EXHIBIT 10.1
FIRST COMMERCIAL BANK OF HUNTSVILLE
LOAN AGREEMENT
(Financial Covenants)
Date: __3/10/2005______________
In consideration of the sum of ten dollars in hand paid to each of the
undersigned (hereinafter referred to as "Obligor", whether one or more) and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the Obligor, and in order to induce First Commercial Bank
of Huntsville (hereinafter referred to as "Bank") to extend to Digital Fusion,
Inc. and Digital Fusion Solutions, Inc. (hereinafter cumulatively referred to as
the "Borrower") and Digital Fusion, Inc., Digital Fusion Solutions, Inc., Summit
Research Corporation, Roy E. Crippen, III and Gary S. Ryan (hereinafter
cumulatively referred to as the "Guarantors") from time to time such extensions
of credit, advances and forbearances as the Bank in its sole discretion may deem
prudent and wise (all such indebtedness, obligations and liabilities of the
Borrower to the Bank of every kind, character and description whatsoever, direct
or indirect, absolute or contingent, due or to become due, now existing or
hereafter incurred, contracted or arising, joint or several, liquidated or
un-liquidated, regardless of how they arise or by what agreement or instrument
they may be evidenced or whether they are evidenced by any agreement or
instrument, and whether incurred as maker, drawer, endorser, surety, guarantor
or otherwise, including without limitation obligations of the Borrower purchased
by the Bank, and obligations incurred in connection with the issuance of a
letter of credit, and any and all extensions and renewals of all or any part of
the same are herein collectively referred to as the "Liabilities"), the Obligor,
the Borrower and the Bank agree as follows:
DEFINITIONS
For purposes of this Agreement, except as otherwise expressly provided or unless
the context otherwise requires:
"Accounts" shall have that meaning defined in the Alabama Uniform Commercial
Code.
"Collateral" shall mean any property or assets of Borrower or Obligor or other
security pledged or granted to Bank as security for the Liabilities.
"Debt" shall mean all of Obligor's total liabilities less Subordinated Debt.
"Loan Documents" shall mean any note, loan agreement (other than this Agreement)
or other instrument, document or paper evidencing, securing, guaranteeing, or
executed in connection with all or any part of the Liabilities.
"Subordinated Debt" shall mean indebtedness of the Obligor described in and
unconditionally subordinated to the Bank in any subordination agreement executed
by a subordinate creditor and delivered to the Bank.
"Tangible Net Worth" shall mean Obligor's net worth plus Subordinated Debt less
(i) any and all loans and other advances to affiliates, subsidiaries, owners,
parent, employees, officers, stockholders, directors or other related entities
of Obligor; (ii) notes, notes receivable, accounts, accounts receivable,
inter-company receivables, and other amounts owing from affiliates,
subsidiaries, owners, parent, employees, officers, stockholders, directors or
other related entities of Obligor; and (iii) any and all intangibles of Obligor.
Accounting terms used in this Agreement, such as "accounts receivable,""current
maturities of long term debt," "inventory," "net income," "net worth" and "total
liabilities" shall have the meanings normally given them by, and shall be
calculated, both as to amounts and classification of items, in accordance with,
generally accepted accounting principles in the United States. Singular terms
shall include the plural as well as the singular and vice versa.
REPRESENTATIONS AND WARRANTIES
Obligor represents and warrants to Bank, at all times while any Liabilities
remain unsatisfied, as follows: (1) If Obligor is a corporation, partnership or
limited liability company, Obligor is duly organized, validly existing, and in
good standing under the laws of the jurisdiction in which Obligor was organized,
and Obligor is duly qualified and in good standing (and will remain so qualified
and in good standing) in every state in which it is or shall be doing business
or in which the failure so to qualify and remain in good standing would or could
have an adverse effect on its business or properties or Bank; (2) There are no
actions, suits or proceedings pending or, to Obligor's best knowledge,
threatened against or affecting Obligor or the Collateral that involve any of
the transactions contemplated in this Agreement or the possibility of any
judgment or liability that may result in a material adverse change in Obligor's
operations or condition or the Collateral; (3) Obligor is not a party to any
instrument, or subject to any restriction, that materially and adversely affects
Obligor's operations or condition, and Obligor is not in default in any of the
obligations contained in any instrument to which Obligor is a party that could
have a material adverse effect upon Obligor's operations or condition; and (4)
Obligor has full right, power and authority to enter into the Loan Documents to
which it or (s)he is a party and to consummate the transactions contemplated
thereby and has taken all necessary action to authorize the execution, delivery
and performance of such Loan Documents and the documents contemplated to be
executed and delivered thereby.
COVENANTS
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Obligor and Borrower covenant and agree with Bank, at all times while any
Liabilities remain unsatisfied, as follows:
1. Obligor shall submit or cause to be submitted to Bank such financial and
other information which Bank shall reasonably request regarding Borrower, the
Collateral and Obligor when and as requested by Bank, including without
limitation: (i) Obligor's and Borrower's monthly financial statements within
forty-five (45) days after the close of each calendar month in each fiscal year
including a balance sheet as of the close of such period and a fiscal year to
date income statement in accordance with generally accepted accounting
principles and attested to by an authorized officer of Obligor or Borrower, as
the case may be; (ii) Obligor's and Borrower's audited fiscal year-end financial
statements within one hundred twenty (120) days after the close of each fiscal
year, including a balance sheet as of the close of such period, an income
statement, and a reconciliation of stockholders' equity prepared by a certified
public accountant acceptable to Bank in accordance with generally accepted
accounting principles; (iii) annual personal financial statements of any
guarantor of the Liabilities (as of December 31 of each year) within ninety (90)
days of the close of each calendar year; and (iv) a borrowing base compliance
certificate per the attached exhibit "A" along with an aging of accounts
receivables within 15 days of month end (v) any other financial information as
Bank may request from time to time, including but not limited to that
information as may be required for Bank to determine Obligor's or Borrower's
compliance with the terms of this Agreement.
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2. Obligor shall (i) maintain insurance (written by insurance companies
reasonably acceptable to Bank) in form, amount and substance reasonably
acceptable to Bank, including, without limitation, worker's compensation,
general liability insurance, property "all risk" insurance upon Obligor's
property (in an amount at least equal to its full insurable value) and insurance
on all facets of its businesses and all the Collateral; (ii) furnish to Bank,
upon request, a statement of the insurance coverage.
3. Obligor does and shall comply with all laws, ordinances, rules and
regulations of any governmental authority or entity governing or affecting
Obligor, any of its property, the Collateral or any part thereof, and shall
immediately notify Bank of any and all alleged or asserted violations of any
such laws, ordinances or regulations.
4. Obligor shall not sell, transfer, lease, pledge, abandon, grant any lien
on or security interest in, or otherwise encumber or dispose of any of its
accounts receivable, including without limitation the Collateral or any interest
therein, and Obligor shall not permit or suffer to exist any lien, security
interest or other encumbrance on any of its accounts receivable.
5. Guarantors shall not guarantee, endorse or assume, either directly or
indirectly, any indebtedness greater than $200,000 in aggregate of any other
corporation, person, or entity without prior written consent of the bank.
6. Obligor will not incur, create, assume or permit to exist any debt of
Obligor other than (a) existing debt reflected in the most recent balance sheet
of Obligor delivered to Bank on or prior to the date hereof, (b) debt to the
Bank, (c) trade payables and other current liabilities incurred or accrued by
the Obligor in the ordinary course of business, (d) the extension or receipt of
normal trade terms with respect to customers and suppliers, (e) any specific
debt in connection with a special transaction for which advance approval is
sought and obtained from the Bank, (f) unsecured debt to the owners of the
Obligor that is payable on terms as favorable to the Obligor as those that would
be available to the Obligor in arms-length commercial transactions with
commercial bank lenders, (g) leases of equipment and real estate incurred in the
ordinary course of the Obligor's business, and (h) debt incurred solely for the
purchase of fixed assets acquired or held by Obligor in the ordinary course of
business.
7. Obligor shall permit Bank or any persons duly designated by Bank to call
at the places of business of Obligor at any reasonable time, and without
hindrance or delay to visit, inspect, audit and check any of Obligor's
properties, books, records, journals, orders, receipts and any correspondence or
other data relating to Obligor's business or any other transactions between or
among the parties hereto, and to make copies thereof and take extracts there
from, and to discuss Obligor's financial affairs with Obligor's financial
officers and accountants.
8. Obligor shall comply with all applicable present and future local, state
and federal laws, including, without limitation, environmental laws and
regulations.
9. Obligor shall maintain its principal transaction account with Bank.
10. In the event Obligor has a revolving loan or line of credit with Bank,
the sum of eighty percent (80%) of its eligible accounts receivable as
determined by the bank (excluding any accounts receivable that are aged 120 days
or greater) will at all times exceed the sum of the outstanding principal
balance of said revolving loan or line of credit. Furthermore, advances against
eligible accounts receivable due to Summit Research Corporation will be limited
to $2,000,000.00 (Two Million and no/100 U.S. Dollars). In the event of default
Obligor agrees upon Bank request to cooperate in the filing and perfection of
assignment of claims documents on all Federal Government contracts.
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EVENTS OF DEFAULT; ACCELERATION.
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Any or all of the Liabilities shall be, at the option of Bank and
notwithstanding any time or credit allowed by any instrument evidencing any of
the Liabilities or under any of the Loan Documents, immediately due and payable
without notice or demand, and the obligation of Bank to make advances under any
revolving line of credit, or other loan shall immediately cease and terminate
upon the occurrence of any of the following events of default (singularly an
"Event of Default"): (1) default in the payment or performance, when due or
payable, of any of the Liabilities, or of any liability or obligation (whether
now or hereafter existing, arising or incurred, direct or indirect, conditional
or unconditional) of any endorser, guarantor, or surety for any of the
Liabilities (severally a "Promisor"); (2) failure by Obligor, Borrower or any
other person or entity, as applicable, to (a) pay or perform any act or
obligation imposed hereby or by any of the other Loan Documents, or (b) comply
with any of the terms, conditions, covenants or requirements described herein or
contained or referenced in one or more of the Loan Documents; (3) failure of
Obligor, Borrower or any other person or entity, as applicable, to pay when due
(a) any tax (subject to the right of Obligor to contest same as provided in
paragraph 17 hereof), or (b) any premium on (i) any insurance policy assigned to
Bank, or (ii) any insurance covering any Collateral; (4) if any warranty or
representation contained herein shall prove false or misleading with respect to
a material fact or if Obligor or Borrower or any Promissory made or makes any
other misrepresentation to Bank for the purpose of obtaining credit or any
extension of credit; (5) failure of Obligor, Borrower or any Promisor to furnish
financial information or to permit the inspection of the books or records or
Collateral of Obligor, Borrower or of any Promisor; (6) the loss, theft, damage,
sale, destruction or encumbrance of any uninsured material portion of the
Collateral, or the sale or encumbrance or the issuance of any execution or the
making of any levy, seizure or attachment thereof or thereon; (7) the
insolvency, dissolution, liquidation, suspension of business or death of the
Obligor or the Borrower or of any Promisor, or of any of the Obligor's or the
Borrower's or such Promissor's principal officers if a corporation, or of any of
the Obligor's or the Borrower's general partners if a partnership; (8) the
Obligor or the Borrower or any Promisor shall (i) fail or admit in writing the
inability of the Obligor or the Borrower or any Promisor to pay the Obligor's or
the Borrower's or such Promisor's debts generally as they become due, (ii) make
a general assignment for the benefit of creditors or have an order for relief
entered against the Obligor or the Borrower or any Promisor in any proceeding
under the Federal bankruptcy code, or (iii) file a voluntary petition in
bankruptcy, or a petition or an answer seeking reorganization or an arrangement
with creditors or take advantage of any bankruptcy, reorganization, insolvency,
readjustment of debt, dissolution or liquidation law or statute, or an answer
admitting the material allegations of a petition filed against the Obligor or
the Borrower or such Promisor in any proceeding under any such law, or if
corporate or partnership action should be taken by the Obligor or the Borrower
or any Promisor for the purpose of effecting any of the foregoing; (9) the
appointment of a receiver trustee, liquidator or custodian of the Obligor or the
Borrower or any Promisor or of any of their respective properties or assets;
(10) the filing of a petition without the application, approval or consent of
the Obligor or the Borrower or any Promisor in any court of competent
jurisdiction, seeking the bankruptcy or reorganization of the Obligor or the
Borrower or of any Promisor or of all or a substantial part of their respective
properties or assets, or seeking an arrangement with the creditors of any of
them, and such petition shall not be dismissed within 30 days after the filing
thereof; (11) any change in the ownership nature, management or control of
Borrower or Obligor without the prior written consent of Bank; (12) failure of
Obligor or Borrower or any other person or entity to maintain any insurance
required hereunder and/or assigned or pledged to Bank in connection with any of
the Loan Documents; (13) fraud or misrepresentation by or on behalf of Obligor
or Borrower in Obligor's or Borrower's transactions with Bank; (14) violation of
or failure to abide by any covenant, term or provision of this Agreement or any
of the Loan Documents; or the termination, cancellation or revocation of any
Loan Document without Bank's consent or the determination that any of the Loan
Documents is void, voidable or unenforceable; (15) any default or event of
default under any of the Loan Documents; or (16) any default or event of default
of Obligor or Borrower under any other loan or indebtedness owing by Obligor or
Borrower to Bank, whether or not arising under the Loan Documents.
Notwithstanding the foregoing, Obligor or Borrower shall have sixty (60)
calendar days to cure any Event of Default without penalty, termination or
payment demand of this Loan Agreement.
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Digital Fusion, Inc., Obligor
Digital Fusion, Inc., Borrower
By: /s/ Roy E. Crippen, III By: /s/ Gary S. Ryan
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Its: CEO Its: President
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Digital Fusion Solutions, Inc., Borrower
Digital Fusion Solutions, Inc., Obligor
By: /s/ Roy E. Crippen, III By: /s/ Gary S. Ryan
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Its: President Its: President
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Summit Research Corporation, Obligor
Summit Research Corporation, Guarantor
By: /s/ Roy E. Crippen, III
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Its: President
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/s/ Roy E. Crippen, III
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Roy E. Crippen, III, Guarantor
/s/ Gary S. Ryan
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Gary S. Ryan, Guarantor
First Commercial Bank of Huntsville, Bank
By: /s/ Andy Kattos
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Its: Senior Vice President
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Loan Number 69403234 / 50
DIGITAL FUSION, INC. FIRST COMMERCIAL BANK Date 03/10/2005
DIGITAL FUSION SOLUTIONS, INC. OF HUNTSVILLE Maturity Date 04/10/2006
4940 CORPORATE DRIVE NW 301 WASHINGTON STREET Loan Amount $ 2,500,000.00
SUITE A HUNTSVILLE, AL 35801
HUNTSVILLE, AL 35808 Fed. Tax ID 13-3817344
BORROWER'S NAME AND ADDRESS LENDER'S NAME AND ADDRESS
"I" includes each borrower above, "You" means the lender, its successors
jointly and severally. and assigns.
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For value received, I promise to pay to you, or your order, at your address
above the PRINCIPAL sum of **TWO MILLION FIVE HUNDRED THOUSAND DOLLARS AND ZERO
CENTS** Dollars $ 2,500,000.00
|_| Single Advance: I will receive all of this principal sum on ___________. No
additional advances are contemplated under this note.
|X| Multiple Advances: The principal sum shown above is the maximum amount of
principal I can borrow under this note. On March 10, 2005, I will receive
the amount of $696,600.00 and future principal advances are contemplated.
Conditions: The conditions for future advances are AS DESCRIBED IN LOAN
AGREEMENT DATE 03/10/2005
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|X| Open End Credit: You and I agree that I may borrow under this Note,
prepay this Note in whole or in part, and borrow again under this
Note, so long as the aggregate unpaid principal amount owed under this
Note at any time does not exceed the amount of the principal sum set
forth above. My right to borrow is subject to all other conditions of
this Note expires on April 10, 2006.
|_| Closed End Credit: You and I agree that I may borrow in aggregate an
amount not to exceed the principal sum shown above. Amounts I repay
under this Note may not be re-borrowed later. My right to borrow is
subject to all other conditions and expires on _________________.
|X| INTEREST: I agree to pay interest on the outstanding principal balance from
March 10, 2005 at the rate of 5.500000% per year until the index rate
changes . Variable Rate: This rate may then change as stated below.
|X| Index rate: The future rate will be 0.000% ABOVE the following index
rate:_________________
LENDER'S PRIME, WHICH IS THE BASE RATE USED BY LENDER TO SET INTEREST RATES
AT WHICH LOANS ARE MADE TO VARIOUS CUSTOMERS. LOANS MAY BE MADE AT, ABOVE
OR BELOW SAID PRIME RATE.
|_| No Index: The future rate will not be subject to any internal or
external index. It will be entirely in your control.
|X| Frequency and Timing: The rate on this note may change as often as
DAILY . A change in the interest rate will take effect WHEN THE INDEX
RATE CHANGES .
|X| Limitations: During the term of this loan, the applicable .annual
interest rate will not be more than ________ % or less than 5.00% The
rate may not change more than __________________% each
_________________.
Effect of Variable Rate: A change in the Interest rate will have the
following effect on the payments:
|X| The amount of each scheduled payment will change.
|_| The amount of the final payment will change.
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ACCRUAL METHOD: Interest will be calculated on an ACTUAL # DAYS/360 - DAY
YEAR basis.
POST MATURITY RATE: I agree to pay Interest on the unpaid balance of this
note owing after maturity, and until paid in full, as stated below:
|X| on the same fixed or variable rate basis in effect before maturity
(as indicated above).
|_| at a rate equal to
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|X| LATE CHARGE: I agree to pay a late charge on the portion of any payment not
made within 10 days after it is due equal to 5% OF THE UNPAID AMOUNT WITH A
MINIMUM OF $25.00 .
|X| ADDITIONAL CHARGES: In addition to interest, I agree to pay the following
charges which |_| are |X| are not included in the principal amount above:
$2500.00 BANK ORIGINATION; $250.00 BANK PROCESSING, $55.00 UCC FILING
PAYMENTS: I agree to pay this note as follows:
|X| Interest: l agree to pay accrued Interest MONTHLY Beginning April 10, 2005
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|X| Principal: I agree to pay the principal April 10, 2006
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|_| Installments: I agree to pay this note in ________ payments. The first
payment of $_________ will be due ___________________ . A payment of $
_____________will be due _______ thereafter. The final payment of the
entire unpaid balance of principal and interest will be due ______.
PURPOSE: The purpose of this loan is WORKING CAPITAL
ADDITIONAL TERMS:
THIS LOAN IS DUE ON DEMAND, BUT IF NO DEMAND IS MADE, THEN ON 06/15/2005.
THIS LOAN IS ALSO SECURED BY BUT NOT LIIMITED TO THE FOLLOWING:
LOAN AGREEMENT DATED 03/10/2005; SUBORDINATION AGREEMENT DATED 06/30/2004;
SECURITY AND SUBORDINATION AGREMENT DATED 01/03/2005; COMMERCIAL SECURITY
AGREEMENT DATED 03/10/2005.
SECURITY AGREEMENT
SECURITY INTEREST: I grant you a security interest in all of the Property
described below that I now own and that I may own in the future including, but
not limited to, all parts, accessories, repairs, improvements, and accessions to
the Property, wherever the Property is or may be located, and all cash and
non-cash proceeds and products from the Property, and all supporting obligations
that relate to or arise out of any of the Property (including things In action)
described below, all documents that now or hereafter evidence any of the
Property described below or the right to receive, hold, or dispose of any of
that Property.
|_| Inventory: All Inventory, whether now owned or hereafter acquired by Debtor,
Including all goods, other than farm, which now or hereafter:
(a) are leased by Debtor as lessor;
(b) are held by Debtor for sale or lease or to be furnished under a contract of
service;
(c) are furnished by Debtor under a contract of service; or
(d) consist of raw materials, work in process, or materials used or consumed in
Debtor's business.
|_| Equipment: All equipment, whether now owned or hereafter acquired by Debtor,
Including 811 goods now or hereafter owned by Debtor other than inventory, farm
products, and consumer goods, and Including all machinery, motor vehicles,
furniture, trade or business fixtures, manufacturing equipment, mobile
equipment, farm machinery and equipment, shop equipment, office equipment,
record-keeping equipment, parts and tools, computer and printing equipment, and
all goods which are, or are to become, fixtures. All equipment described in any
list or schedule which Debtor gives to Secured Party is also included in the
Property, but delivery of such a list is not necessary for the attachment of
Secured Party's security interest in Debtor's equipment as described above, and
Secured Party's security interest is not limited to the Property described in
any such list or schedule.
|_| Farm Products: All farm products, whether now owned or hereafter acquired by
Debtor, including all goods, other than standing timber, with respect to which
Debtor Is engaged in raising, cultivating, propagating, fattening, grazing or
any other farming, livestock, or aqua cultural operation and which are:
(a) crops grown, growing, or to be grown, including:
(i) crops produced on trees, vines, and/or bushes; and
(ii) aquatic goods produced in aquaculture operations;
(b) livestock born or unborn, Including aquatic goods produced in acquacultural
operations;
(c) feed, seed, fertilizer, medicines, or other supplies used or produced in
Debtor's farming operation: or
(d) products of crops or livestock in their unmanufactured states.
|X| Accounts: All accounts of debtor, whether now owned or existing or hereafter
acquired or arising, including all rights of Debtor to payment of a monetary
obligation, whether or not earned by performance, and whether originally owed to
Debtor or acquired by Debtor after the obligation came into existence:
(a) for property that has been or is to be sold, leased, licensed, asslgned, or
otherwise disposed of:
(b) for services rendered or to be rendered;
(c) for a policy of insurance issued or to be issued;
(d) for a secondary obligation incurred or to be incurred:
(e) for energy provided or to be provided;
(f) for the use or hire of a vessel under a charter or other contract;
(g} arising out of the use of a credit or charge card or information contained
on or for use with the card;
(h) as winnings in a lottery or other game of chance operated or sponsored by a
State, governmental unit of a State, or person licensed or authorized to operate
the game by a State or governmental unit of a State; and
(i) arising out of an interest in or claim under a policy or policies of
Insurance for healthcare goods or services provided.
|_| Instruments (Including Promissory Notes), Documents, Chattel Paper
(including Electronic Chattel Paper), Letter-of-Credit Rights, and Other Rights
to Payment: All of Debtor's right. title, and interest, whether now owned or
existing or hereafter arising or acquired, in and to all instruments, documents,
chattel paper, letter-of-credit rights, and other rights to payment. Including:
(a) all negotiable instruments, including promissory notes and any other
writings that evidence a right to payment of a monetary obligation and are not
themselves a security agreement or lease, and that are of a type that in
ordinary course of business are transferred by delivery with any necessary
endorsement or assignment, but not including investment property, letters of
credit, or writings that evidence a right to payment arising out of the use of a
credit or charge card or information contained on or for use with the card;
(b) all documents of title and all receipts of the type described in Section
7-201(2) of the Uniform Commercial Code;
(c) all chattel paper, including any record or records that evidence both a
monetary obligation and a security interest In specific goods, a security
interest in specific goods and software used in the goods, a lease of specific
goods, or a lease of specific goods and license of software used in the goods
(but not including charters or other contracts involving the use or hire of a
vessel or records that evidence a right to payment arising out of the use of a
credit or charge card or information contained on or for use with the card), and
including all chattel paper evidenced by a record or records consisting of
information stored in an electronic medium; and
(d) all letters of credit and letter-of-credit rights, including all rights of
Debtor to payment or performance under a letter-of-credit, whether or not the
beneficiary has demanded or is at the time entitled to demand payment or
performance.
|_| General Intangibles: All general intangibles, whether now owned or hereafter
acquired by Debtor, including any personal property, things in action,
payment intangibles, tax refunds, applications for patents, patents,
copyrights, trademarks, trade names, trade secrets, service marks. Goodwill,
customer lists, permits and franchises, licenses, software, the right to use
Debtor's name and likeness, and all property and rights described under the
heading "Government Payments and Programs" below (which description is
incorporated herein by this reference), but not Including accounts, chattel
paper, commercial tort claims, deposit accounts, documents, goods,
instruments, investment property, letter-of-credit rights, letters of credit,
money. or oil, gas, or other minerals before extraction (as those terms are
defined or used in Article 9 of the Uniform Commercial Code).
|_| Deposit Accounts: All deposit accounts, whether now owned or hereafter
acquired by Debtor, including all demand, time, savings, passbook., or
similar accounts maintained with a bank, or other financial institution, but
not including investment property or accounts evidenced by an instrument.
|_|Investment Property: All of Debtor's investment property, whether now owned
or hereafter acquired, including all securities, whether certificated or
uncertificated, securities entitlements, securities accounts, commodity
contracts, and commodity accounts.
|_| Commercial Tort Claims: All rights of Debtor now existing or hereafter
arising in that certain tort claim more particularly described as follows
(provide description of tort claim):
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|_|Government Payments and Programs: All payments, accounts, general
intangibles, or other benefits (including, but not limited to, payments in and
conservation reserve payments) in which Debtor now has and in the future may
have any rights or interest and which arise under or as a result of any
pre-existing, current or future federal or state governmental program
(including, but not limited to, all programs administered by the Commodity
Credit Corporation and ASCS).
|X|Specific Property: All of Debtor's right, title and interest, whether now
owned or hereafter acquired, in the following property (all without limiting the
generality of the applicable descriptions set forth above: ALL INVOICES,
ACCOUNTS RECEIVABLE, ACCOUNTS, CONTRACT RIGHTS, DOCUMENTS THEREBY AND ALL
PROCEEDS THEREOF OF THE DEBTOR'S BUSINESS WHETHER NOW OR HEREAFTER EXISTING OR
ACQUIRED
|_| Standing Timber: All of Debtor's right, title and interest, whether now
owned or hereafter acquired, in standing timber located on the real property
described below, and all cutting rights with respect thereto:
|_| As Extracted Collateral: All of Debtor's rights, title, and interest,
whether now owned or hereafter acquired, in all oil, gas, and other minerals
extracted from the real property described below, and all accounts arising out
of the safe at the wellhead, mine head, or mine of oil, gas, or other minerals
from such real property.
|_| Where the property Includes goods that are or are to become fixtures, or
standing timber, or as-extracted collateral: The legal description of the real
property on which such Property is or will be located is (provide legal
description of the or other sufficient description of real property:
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The record owner of the real property, (if other than Debtor) is (provide name
of record owner of real property, (other than Debtor)
If this agreement covers timber to be cut, minerals (including oil and gas),
fixtures or crops growing or to be grown, the legal description is:
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? If checked, the file this agreement on the real estate records.
Record owner (if not me) ___________
ADDITIONAL TERMS OF THE SECURITY AGREEMENT
GENERALLY - This agreement secures this note and any other debt I have with you,
now or later. However, it will not secure other debts if you fail this security
agreement or if you fail to give any required notice of the right of rescission.
If property described in this agreement is located in another state, this
agreement may also, in some circumstances, be governed by the law of the state
in which the Property is located. All locations referenced to "this note" or
"this agreement" or "this loan" shall mean this Universal Note and Security
Agreement.
OWNERSHIP AND DUTIES TOWARD PROPERTY: I represent that I own all of the
Property, or to the extent, this is a purchase money security interest, I will
acquire ownership of the Property with the proceeds of the loan. I will defend
it against any other claim. Your claim to the Property is ahead of the claims of
any other creditor. I agree to do whatever you require to protect the loan your
security interest and to keep your claim in the Property ahead of the claims of
other creditors. I will not do anything to harm your position.
I will keep books, records, and accounts about the Property and my business in
general. I will let you examine these records at any reasonable time. I will
prepare any report or accounting you request, which deals with the Property.
I will keep the Property in my possession and will keep it in good repair and
use it only for the purpose(s) described on page 1 of this written permission. I
represent that I am the original owner of the Property and, if I am not, that I
have provided you with a list of prior owners of the Property.
I will keep the Property at my address listed on page 1 of this agreement,
unless we agree I may keep it at another location. If the Property is to be used
in another state, I will give you a list of those states. I will not try to sell
the Property unless it is inventory or I receive your written permission to do
so. If I sell the Property I will have the payment made payable to the order of
you and me.
I will pay all taxes and charges on the Property as they become due. You have
the right of reasonable access in order to inspect the Property. I will
immediately inform you of any loss or damage to the Property.
If I fail to perform any of my duties under this security agreement, or any
mortgage, deed of trust, lien or other security interest, you may without notice
to me perform the duties or cause them to be performed. Your right to perform
for me shall not create an obligation to perform and your failure to perform
will not preclude you from exercising any of your other rights under the law or
this security agreement.
PURCHASE MONEY SECURITY INTEREST - For the sole purpose of determining the
extent of a purchase money security interest arising under this security
agreement: (a) payments on any non-purchase money loan also secured by this
agreement will not be deemed to apply to the Purchase Money Loan, and (b)
payments on the Purchase Money Loan will be deemed to apply first to the
non-purchase money portion of the loan, if any, and then to the purchase money
obligations in the order in which the items of collateral were acquired or if
acquired at the same time, in the order selected by you. No security interest
will be terminated by application of this formula. "Purchase Money Loan" means
any loan the proceeds of which, in whole or in part, are used to acquire any
collateral securing the loan and all extensions, renewals, consolidations and
refinancing of such loan.
PAYMENTS BY LENDER - You are authorized to pay, on my behalf, charges I am or
may become obligated to pay to preserve or protect the secured property (such as
property insurance premiums). You may treat those payments as advances and add
them to the unpaid principal under the note secured by this agreement or you may
demand immediate payment of the amount advanced. INSURANCE - I agree to buy
insurance on the Property against the risks and for the amounts you require and
to furnish you continuing proof of coverage. I will have the insurance company
name you as loss payee on any such policy. You may require added security if you
agree that insurance proceeds may be used to repair or replace the Property. I
will buy insurance from a firm licensed to do business in the state where the
property is located. The firm will be reasonably acceptable to you. The
insurance will remain in force until the Property is released from this
agreement. If I fail to buy or maintain the insurance (or fail to name you as
loss payee) you may purchase it yourself.
WARRANTIES AND REPRESENTATIONS - If this agreement includes accounts, I will not
settle any account for less than its full value without your written permission.
I will collect all accounts until you tell me otherwise. I will keep in trust
for you the proceeds from all the accounts and any goods which are returned to
me or which I take back. I will not mix them with any other property of mine. I
will deliver them to you at your request. If you ask me to pay you the full
price on any returned items or items retaken by myself, I will do so.
If this agreement covers inventory, I will not dispose of it except in
my ordinary course of business at the fair market value for the Property, or at
a minimum price established between you and me.
If this agreement covers farm products I will provide you, at your
request, a written list of the buyers, commission merchants, or selling agents
to or through whom I may sell my farm products. In addition to those parties
named on this written list, I authorize you to notify at your sole discretion
any additional parties regarding your security interest in my farm products. I
remain subject to all applicable penalties for selling my farm products in
violation of my agreement with you and the Food Security Act. In this paragraph
the terms farm products, buyers, commission merchants and selling agents have
the meanings given to the in the Federal Food Security Act of 1985.
REMEDIES - I will be in default on this security agreement if I am in default on
any note this agreement secures or if I fail to keep any promise contained in
the terms of this agreement. If I default, you have all of the rights and
remedies provided in the note and under the Uniform Commercial Code. You may
required me to make the secured property available to you at a place which is
reasonably convenient. You may take possession of the secured property and sell
it as provided by law. The proceeds will be applied first to your expenses and
then to the debt. I agree that 10 days written notice sent to my last known
address by first class mail will be reasonable notice under the Uniform
Commercial Code. My current address is on page 1. I agree to inform you in
writing of any change of my address. You may demand immediate payment of the
debt(s) if the debtor is not a natural person and without your prior written
consent; (1) a beneficial interest in the debtor is sold or transferred, or (2)
there is a change in either the identity or number of members of a partnership,
or (3) there is a change in ownership of more than 25 percent of the voting
stock of a corporation.
FILING - A carbon, photographic or other reproduction of this security agreement
or the financing statement covering the Property described in this agreement may
be used as a financing statement where allowed by law. Where permitted by laws,
you may file a financing statement which does not contain my signature, covering
the Property secured by this agreement.
ADDITIONAL TERMS OF THE NOTE
DEFINITIONS - As used on pages 1, 2, and 3, "terms" means the terms that apply
to this load. "I", "me", or "my" means each Borrower who signs this note and
each other person or legal entity (including guarantors, endorsers, and
sureties) who agrees to pay this note (together referred to as "us"). "You" or
"your" means the Lender and its successors and assigns.
APPLICABLE LAW - The laws of the United States and, to the extent not
inconsistent therewith, the laws of the state of Alabama. Any term of this
agreement, which is contrary to applicable laws, will not be effective, unless
the law permits you and me to agree to such a variation. If any provision of
this agreement cannot be enforced according to its terms, this fact will not
affect the enforceability of the remainder of this agreement. No modification of
this note or any agreement securing this note is effective unless the
modification is in writing and signed by you and me. Time is of the essence in
this agreement.
PAYMENTS - Each payment of principal and interest I make on this note will first
reduce the amount I owe you for charges, which are neither interest nor
principal. The remainder of each payment will then reduce accrued unpaid
interest, and then unpaid principal. If you and I agree to a different
application of payments, we will describe our agreement on this note. I may
prepay a part of, or the entire balance of this loan without penalty, unless we
specify to the contrary on this note. Any partial prepayment will not excuse or
reduce any later scheduled payment until this note is paid in full (unless, when
I make the prepayment, you and I agree in writing to the contrary).
INTEREST - Interest accrues on the principal remaining unpaid from time to time,
until paid in full. If I receive the principal in more than one advance, each
advance will start to earn interest only when I receive the advance. The
interest rate in effect on this note at any given time will apply to the entire
principal sum outstanding at that time. Notwithstanding anything to the
contrary, I don not agree to pay and you do not intend to charge any rate of
interest that is higher than the maximum rate of interest you could charge under
applicable law for the extension of credit that is agreed to in this note
(either before or after maturity). If any notice of interest accrual is sent and
is in error, we mutually agree to correct it, and if you actually collect more
interest than allowed by law and this agreement, you agree to refund it to me.
INDEX RATE - The index will serve only as a device for setting the interest rate
on this note. You do not guarantee by selecting this index or the margin, that
the interest rate on this note will be the same rate you charge on any other
loans or class of loans you make to me or other borrowers.
POST MATURITY DATE - For purposes of deciding when the "Post Maturity Rate"
(shown on page 1) applies, the term "maturity" means the date of the last
scheduled payment indicated on page 1 of this note or the date you accelerate
payment on the note, whichever is earlier.
SINGLE ADVANCE LOAND - If this is a single advance loan, you and I expect that
you will make only one advance of principal. However, you may add other amounts
to the principal if you make any payments described in the "PAYMENTS BY LENDER"
paragraph herein.
MULTIPLE ADVANCE LOANS - If this is a multiple advance loan, you and I expect
that you will make more than one advance of principal. If this is closed end
credit, repaying a part of the principal will not entitle me to additional
credit.
SET-OFF - I agree that you may set off any amount due and payable under this
note against any right I have to receive money from you.
"Right to receive money from you" means:
(1) any deposit account balance I have with you;
(2) any money owed to me on an item presented to you or in your
possession for collection or exchange; and
(3) any repurchase agreement or other nondeposit obligation.
"Any amount due and payable under this note" means the total amount of
which you are entitled to demand payment under the terms of this note at the
time you set off. This total includes any balance the due date for which you
properly accelerate under this note.
If my right to receive money from you is also owned by someone who has
not agreed to pay this note, your right of set-off will apply to my interest in
the obligation and to any other amounts I could withdraw on my sole request or
endorsement. Your right of set-off does not apply to an account or other
obligation where my rights are only as a representative. It also does not apply
to any Individual Retirement Account or other tax-deferred retirement account.
You will not be liable for the dishonor of any check when the dishonor
occurs because you set off this debt against any of my accounts. I agree to hold
you harmless from any such claims arising as a result of your exercise of your
right to set-off.
DEFAULT - I will be in default if any one or more of the following occur:
(1) I fail to make a payment on time or in the amount due; (2) I fail to
keep the Property insured, if required; (3) I fail to pay, r keep any
promise, on any debt or agreement I have with you; (4) any other
creditor of mine attempts to collect any debt I owe him through court
proceedings; (5) I die, am declared incompetent, make an assignment
for the benefit of creditors, or become insolvent (either because my
liabilities exceed my assets or I am unable to pay my debts as they
become due); (6) I make any written statement or provide any financial
information that is untrue or inaccurate at the time it was provided;
(7) I do or fail to do something which causes you to believe you will
have difficulty collecting the amount I owe you; (8) any collateral
securing this note is used in a manner or for a purpose which
threatens confiscation by a legal authority; (9) I change my name or
assume an additional name without first notifying you before making
such a change; (10) I fail to plant, cultivate and harvest crops in
due season; (11) any loan proceeds are used for a purpose that will
contribute to excessive erosion of highly erodible land or the
conversion of wetlands to produce and agricultural commodity, as
further explained 7 C.F.R. Part 1940, Subpart G, Exhibit M.
REMEDIES - If I am in default on this note you have, but are not limited to, the
following the following remedies:
(1) You may demand immediate payment of all I owe you under this note
(principal, accrued unpaid interest and other accrued unpaid charges).
(2) You may set off this debt against any right I have to the payment of
money from you, subject to the terms of the "SET-OFF" paragraph
herein.
(3) You may demand security, additional security, or additional parties to
be obligated to pay this note as a condition for not using any other
remedy.
(4) You may refuse to make advances to me or allow purchases on credit by
me.
(5) You may use any remedy you have under state or federal law.
(6) You may make use of any remedy given to you in any agreement securing
this note.
By selecting any one or more of these remedies you do not give up your
right to use later any other remedy. By waiving your right to declare an event
to be a default, you do not waive your right to consider later the event a
default if it continues or happens again.
COLLECTION COSTS AND ATTORNEYS' FEES - I agree to pay you all reasonable costs
you incur to collect this debt or realize on any security. This includes, if the
amount financed is more than $300.00 your reasonable attorneys' fees of up to
15% of the unpaid debt if you refer collection of the note to an attorney who is
not your salaried employee. This provision also shall apply if I file a petition
or any other claim for relief under any bankruptcy rule or laws of the United
States, or if such petition or other claim for relief is filed against me by
another.
WAIVER - I give up my rights to required you to do certain things. I will not
require you to:
(1) demand payment of amounts due (presentment)
(2) obtain official certification of nonpayment (protest); or
(3) give notice that amounts due have not been paid (notice of dishonor).
I waive any defenses I have based on surety ship or impairment of
collateral to the extent permitted by law, I also waive all personal property
exemptions in the property securing this loan. OBLIGATIONS INDEPENDENT - I
understand that I must pay this note even if someone else has also agreed to pay
it (by, for example, signing this form or a separate guarantee or endorsement).
You may sue me alone, or anyone else who is obligated on this note, or any
number of us together, to collect this note. You may without notice release any
party to this agreement without releasing any other party. If you give up any of
your rights, with or without notice, it will not affect my duty to pay this
note. Any extension of new credit to any of us, or renewal of this note by all
or less than all of us will not release me from my duty to pay it. (Of course,
you are entitled to only one payment in full.) I agree that you may at your
option extend this note or the debt represented by this note, or any portion of
the note or debt, from time to time without limit or notice and for any term
without affecting my liability for payment of the note. I will not assign my
obligation under this agreement without your prior written approval. CREDIT
INFORMATION - I agree and authorize you to obtain credit information about me
from time to time (for example, by requesting a credit report) and to report to
others your credit experience with me (such as a credit reporting agency). I
agree to provide you, upon request, any financial statement or information you
may deem necessary. I warrant that the financial statements and information I
provide to you are or will be accurate, correct and complete.
SIGNATURES: I AGREE TO THE TERMS OF THIS NOTE (INCLUDING THOSE ON PAGES 1, 2,
AND 3). I have received a copy on today's date.
CAUTION - IT IS IMPORTANT THAT YOU THOROUGHLY READ THE CONTRACT BEFORE YOU
SIGN IT.
DIGITAL FUSION, INC. DIGITAL FUSION SOLUTIONS, INC.
BY: /s/ Gary S. Ryan BY: /s/ Roy E. Crippen, III
--------------------------- ----------------------------
GARY S. RYAN PRESIDENT ROY E. CRIPPEN, III PRESIDENT
BY: /s/ Roy E. Crippen, III
----------------------------
ROY E. CRIPPEN, III CEO SIGNATURE FOR LENDER
------------------------------
- --------------------------------------------------------------------------------
DEBTOR NAME AND ADDRESS SECURED PARTY NAME AND ADDRESS
SUMMIT RESEARCH CORPORATION FIRST COMMERCIAL BANK
OF HUNTSVILLE 3 01
WASHINGTON STREET
4940 CORPORATE DR NW SUITE A HUNTSVILLE, AL 358 01
HUNTSVILLE, AL 35805-6226
Taxpayer I.D. # 63-1285794
Type: [ ] individual [ ] partnership |X| corporation [ ]____________
State of organization/registration (if applicable) Alabama
[ ] If checked, refer to addendum for additional debtors and signatures.
- --------------------------------------------------------------------------------
COMMERCIAL SECURITY AGREEMENT
The date of this Commercial Security Agreement (Agreement) is March 10, 2005 .
SECURED DEBTS. This Agreement will secure all sums advanced by Secured Party
under the terms of this Agreement and the payment and
performance of the following described Secured Debts that (check one)
[ ] Debtor |X| DIGITAL FUSION, INC AND DIGITAL FUSION SOLUTIONS, INC.
(Borrower) owes to Secured Party:
[ ] Specific Debts. The following debts and all extensions, renewals,
refinancings, modifications, and replacements (describe):
[ ] All Debts. All present and future debts, even if this Agreement is not
referenced, the debts are also secured by other collateral, or the future
debt is unrelated to or of a different type than the current debt.
Nothing in this Agreement is a commitment to make future loans or
advances.
SECURITY INTEREST. To secure the payment and performance of the Secured Debts,
Debtor gives Secured Party a security interest in all of the Property
described in this Agreement that Debtor owns or has sufficient rights in
which to transfer an interest, now or in the future, wherever the Property
is or will be located, and all proceeds and products of the Property.
"Property" includes all parts, accessories, repairs, replacements,
improvements, and accessions to the Property; any original evidence of
title or ownership; and all obligations that support the payment or
performance of the Property. "Proceeds" includes anything acquired upon the
sale, lease, license, exchange, or other disposition of the Property; any
rights and claims arising from the Property; and any collections and
distributions on account of the Property. This Agreement remains in effect
until terminated in writing, even if the Secured Debts are paid and Secured
Party is no longer obligated to advance funds to Debtor or Borrower.
PROPERTY DESCRIPTION. The Property is described as follows:
[ ] Inventory: All inventory which Debtor holds for ultimate sale or lease,
or which has been or will be supplied under contracts of service, or
which are raw materials, work in process, or materials used or consumed
in Debtor's business.
[ ] Equipment: All equipment including, but not limited to, all machinery,
vehicles, furniture, fixtures, manufacturing equipment, farm machinery
and equipment, shop equipment, office and recordkeeping equipment, and
parts and tools. All equipment described in a list or schedule which
Debtor gives to Secured Party will also be included in the secured
property, but such a list is not necessary for a valid security interest
in Debtor's equipment.
[ ] Farm Products: All farm products including, but not limited to:
(a) all poultry and livestock and their young, along with their products,
produce and replacements;
(b) all crops, annual or perennial, and all products of the crops;
(c) all feed, seed, fertilizer, medicines, and other supplies used or
produced in Debtor's farming operations; and
(d) all aquatic goods produced in aquacultural operations.
|X| Accounts: All rights Debtor has now and may have in the future to the
payment of money including, but not limited to:
(a) payment for goods and other property sold or leased or for services
rendered, whether or not Debtor has earned such payment by
performance;
(b) rights to payment arising out of all present and future debt
instruments, chattel paper and loans and obligations receivable;
(c) all rights Debtor has under any policy of insurance which is a
right to payment of a monetary obligation for health care goods or
services provided (e.g., health care insurance receivables); and
(d) credit card receivables and license fees.
The above include any supporting obligations, rights and interests
(including all liens and security interests) which Debtor may have by
law or agreement against any account debtor or obligor of Debtor.
[ ] Instruments (including Promissory Notes), Documents, Chattel Paper
(including electronic chattel paper), Letters of Credit Rights, and
Other Rights to Payment: Any rights, and interests, (including all
liens and security interests) which Debtor may have by law or
agreements against any account debtor or obligor of Debtor.
[ ] General Intangibles: All general intangibles including, but not
limited to, payment intangibles, tax refunds, applications for patents,
patents, copyrights, trademarks, trade secrets, good will, trade names,
customer lists, permits and franchises, and the right to use Debtor's
name.
[ ] Deposit Accounts: All rights Debtor has now and may have in the
future to any demand, time, savings, passbook or similar account
maintained at any financial institution.
[ ] Investment Property: All rights Debtor has now and may have in the
future to any certificated or uncertificated security, security
entitlement, securities account, commodity contract, commodity account
or financial asset.
[ ] Software: All rights Debtor has and may have in the future to any
computer program and supporting information provided in connection
with the program.
[ ] Commercial Tort Claims: All rights Debtor has now and may have in the
future arising out of that certain tort claim more particularly
described as follows (Provide description of tort claim)________________
[ ] Government Payments and Programs: All payments, accounts, general
intangibles, or other benefits (including, but not limited to, payments
in kind, deficiency payments, letters of entitlement, warehouse receipts,
storage payments, emergency assistance payments, diversion payments, and
conservation reserve payments) in which Debtor now has and in the future
may have any rights or interests and which arise under or as a result of
any preexisting, current or future federal or state governmental program
(including, but not limited to, all programs administered by the
Commodity Credit Corporation and ASCS).
[ ] The Property includes, but is not limited by, the following:
ALL INVOICES, ACCOUNTS RECEIVABLE, ACCOUNTS, CONTRACT RIGHTS, DOCUMENTS
THEREBY AND ALL PROCEEDS THEREOF OF THE DEBTOR'S BUSINESS WHETHER NOW
OR HEREAFTER EXISTING OR ACQUIRED.
If this agreement covers timber to be cut, minerals (including oil and gas),
fixtures or crops growing or to be grown, the legal description is:
USE OF PROPERTY. The Property will be used for [ ] personal [ ] business
[ ] agricultural [ ] _______________________ purposes.
SIGNATURES, Debtor agrees to the terms on pages 1 and 2 of this
Agreement and acknowledges receipt of a copy of this Agreement.
SUMMIT RESEARCH CORPORATION
DEBTOR SECURED PARTY
By: /s/ Roy E. Crippen, III By: /s/ Andy N. Kattos
------------------------- -----------------------
ROY E. CRIPPEN, III ANDY N KATTORS
Title: PRESIDENT Title: SR. VICE PRESIDENT
--------------------- --------------------
GENERAL PROVISIONS. Each Debtor's obligations under this Agreement are
independent of the obligations of any other Debtor. Secured Party may sue each
Debtor individually or together with any other Debtor. Secured Party may release
any part of the Property and Debtor will remain obligated under this Agreement.
The duties and benefits of this Agreement will bind the successors and assigns
of Debtor and Secured Party. No modification of this Agreement is effective
unless made in writing and signed by Debtor and Secured Party. Whenever used,
the plural includes the singular and the singular includes the plural. Time is
of the essence.
APPLICABLE LAW. This Agreement is governed by the laws of the state in
which Secured Party is located. In the event of a dispute, the exclusive forum,
venue, and place of jurisdiction will be the state in which Secured Party is
located, unless otherwise required by law. If any provision of this Agreement is
unenforceable by law, the unenforceable provision will be severed and the
remaining provisions will still be enforceable.
NAME AND LOCATION. Debtor's name indicated on page 1 is Debtor's exact
legal name. If Debtor is an individual, Debtor's address is Debtor's principal
residence. If Debtor is not an individual, Debtor's address is the location of
Debtor's chief executive offices or sole place of business. If Debtor is an
entity organized and registered under state law, Debtor has provided Debtor's
state of registration on page 1. Debtor will provide verification of
registration and location upon Secured Party's request. Debtor will provide
Secured Party with at least 30 days notice prior to any change in Debtor's name,
address, or state of organization or registration.
WARRANTIES AND REPRESENTATIONS. Debtor has the right, authority, and
power to enter into this Agreement. The execution and delivery of this Agreement
will not violate any agreement governing Debtor or Debtor's property, or to
which Debtor is a party. Debtor makes the following warranties and
representations which continue as long as this Agreement is in effect:
(1) Debtor is duly organized and validly existing in all jurisdictions in which
Debtor does business;
(2) the execution and performance of the terms of this Agreement have been duly
authorized, have received all necessary governmental approval, and will not
violate any provision of law or order;
(3) other than previously disclosed to Secured Party, Debtor has not changed
Debtor's name or principal place of business within the last 10 years and
has not used any other trade or fictitious name; and
(4) Debtor does not and will not use any other name without Secured Party's
prior written consent.
Debtor owns all of the Property, and Secured Party's claim to die
Property is ahead of the claims of any other creditor, except as otherwise
agreed and disclosed to Secured Party prior to any advance on the Secured Debts.
The Property has not been used for any purpose that would violate any laws or
subject the Property to forfeiture or seizure.
DUTIES TOWARD PROPERTY. Debtor will protect the Property and Secured
Party's interest against any competing claim. Except as otherwise agreed. Debtor
will keep the Property in Debtor's possession at the address indicated on page 1
of this Agreement. Debtor will keep the Property in good repair and use the
Property only for purposes specified on page 1. Debtor will not use the Property
in violation of any law and will pay all taxes and assessments levied or
assessed against the Property. Secured Party has the right of reasonable access
to inspect the Property, including the right to require Debtor to assemble and
make the Property available to Secured Party. Debtor will immediately notify
Secured Party of any loss or damage to the Property. Debtor will prepare and
keep books, records, and accounts about the Property and Debtor's business, to
which Debtor will allow Secured Party reasonable access. Debtor will not sell,
offer to sell, license, lease, or otherwise transfer or encumber the Property
without Secured Party's prior written consent. Any disposition of the Property
will violate Secured Party's rights, unless the Property is inventory sold in
the ordinary course of business at fair market value. If the Property includes
chattel paper or instruments, either as original collateral or as proceeds of
the Property, Debtor will record Secured Party's interest on die face of the
chattel paper or instruments. If the Property includes accounts, Debtor will not
settle any account for less than the full value, dispose of the accounts by
assignment, or make any material change in the terms of any account without
Secured Party's prior written consent. Debtor will collect all accounts in the
ordinary course of business, unless otherwise required by Secured Party. Debtor
will keep the proceeds of the accounts, and any goods returned to Debtor, in
trust for Secured Party and will not commingle the proceeds or returned goods
with any of Debtor's other property. Secured Parry has the right to require
Debtor to pay Secured Parry the full price on any returned items. Secured Party
may require account debtors to make payments under the accounts directly to
Secured Party. Debtor will deliver the accounts to Secured Party at Secured
Party's request. Debtor will give Secured Party all statements, reports,
certificates, lists of account debtors (showing names, addresses, and amounts
owing), invoices applicable to each account, and any other data pertaining to
the accounts as Secured Party requests.
If the Property includes farm products, Debtor will provide Secured
Party with a list of the buyers, commission merchants, and selling agents to or
through whom Debtor may sell the farm products. Debtor authorizes Secured Party
to notify any additional parties regarding Secured Party's interest in die
Debtor's farm products, unless prohibited by law. Debtor agrees to plant,
cultivate, and harvest crops in due season. Debtor will not use any loan
proceeds for a purpose that will contribute to excessive erosion of highly
erodible land or to the conversion of wetlands to produce an agricultural
commodity, as explained by federal law. If Debtor pledges the Property to
Secured Party (delivers the Property into the possession or control of Secured
Party or a designated third party), Debtor will, upon receipt, deliver any
proceeds and products of the Property to Secured Party. Debtor will provide
Secured Party with any notices, documents, financial statements, reports, and
other information relating to the Property Debtor receives as the owner of the
Property. PERFECTION OF SECURITY INTEREST. Debtor authorizes Secured Party to
file a financing statement covering the Property. Debtor will comply with,
facilitate, and otherwise assist Secured Party in connection with obtaining
possession or control over the Property for purposes of perfecting Secured
Party's interest under the Uniform Commercial Code.
INSURANCE. Debtor agrees to keep the Property insured against the risks
reasonably associated with the Property until the Property is released from this
Agreement. Debtor will maintain this insurance in the amounts Secured Party
requires. Debtor may choose the insurance company, subject to Secured Party's
approval, which will not be unreasonably withheld. Debtor will have the
insurance provider name Secured Party as loss payee on the insurance policy.
Debtor will give Secured Party and the insurance provider immediate notice of
any loss. Secured Party may apply the insurance proceeds toward the Secured
Debts. Secured Party may require additional security as a condition of
permitting any insurance proceeds to be used to repair or replace the Property.
If Secured Party acquires the Property in damaged condition, Debtor's rights to
any insurance policies and proceeds will pass to Secured Party to the extent of
the Secured Debts. Debtor will immediately notify Secured Party of the
cancellation or termination of insurance. If Debtor fails to keep die Property
insured, or fails to provide Secured Party with proof of insurance, Secured
Party may obtain insurance to protect Secured Party's interest in the Property.
The insurance may include coverages not originally required of Debtor, may be
written by a company other than one Debtor would choose, and may be written at a
higher rate than Debtor could obtain if Debtor purchased the insurance.
AUTHORITY TO PERFORM. Debtor authorizes Secured Party to do anything Secured
Party deems reasonably necessary to protect the Property and Secured Party's
interest in the Property. If Debtor fails to perform any of Debtor's duties
under this Agreement, Secured Party is authorized, without notice to Debtor, to
perform the duties or cause them to be performed. These authorizations include,
but are not limited to, permission to pay for the repair, maintenance, and
preservation of the Property and take any action to realize the value of the
Property. Secured Party's authority to perform for Debtor does not create an
obligation to perform, and Secured Party's failure to perform will not preclude
Secured Party from exercising any other rights under the law or this Agreement.
If Secured Party performs for Debtor, Secured Party will use reasonable care.
Reasonable care will not include any steps necessary to preserve rights against
prior parties or any duty to take action in connection with the management of
the Property. If Secured Party comes into possession of the Property, Secured
Party will preserve and protect the Property to the extent required by law.
Secured Party's duty of care with respect to the Property will be satisfied if
Secured Party exercises reasonable care in the safekeeping of the Property or in
the selection of a third parry in possession of the Property. Secured Party may
enforce the obligations of an account debtor or other person obligated on the
Property. Secured Party may exercise Debtor's rights with respect to the account
debtor's or other person's obligations to make payment or otherwise render
performance to Debtor, and enforce any security interest that secures such
obligations.
PURCHASE MONEY SECURITY INTEREST. If the Property includes items
purchased with the Secured Debts, the Property purchased with the Secured Debts
will remain subject to Secured Party's security interest until the Secured Debts
are paid in full. Payments on any non-purchase money loan also secured by this
Agreement will not be applied to the purchase money loan. Payments on the
purchase money loan will be applied first to the non-purchase money portion of
the loan, if any, and then to the purchase money portion in the order in which
the purchase money Property was acquired. If the purchase money Property was
acquired at the same time, payments will be applied in the order Secured Party
selects. No security interest will be terminated by application of this formula.
DEFAULT. Debtor will be in default if:
(1) Debtor (or Borrower, if not the same) fails to make a payment in full when
due;
(2) Debtor fails to perform any condition or keep any covenant on this or any
debt or agreement Debtor has with Secured Party;
(3) a default occurs under the terms of any instrument or agreement evidencing
or pertaining to the Secured Debts;
(4) anything else happens that either causes Secured Party to reasonably believe
that Secured Party will have difficulty in collecting the Secured Debts or
significantly impairs the value of the Property.
REMEDIES. After Debtor defaults, and after Secured Party gives any
legally required notice and opportunity to cure the default, Secured Party may
at Secured Party's option do any one or more of the following:
(1) make all or any part of the Secured Debts immediately due and accrue
interest at the highest post-maturity interest rate;
(2) require Debtor to gamer the Property and make it available to Secured Party
in a reasonable fashion;
(3) enter upon Debtor's premises and take possession of all or any part of
Debtor's property for purposes of preserving the Property or its value and
use and operate Debtor's property to protect Secured Party's interest, all
without payment or compensation to Debtor;
(4) use any remedy allowed by state or federal law, or provided in any
agreement evidencing or pertaining to the Secured Debts.
If Secured Party repossesses the Property or enforces the obligations
of an account debtor, Secured Party may keep or dispose of the Property as
provided by law. Secured Party will apply the proceeds of any collection or
disposition first to Secured Party's expenses of enforcement, which includes
reasonable attorneys' fees and legal expenses to the extent not prohibited by
law, and men to the Secured Debts. Debtor (or Borrower, if not the same) will be
liable for the deficiency, if any. By choosing any one or more of these
remedies, Secured Party does not give up the right to use any other remedy.
Secured Party does not waive a default by not using a remedy.
WAIVER. Debtor waives all claims for damages caused by Secured Party's
acts or omissions where Secured Party acts in good faith.
NOTICE AND ADDITIONAL DOCUMENTS. Where notice is required, Debtor
agrees that 10 days prior written notice will be reasonable notice to Debtor
under the Uniform Commercial Code. Notice to one party is notice to all parties.
Debtor agrees to sign, deliver, and file any additional documents and
certifications Secured Party considers necessary to perfect, continue, or
preserve Debtor's obligations under this Agreement and to confirm Secured
Party's hen status on the Property.