
the loan, and any other agreements between us have been reduced to writing. The
loan documents that are to be signed at the closing contain our entire agreement
with you. Any prior conversations and discussions that you or we may have had
concerning this transaction are not binding on either of us except to the extent
reflected in the written loan documents. If the loan documents fail to reflect
anything which you believe either of us has agreed to do or not to do, let us
know before you sign the loan documents so we can either modify the written
documents to reflect our agreement, or clarity at this time that any such matter
is not a part of our agreement with you.
YOUR OBLIGATION TO DEVELOP A BUSINESS PLAN. Before approving this loan, Lender
required Borrower to furnish Lender financial statements and other information
concerning the financial history and future prospects of Borrower's business.
Lender requested and reviewed that information solely to enable it to make a
decision whether to extend credit. Borrower understands that Lender has not
necessarily approved Borrower's business plan and has not undertaken any duty or
obligation to advise Borrower on business matters now or in the future. Lender
is not a financial or business advisor, and Borrower will not look to Lender for
business advice. Lender's rote Is solely that of a Lender, and Borrower's
relationship with Lender is that of debtor and creditor. Lender expressly
disclaims any fiduciary or other duties or obligations to Borrower except those
expressly provided in the written loan documents signed by Lender.
YEAR 2000. Borrower warrants and represents that all software utilized In the
conduct of Borrower's business will have appropriate capabilities and
compatibility for operation to handle calendar dates failing on or after January
1, 2000.
GENERAL PROVISIONS. This Note is payable on demand. The inclusion of specific
default provisions or rights of Lender shall not preclude Lender's right to
declare payment of this Note on its demand. If any part of this Note cannot be
enforced, this fact ,will not affect the rest of the Note. Borrower does not
agree or intend to pay, and Lender does not agree or intend to contract for,
charge, collect, take, reserve or receive (collectively referred to herein as
"charge or collect"), any amount in the nature of Interest or in the nature of a
fee for this loan, which would in any way or event (including demand,
prepayment, or acceleration) cause Lender to charge or collect more for this
loan than the maximum Lender would be permitted to charge or collect by federal
law or the law of the State of Florida (as applicable). Any such excess Interest
or unauthorized fee shall, instead of anything stated to the contrary, be
applied first to reduce the principal balance of this loan, and when the
principal has been paid In full, be refunded to Borrower. Lender may delay or
forgo enforcing any of its rights or remedies under this Note without losing
them. Borrower and any other person who signs, guarantees or endorses this Note,
to the extent allowed by law, waive presentment, demand for payment, protest and
notice of dishonor. Upon any change in the terms of this Note, and unless
otherwise expressly stated in writing, no party who signs this Note, whether as
maker, guarantor, accommodation maker or endorser, shall be released from
liability. All such parties agree that Lender may renew or extend (repeatedly
and for any length of time) this loan, or release any party or guarantor or
collateral; or impair, fail to realize upon or perfect Lender's security
interest in the collateral; and take any other action deemed necessary by Lender
without the consent of or notice to anyone. All such parties also agree that
Lender may modify this loan without the consent of or notice to anyone other
than the party with whom the modification is made.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF
A COMPLETED COPY OF THE NOTE.
BORROWER:
BOBBY ALLISON WIRELESS, INC.
BY: /s/ Robert L. McGinnis (SEAL)
-----------------------------------
ROBERT L. MCGINNIS, CEO
===============================================================================
VARIABLE RATE. LINE OF CREDIT. LASER PRO, REG, U.S, PAT. & T.M. OFF,. VER.
3.26 (C) 1999 CFI PROSERVICES, INC. ALL
RIGHTS RESERVED. [FL-D20 ALLISON. LN
C10.OVL]
<PAGE> 1
EXHIBIT 10.29(b)
BUSINESS LOAN AGREEMENT
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER INITIALS
$500,000.00 2-24-1999 CLLOC JRF2Q
- -----------------------------------------------------------------------------------------------------------------------------------
REFERENCES IN THE SHADED AREA ARE FOR LENDER'S USE ONLY AND DO NOT LIMIT THE APPLICABILITY OF THIS DOCUMENT TO ANY PARTICULAR LOAN
OR ITEM.
- -----------------------------------------------------------------------------------------------------------------------------------
BORROWER: BOBBY ALLISON WIRELESS, INC. LENDER: SOUTHTRUST BANK, NATIONAL ASSOCIATION
2056 LAKE AVENUE, S.E., SUITE A NORTH COUNTRYSIDE OFFICE
LARGO, FL 33771 28059 U.S. HWY 19 NORTH
CLEARWATER, FL 33761
===================================================================================================================================
</TABLE>
THIS BUSINESS LOAN AGREEMENT BETWEEN BOBBY ALLISON WIRELESS, INC. ("BORROWER")
AND SOUTHTRUST BANK, NATIONAL ASSOCIATION ("LENDER") IS MADE AND EXECUTED ON THE
FOLLOWING TERMS AND CONDITIONS. BORROWER HAS RECEIVED PRIOR COMMERCIAL LOANS
FROM LENDER OR HAS APPLIED TO LENDER FOR A COMMERCIAL LOAN OR LOANS AND OTHER
FINANCIAL ACCOMMODATIONS, INCLUDING THOSE WHICH MAY BE DESCRIBED ON ANY EXHIBIT
OR SCHEDULE ATTACHED TO THIS AGREEMENT. ALL SUCH LOANS AND FINANCIAL
ACCOMMODATIONS, TOGETHER WITH ALL FUTURE LOANS AND FINANCIAL ACCOMMODATIONS FROM
LENDER TO BORROWER, ARE REFERRED TO IN THIS AGREEMENT INDIVIDUALLY AS THE "LOAN"
AND COLLECTIVELY AS THE "LOANS." BORROWER UNDERSTANDS AND AGREES THAT: (A) IN
GRANTING, RENEWING, OR EXTENDING ANY LOAN, LENDER IS RELYING UPON BORROWER'S
REPRESENTATIONS, WARRANTIES, AND AGREEMENTS, AS SET FORTH IN THIS AGREEMENT; (B)
THE GRANTING, RENEWING, OR EXTENDING OF ANY LOAN BY LENDER AT ALL TIMES SHALL BE
SUBJECT TO LENDER'S SOLE JUDGMENT AND DISCRETION; AND (C) ALL SUCH LOANS SHALL
BE AND SHALL REMAIN SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS OF THIS
AGREEMENT.
TERM. This Agreement shall be effective as of February 24, 1999, and shall
continue thereafter until all Indebtedness of Borrower to Lender has been
performed In full and the parties terminate this Agreement in writing.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the initial
Loan Advance and each subsequent Loan Advance under this Agreement shall be
subject to the fulfillment to Lender's satisfaction of all of the conditions set
forth In this Agreement and in the Related Documents.
LOAN DOCUMENT. Borrower shall provide to Lender in form satisfactory to
Lender the following documents for the Loan: (a) the Note, (b) Security
Agreements granting to Lender security Interests In the Collateral, (c)
Financing Statements perfecting Lenders Security Interests; (d)
evidence of insurance as required below; and (e) any other documents
required under this Agreement or by Lender or its counsel, including
without limitation any guaranties described below.
BORROWER'S AUTHORIZATION. Borrower shall have provided In form and
substance satisfactory to Lender property certified resolutions, duly
authorizing the execution and delivery of this Agreement, the Note and
the Related Documents, and such other authorizations and other
documents and instruments as Lender or its counsel, in their sole
discretion, may require.
PAYMENT OF FEES AND EXPENSES. Borrower shall have paid to Lender all
fees, charges, and other expenses which are then due and payable as
specified in this Agreement or any Related Document.
REPRESENTATIONS AND WARRANTIES. The representations and warranties set
forth in this Agreement, in the Related Documents, and in any document
or certificate delivered to Lender under this Agreement are true and
correct.
NO EVENT OF DEFAULT. There shall not exist at the time of any advance a
condition which would constitute an Event of Default under this
Agreement.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of Loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
ORGANIZATION. Borrower is a corporation which Is duly organized,
validly existing, and in good standing under the laws of the State of
Florida and is validly existing and in good standing in all states in
which Borrower is doing business. Borrower has the full power and
authority to own its properties and to transact the businesses in which
It is presently engaged or presently proposes to engage. Borrower also
is duly qualified as a foreign corporation and is in good standing in
all states in which the failure to so quality would have a material
adverse effect on its businesses or financial condition.
AUTHORIZATION. The execution, delivery, and performance of this
Agreement by Borrower, to the extent to be executed, delivered or
performed by Borrower, have been duly authorized by all necessary
action by Borrower; do not require the consent or approval of any other
person, regulatory authority or governmental body; and do not conflict
with, result In a violation of, or constitute a default under (a) any
provision of its articles of incorporation or organization, or bylaws,
or any agreement or other instrument binding upon Borrower or (b) any
law, governmental regulation, court decree, or order applicable to
Borrower.
FINANCIAL INFORMATION. Each financial statement of Borrower supplied to
<PAGE> 2
Lender truly and completely disclosed Borrower's financial condition as
of the date of the statement, and there has been no material adverse
change in Borrower's financial condition subsequent to the date of the
most recent financial statement supplied to Lender. Borrower has no
material contingent obligations except as disclosed in such financial
statements.
LEGAL EFFECT. This Agreement constitutes, and any instrument or
agreement required hereunder to be given by Borrower when delivered
will constitute, legal, valid and binding obligations of Borrower
enforceable against Borrower in accordance with their respective terms.
PROPERTIES. Except as contemplated by this Agreement or as previously
disclosed in Borrower's financial statements or in writing to Lender
and as accepted by Lender, and except for property tax liens for taxes
not presently due and payable, Borrower owns and has good title to all
of Borrower's properties free and clear of all liens and security
Interests, and has not executed any security documents or financing
statements relating to such properties. All of Borrower's properties
are titled In Borrower's legal name, and Borrower has not used, or
filed a financing statement under, any other name for at least the last
five (5) years.
HAZARDOUS SUBSTANCES. Except as disclosed to Lender in writing, no
property of Borrower ever has been, or ever will be so long as this
Agreement remains in effect, used for the generation, manufacture,
storage, treatment, disposal, release or threatened release of any
hazardous waste or substance, as those terms are defined in the
"CERCLA," "SARA," applicable state or Federal laws, or regulations
adopted pursuant to any of the foregoing. The representations and
warranties contained herein are based on Borrower's due diligence in
Investigating the properties for hazardous waste and hazardous
substances. Borrower hereby (a) releases and waives any future claims
against Lender for indemnity or contribution in the event Borrower
becomes liable for cleanup or other costs under any such laws, and (b)
agrees to indemnity and hold harmless Lender against any and all claims
and losses resulting from a breach of this provision of this Agreement.
This obligation to indemnity shall survive the payment of the
Indebtedness and the satisfaction of this Agreement.
COMMERCIAL PURPOSES. Borrower intends to use the Loan proceeds solely
for business or commercial related purposes.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, while
this Agreement is in effect, Borrower will:
LITIGATION. Promptly inform Lender in writing of (a) all material
adverse changes in Borrower's financial condition, and (b) all existing
and all threatened litigation, claims, investigations, administrative
proceedings or similar actions affecting Borrower or any guarantor of
the Loan which could materially affect the financial condition of
Borrower or the financial condition of any guarantor of the Loan.
FINANCIAL RECORDS. Maintain its books and records In accordance with
accounting principles acceptable to Lender, applied on a consistent
basis, and permit Lender to examine and audit Borrower's books and
records at all reasonable times.
FINANCIAL STATEMENTS. Furnish Lender with, as soon as available, but in
no event later than one hundred twenty (120) days after the end of each
fiscal year, Borrower's balance sheet and income statement for the year
ended, prepared by Borrower, and, as soon as available, but in no event
later than thirty (30) days after the end of each fiscal quarter,
Borrower's balance sheet and profit and loss statement for the period
ended, prepared and certified as correct to the best knowledge and
belief by Borrower's chief financial officer or other officer or person
acceptable to Lender. All financial reports required to be provided
under this Agreement shall be prepared in accordance with accounting
principles acceptable to Lender, applied on a consistent basis, and
certified by Borrower as being true and correct.
ADDITIONAL INFORMATION. Furnish such additional information and
statements, lists of assets and liabilities, agings of receivables and
payables, inventory schedules, budgets, forecasts, tax returns, and
other reports with respect to Borrower's financial condition and
business operations as Lender may request from time to time.
<PAGE> 3
2-24-1999 BUSINESS LOAN AGREEMENT PAGE 2
(CONTINUED)
===============================================================================
FINANCIAL COVENANTS AND RATIOS. Comply with the following covenants and
ratios:
For purposes of this Agreement and to the extent the following terms
are utilized In this Agreement, the term "Tangible Net Worth" shall
mean Borrower's total assets excluding all Intangible assets (i.e.,
goodwill, trademarks, patents, copyrights, organizational expenses, and
similar intangible items, but including leaseholds and leasehold
Improvements) less total Debt. The term "Debt shall mean all of
Borrower's liabilities excluding Subordinated Debt. The term
"Subordinated Debt shall mean indebtedness and liabilities of Borrower
which have been subordinated by written agreement to Indebtedness owed
by Borrower to Lender In form and substance acceptable to Lender. The
term "Working Capital" shall mean Borrower's current assets, excluding
prepaid expenses, less Borrower's current liabilities. The term "Liquid
Assets" shall mean Borrower's cash on hand plus Borrower's readily
marketable securities. The term "Cash Flow" shall mean net Income after
taxes, and exclusive of extraordinary gains and Income, plus
depreciation and amortization. Except as provided above, all
computations made to determine compliance with the requirements
contained in this paragraph shall be made in accordance with accounting
principles acceptable to Lender, applied on a consistent basis, and
certified by Borrower as being true and correct.
GUARANTIES. Prior to disbursement of any Loan proceeds, furnish
executed guaranties of the Loans in favor of Lender, executed by the
guarantors named below, on Lender's forms, and in the amounts and under
the conditions spelled out In those guaranties.
GUARANTORS AMOUNTS
---------- -------
JAMES L. RALPH UNLIMITED
STERNE, AGEE & LEACH GROUP, INC. 34%
ROBERT L. MCGINNIS UNLIMITED
LOAN PROCEEDS. Use all Loan proceeds solely for Borrower's business
operations, unless specifically consented to the contrary by Lender in
writing.
PERFORMANCE. Perform and comply with all terms, conditions, and
provisions set forth in this Agreement and In the Related Documents in
a timely manner, and promptly notify Lender if Borrower learns of the
occurrence of any event which constitutes an Event of Default under
this Agreement or under any of the Related Documents.
OPERATIONS. Maintain executive and management personnel with
substantially the same qualifications and experience as the present
executive and management personnel; provide written notice to Lender of
any change in executive and management personnel; conduct its business
affairs in a reasonable and prudent manner and In compliance with all
applicable federal, state and municipal laws, ordinances, rules and
regulations respecting Its properties, charters, businesses and
operations, Including without limitation, compliance with the Americans
With Disabilities Act and with all minimum funding standards and other
requirements of ERISA and other laws applicable to Borrower's employee
benefit plans.
INSPECTION. Permit employees or agents of Lender at any reasonable time
to Inspect any and all Collateral for the Loan or Loans and Borrower's
other properties and to examine or audit Borrower's books, accounts,
and records and to make copies and memoranda of Borrower's books,
accounts, and records. If Borrower now or at any time hereafter
maintains any records (including without limitation computer generated
records and computer software programs for the generation of such
records) In the possession of a third party, Borrower, upon request of
Lender, shall notify such party to permit Lender free access to such
records at all reasonable times and to provide Lender with copies of
any records it may request, all at Borrower's expense.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
INDEBTEDNESS AND LIENS. (a) Except for trade debt incurred in the
normal course of business and indebtedness to Lender contemplated by
this Agreement, create, incur or assume indebtedness for borrowed
money, including capital leases, (b) except as allowed as a Permitted
Lien, sell, transfer, mortgage, assign, pledge, lease, grant a security
interest in, or encumber any of Borrower's assets, or (c) sell with
recourse any of Borrower's accounts, except to Lender.
CONTINUITY OF OPERATIONS. (a) Engage in any business activities
substantially different than those in which Borrower is presently
engaged, (b) cease operations, liquidate, merge, transfer, acquire or
consolidate with any other entity, change ownership, change its name,
dissolve or transfer or sell Collateral out of the ordinary course of
business, (c) pay any dividends on Borrower's stock (other than
dividends payable in its stock), provided, however that notwithstanding
the foregoing, but only so long as no Event of Default has occurred and
Is continuing or would result from the payment of dividends, if
<PAGE> 4
Borrower is a *Subchapter S Corporation" (as defined in the internal
Revenue Code of 1986, as amended), Borrower may pay cash dividends on
its stock to its shareholders from time to time In amounts necessary to
enable the shareholders to pay income taxes and make estimated Income
tax payments to satisfy their liabilities under federal and state law
which arise solely from their status as Shareholders of a Subchapter S
Corporation because of their ownership of shares of stock of Borrower,
or (d) purchase or retire any of Borrower's outstanding shares or alter
or amend Borrower's capital structure.
LOANS, ACQUISITIONS AND GUARANTIES. (a) Loan, invest in or advance
money or assets, (b) purchase, create or acquire any interest in any
other enterprise or entity, or (c) incur any obligation as surety or
guarantor other than in the ordinary course of business.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan advances or to disburse Loan proceeds if:
(a) Borrower or any guarantor Is in default under the terms of this Agreement or
any other agreement that Borrower or any guarantor has with Lender; (b) Borrower
or any Guarantor becomes insolvent, files a petition In bankruptcy or similar
proceedings, or is adjudged a bankrupt; (c) there occurs a material adverse
change in Borrower's financial condition, in the financial condition of any
guarantor, or in the value of any collateral securing any Loan; (d) any
guarantor seeks, claims or otherwise attempts to limit, modify or revoke such
guarantor's guaranty of the Loan or any other loan with Lender; or (e) Lender in
good faith deems itself insecure, even though no Event of Default shall have
occurred.
ADVANCE RATE. The amount advanced under the line shall not exceed the lesser of
i) 80% of Eligible Accounts Receivable and 50% of inventory. Eligible Accounts
Receivable shall be receivables less than or equal to 90 days from Invoice date,
minus Contra Accounts (AT&T). The inventory shall be capped at $250,000.00.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in,
and hereby assigns, convoys, delivers, pledges, and transfers to Lender all
Borrower's right, title and interest in and to, Borrower's accounts with Lender
(whether checking, savings, or some other account), including without limitation
all accounts held jointly with someone else and all accounts Borrower may open
in the future, excluding however all IRA and Keogh accounts, and all trust
accounts for which the grant of a security interest would be prohibited by law.
Borrower authorizes Lender, to the extent permitted by applicable law, to charge
or setoff all sums owing on the indebtedness against any and all such accounts,
and, at Lender's option, to administratively freeze all such accounts to allow
Lender to protect Lender's charge and setoff rights provided on this paragraph.
EVENTS OF DEFAULT. Each of the following shall constitute an event of default
("Event of Default") under this Agreement:
DEFAULT ON INDEBTEDNESS. Failure of Borrower to make any payment when
due on the Loans.
OTHER DEFAULTS. Failure of Borrower to comply with or to perform when
due any other term, obligation, covenant or condition contained in this
Agreement
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower default under any
loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Borrower's property or
Borrower's ability to repay the Loans or perform Borrower's obligations
under this Agreement or any related document.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Borrower is false or misleading
in any material respect at the time made or furnished, or becomes false
or misleading at any time thereafter.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against
Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower, any
creditor of any grantor of collateral for the Loan this includes a
garnishment, attachment, or levy
2
<PAGE> 5
2-24-1999 BUSINESS LOAN AGREEMENT PAGE 3
(CONTINUED)
===============================================================================
on or of any of Borrower's deposit accounts with Lender.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or any Guarantor
dies or becomes incompetent, or revokes or disputes the validity of, or
liability under, any Guaranty of the Indebtedness. Lender, at its
option, may, but shall not be required to, permit the Guarantor's
estate to assume unconditionally the obligations arising under the
guaranty in a manner satisfactory to Lender, and, in doing so, cure the
Event of Default.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent
(25%) or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of the Indebtedness is impaired.
YEAR 2000 COMPLIANCE FAILURE. Failure to meet the deadlines required in
the Year 2000 Compliance Agreement to be Year 2000 Compliant or a
reasonable likelihood that Borrower cannot be Year 2000 Compliant on or
before December 31, 1999.
INSECURITY. Lender, in good faith, deems itself insecure.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where
otherwise provided In this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement Immediately will terminate
(including any obligation to make Loan Advances or disbursements), and, at
Lender's option, all Indebtedness Immediately will become due and payable, all
without notice of any kind to Borrower, except that In the case of an Event of
Default of the type described In the "Insolvency" subsection above, such
acceleration shall be automatic and not optional. In addition, Lender shall have
all the rights and remedies provided In the Related Documents or available at
law, in equity, or otherwise. Except as may be prohibited by applicable law, all
of Lender's rights and remedies shall be cumulative and may be exercised
singularly or concurrently. Election by Lender to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures or to
take action to perform an obligation of Borrower or of any Grantor shall not
affect Lender's right to declare a default and to exercise its rights and
remedies.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT, AND BORROWER AGREES TO ITS TERMS. THIS AGREEMENT IS DATED AS OF
FEBRUARY 24, 1999.
BORROWER:
BY: /S/ Robert L. McGinnis (SEAL)
---------------------------
ROBERT L. MCGINNIS, CEO
LENDER:
SOUTHTRUST BANK, NATIONAL ASSOCIATION
BY: /s/James A. Ray
----------------------------
AUTHORIZED OFFICER
===============================================================================
LASER PRO, REG. U.S. PAT. & T.M.
3
<PAGE> 1
EXHIBIT 10.29 (c)
COMMERCIAL SECURITY AGREEMENT
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PRINCIPAL LOAN DATE MATURITY LOAN NO, CALL COLLATERAL ACCOUNT OFFICER INITIALS
$500,000.00 02-24-1999 CLLOC JRF2Q
- -----------------------------------------------------------------------------------------------------------------------------------
REFERENCES IN THE SHADED AREA ARE FOR LENDER'S USE ONLY AND DO NOT LIMIT THE APPLICABILITY OF THIS DOCUMENT TO ANY PARTICULAR LOAN
OR ITEM.
- -----------------------------------------------------------------------------------------------------------------------------------
BORROWER: BOBBY ALLISON WIRELESS, INC, LENDER: SOUTHTRUST BANK, NATIONAL ASSOCIATION
2055 LAKE AVENUE, S.E., SUITE A NORTH COUNTRYSIDE OFFICE
LARGO, FL 33771 28059 U.S. HWY 19 NORTH
CLEARWATER, FL 33761
===================================================================================================================================
</TABLE>
THIS COMMERCIAL SECURITY AGREEMENT IS ENTERED INTO BETWEEN BOBBY ALLISON
WIRELESS, INC. (REFERRED TO BELOW AS "GRANTOR"); AND SOUTHTRUST BANK, NATIONAL
ASSOCIATION (REFERRED TO BELOW AS "LENDER"). FOR VALUABLE CONSIDERATION, GRANTOR
GRANTS TO LENDER A SECURITY INTEREST IN THE COLLATERAL TO SECURE THE
INDEBTEDNESS AND AGREES THAT LENDER SHALL HAVE THE RIGHTS STATED IN THIS
AGREEMENT WITH RESPECT TO THE COLLATERAL, IN ADDITION TO ALL OTHER RIGHTS WHICH
LENDER MAY HAVE BY LAW.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. All references
to dollar amounts shall mean amounts in lawful money of the United States of
America.
AGREEMENT. The word "Agreement" means this Commercial Security
Agreement, as this Commercial Security Agreement may be amended or modified from
time to time, together with all exhibits and schedules attached to this
Commercial Security Agreement from time to time.
COLLATERAL. The word "Collateral" means the following described
property of Grantor, whether now owned or hereafter acquired, whether now
existing or hereafter arising, and wherever located:
INVENTORY. Chanel Paper, Accounts, Equipment, General Intangibles,
Fixtures and Furniture In addition, the word "Collateral" includes all the
following, whether now owned or hereafter acquired, whether now existing or
hereafter arising, and wherever located:
(a) All attachments, accessions, accessories, tools, parts, supplies,
increases, and additions to and all replacements of and substitutions
for any property described above.
(b) All products and produce of any of the property described in this
Collateral section.
(c) All accounts, general Intangibles, instruments, rents, monies,
payments, and all other rights, arising out of a sale, lease, or other
disposition of any of the property described in this Collateral
section.
(d) All proceeds (including Insurance proceeds) from the sale,
destruction, loss, or other disposition of any of the property
described in this Collateral section.
(e) All records and data relating to any of the property described in
this Collateral section, whether in the form of a writing, photograph,
microfilm, microfiche, or electronic media, together with all of
Grantor's right, title, and interest in and to all computer software
required to utilize, create, maintain, and process any such records or
data on electronic media.
EVENT OF DEFAULT. The words "Event of Default" mean and include without
limitation any of the Events of Default set forth below in the section
fitted "Events of Default."
GUARANTOR. The word "Guarantor" means and includes without limitation
each and all of the guarantors, sureties, and accommodation parties in
connection with the Indebtedness.
INDEBTEDNESS. The word "Indebtedness" means the Indebtedness evidenced
by the Note, including all principal and interest, together with all
other indebtedness and costs and expenses for which Grantor is
responsible under this Agreement or under any of the Related Documents.
In addition, the word 'Indebtedness" includes all other obligations,
debts and liabilities, plus Interest thereon, of Grantor, or any one or
more of them, to Lender, as well as all claims by Lender against
Grantor, or any one or more of them, whether existing now or later;
whether they are voluntary or involuntary, due or not due, direct or
Indirect, absolute or contingent, liquidated or unliquidated; whether
Grantor may be liable Individually or jointly with others; whether
Grantor may be obligated as guarantor, surety, accommodation party or
otherwise; whether recovery upon such indebtedness may be or hereafter
may become barred by any statute of limitations; and whether such
indebtedness may be or hereafter may become otherwise unenforceable.
NOTE. The word "Note" means the note or credit agreement dated February
24, 1999, In the principal amount of $500,000.00 from Bobby Allison
Wireless, Inc. to Lender, together with all renewals of, extensions of,
modifications of, refinancings of, consolidations of and substitutions
<PAGE> 2
for the note or credit agreement.
RELATED DOCUMENTS. The words "Related Documents" mean and Include
without limitation all promissory notes, credit agreements, loan
agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection
with the Indebtedness.
RIGHT OF SETOFF. Grantor hereby grants Lender a contractual security interest in
and hereby assigns, convoys, delivers, pledges, and transfers all of Grantor's
right, title and Interest in and to Grantor's accounts with Lender (whether
checking, savings, or some other account), including all accounts held jointly
with someone else and all accounts Grantor may open in the future, excluding,
however, all IRA and Keogh accounts, and all trust accounts for which the grant
of a security interest would be prohibited by law. Grantor authorizes Lender, to
the extent permitted by applicable law, to charge or setoff all indebtedness
against any and all such accounts, and, at Lender's option, to administratively
freeze all such accounts to allow Lender to protect Lender's charge and setoff
rights provided in this paragraph.
OBLIGATIONS OF GRANTOR. Grantor warrants and covenants to Lender as follows:
PERFECTION OF SECURITY INTEREST. Grantor agrees to execute such
financing statements and to take whatever other actions are requested
by Lender to perfect and continue Lender's security interest in the
Collateral. Upon request of Lender, Grantor will deliver to Lender any
and all of the documents evidencing or constituting the Collateral, and
Grantor will note Lender's Interest upon any and all chattel paper if
not delivered to Lender for possession by Lender. Except in the
ordinary course of Its business, Grantor shall not remove the
Collateral from its existing locations without the prior written
consent of Lender.
REMOVAL OF COLLATERAL. Grantor shall keep the Collateral (or to the
extent the Collateral consists of Intangible property such as accounts,
the records concerning the Collateral) at Grantor's address shown
above, or at such other locations as are acceptable to Lender. Except
in the ordinary course of its business, Including the sales of
Inventory, Grantor shall not remove the Collateral from Its existing
locations without the prior written consent of Lender. To the extent
that the Collateral consists of vehicles, or other titled property,
Grantor shall not take or permit any action which would require
application for certificates of title for the vehicles outside the
State of Florida, without the prior written consent of Lender.
TRANSACTIONS INVOLVING COLLATERAL. Except for inventory sold or
accounts collected in the ordinary course of Grantor's business,
Grantor shall not sell, offer to sell, or otherwise transfer or dispose
of the Collateral. Grantor shall not pledge, mortgage, encumber or
otherwise permit the Collateral to be subject to any lien, security
interest, encumbrance, or charge, other than the security interest
provided for in this Agreement, without the prior written consent of
Lender.
<PAGE> 3
02-24-1999 COMMERCIAL SECURITY AGREEMENT PAGE 2
(CONTINUED)
===============================================================================
TITLE. Grantor represents and warrants to Lender that it holds good and
marketable title to the Collateral, free and clear of all liens and
encumbrances except for the lien of this Agreement. No financing
statement covering any of the Collateral is on file in any public
office other than those which reflect the security Interest created by
this Agreement or to which Lender has specifically consented. Grantor
shall defend Lender's rights in the Collateral against the claims and
demands of all other persons.
MAINTENANCE AND INSPECTION OF COLLATERAL. Grantor shall maintain all
tangible Collateral in good condition and repair. Grantor will not
commit or permit damage to or destruction of the Collateral or any part
of the Collateral. Lender and Its designated representatives and agents
shall have the right at all reasonable times to examine, inspect, and
audit the Collateral wherever located. Grantor shall immediately notify
Lender of all cases involving the return, rejection, repossession, loss
or damage of or to any Collateral; of any request for credit or
adjustment or of any other dispute arising with respect to the
Collateral; and generally of all happenings and events affecting the
Collateral or the value or the amount of the Collateral.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Grantor shall comply
promptly with all laws, ordinances, rules and regulations of all
governmental authorities, now or hereafter In effect, applicable to the
ownership, production, disposition, or use of the Collateral, including
without limitation payment when due of all taxes, assessments and liens
upon the Collateral.
MAINTENANCE OF CASUALTY INSURANCE. Grantor shall procure and maintain
all risks insurance, including without limitation fire, theft and
liability coverage together with such other insurance as Lender may
require with respect to the Collateral, in form, amounts, coverages and
basis reasonably acceptable to Lander and issued by a company or
companies reasonably acceptable to Lender. Grantor, upon request of
Lender, will deliver to Lender from time to time the policies or
certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be canceled or diminished without
at least ten (10) days' prior written notice to Lender and not
Including any disclaimer of the insurer's liability for failure to give
such a notice. Each insurance policy also shall Include an endorsement
providing that coverage in favor of Lender will not be impaired in any
way by any act, omission or default of Grantor or any other person. In
connection with all policies covering assets in which Lender holds or
is offered a security interest, Grantor will provide Lender with such
loss payable or other endorsements as Lender may require.
EXPENDITURES BY LENDER. If not discharged or paid when due, Lender may (but
shall not be obligated to) discharge or pay any amounts required to be
discharged or paid by Grantor under this Agreement, including without limitation
all taxes, lions, security Interests, encumbrances, and other claims, at any
time levied or placed on the Collateral. Lender also may (but shall not be
obligated to) pay all costs for insuring, maintaining and preserving the
Collateral. All such expenditures incurred or paid by Lender for such purposes
will then bear interest at the rate charged under the Note from the date
incurred or paid by Lender to the date of repayment by Grantor. All such
expenses shall become a part of the Indebtedness and, at Lender's option, will
(a) be payable on demand, (b) be added to the balance of the Note and be
apportioned among and be payable with any installment payments to become due
during either (1) the term of any applicable Insurance policy or (11) the
remaining term of the Note, or (c) be treated as a balloon payment which will be
due and payable at the Note's maturity. This Agreement also will secure payment
of these amounts. Such right shall be In addition to all other rights and
remedies to which Lender may be entitled upon the occurrence of an Event of
Default.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this Agreement:
DEFAULT ON INDEBTEDNESS. Failure of Grantor to make any payment when
due on the Indebtedness.
OTHER DEFAULTS. Failure of Grantor to comply with or to perform any
other term, obligation, covenant or condition contained in this
Agreement or in any of the Related Documents or In any other agreement
between Lender and Grantor.
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower default under any
loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Borrower's property or
Borrower's ability to repay the Loans or perform Borrower's obligations
under this Agreement or any related document.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Grantor under this Agreement,
the or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished.
DETECTIVE COLLATERALIZATION. This Agreement or any of the Related
<PAGE> 4
Documents ceases to be in full force and effect (including failure of
any collateral documents to create a valid and perfected security
Interest or lien) at any time and for any reason.
INSOLVENCY. The dissolution or termination of Grantor's existence as a
going business, the insolvency of Grantor, the appointment of a
receiver for any part of Grantor's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against
Grantor.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Grantor or by any
governmental agency against the Collateral or any other collateral
securing the Indebtedness. This includes a garnishment of any of
Grantor's deposit accounts with Lender. However, this Event of Default
shall not apply it there is a good faith dispute by Grantor as to the
validity or reasonableness of the claim which is the basis of the
creditor or forfeiture proceeding and if Grantor gives Lender written
notice of the creditor or forfeiture proceeding and deposits with
Lender monies or a surety bond for the creditor or forfeiture
proceeding, In an amount determined by Lender, in its sole discretion,
as being an adequate reserve or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or such Guarantor
dies or becomes Incompetent.
ADVERSE CHANGE. A material adverse change occurs in Grantor's financial
condition, or Lender believes the prospect of payment or performance of
the Indebtedness Is Impaired.
INSECURITY. Lender, in good faith, deems itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereafter, Lender shall have all the rights of a secured
party under the Florida Uniform Commercial Code. In addition and without
limitation, Lender may exercise any one or more of the following rights and
remedies:
ACCELERATE INDEBTEDNESS. Lender may declare the entire Indebtedness,
including any prepayment penalty which Grantor would be required to
pay, immediately due and payable, without notice.
SELL THE COLLATERAL. Lender shall have full power to sell, lease,
transfer, or otherwise deal with the Collateral or proceeds thereof in
its own name or that of Grantor. Lander may sell the Collateral at
public auction or private sale. Unless the Collateral threatens to
decline speedily in value or is of a type customarily sold on a
recognized market, Lender will give Grantor reasonable notice of the
time after which any private sale or any other Intended disposition of
the Collateral is to be made. The requirements of reasonable notice
shall be met If such notice Is given at least ten (10) days before the
time of the sale or disposition. All expenses relating to the
disposition of the Collateral, including without limitation the
expenses of retaking, holding, insuring, preparing for sale and selling
the Collateral, shall become a part of the Indebtedness secured by this
Agreement and shall be payable on demand, with Interest at the Note
rate from date of expenditure until repaid.
OTHER RIGHTS AND REMEDIES. Lender shall have all the rights and
remedies of a secured creditor under the provisions of the Uniform
Commercial Code, as may be amended from time to time. In addition,
Lender shall have and may exercise any or all other rights and remedies
it may have available at law, in equity, or otherwise.
CUMULATIVE REMEDIES. All of Lender's rights and remedies, whether
evidenced by this Agreement or the Related Documents or by any other
writing, shall be cumulative and may be exercised singularly or
concurrently. Election by Lender to pursue any remedy shall not exclude
pursuit of any other remedy, and an election to make expenditures or to
take action to perform an obligation of Grantor under this Agreement,
after Grantor's failure to perform, shall not affect Lender's right to
declare a default and to exercise its remedies.
2
<PAGE> 5
02-24-1999 COMMERCIAL SECURITY AGREEMENT PAGE 3
(CONTINUED)
===============================================================================
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
APPLICABLE LAW. This Agreement has been delivered to Lender and
accepted by Lender in the State of Florida. If there Is a lawsuit,
Grantor agrees upon Lender's request to submit to the jurisdiction of
the courts of the State of Florida. Lender and Grantor hereby waive the
right to any jury trial in any action, proceeding, or counterclaim
brought by either Lender or Grantor against the other. This Agreement
shall be governed by and construed in accordance with the laws of the
State of Florida.
ATTORNEYS' FEES; EXPENSES. Grantor agrees to pay upon demand all of
Lender's costs and expenses, including reasonable attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may pay someone else to help enforce this
Agreement, and Grantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's reasonable attorneys'
fees and legal expenses whether or not there is a lawsuit, including
reasonable attorneys' fees and legal expenses for bankruptcy
proceedings (and including efforts to modify or vacate any automatic
stay or injunction), appeals, and any anticipated post-judgment
collection services. Grantor also shall pay all court costs and such
additional fees as may be directed by the court.
WAIVER. Lender shall not be deemed to have waived any rights under this
Agreement unless such waiver is given in writing and signed by Lender.
No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or
constitute a waiver of Lender's right otherwise to demand strict
compliance with that provision or any other provision of this
Agreement. No prior waiver by Lender, nor any course of dealing between
Lender and Grantor, shall constitute a waiver of any of Lender's rights
or of any of Grantor's obligations as to any future transactions.
Whenever the consent of Lender is required under this Agreement, the
granting of such consent by Lender in any Instance shall not constitute
continuing consent to subsequent instances where such consent is
required and in all cases such consent may be granted or withheld In
the sole discretion of Lender.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY
AGREEMENT, AND GRANTOR AGREES TO ITS TERMS. THIS AGREEMENT IS DATED FEBRUARY 24,
1999.
GRANTOR
BOBBY ALLISON WIRELESS, INC.
BY: /s/ Robert L. McGinnis (SEAL)
--------------------------
ROBERT L. MCGINNIS, CEO
===============================================================================
LASER PRO, REG. U.S. PAT. & T.M. OFF., VER. 3.26 (C) 1999 CFI PROSERVICES, INC.
ALL RIGHTS RESERVED. [FL-E40 ALLISON. LN C10.OVL]
3
