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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Professional Transportation Group Ltd., Inc.
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(Name of Issuer)
Common Stock, no par value
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(Title of Class of Securities)
742963-10-1
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(CUSIP NUMBER)
W. Anthony Huff
Judson B. Wagenseller
10602 Timberwood Circle, Suite #9
Louisville, KY 40223
(502) 339-4000
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
January 11, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e)m 240,13d-1(f) or 240.13d-1(g), check the
following box. __
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CUSIP NO. 742963-10-1
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1. Name of Reporting Person
S.S. or I.R.S. Identification Logistics Management, L.L.C.
No. of Above Person
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2. Check the Appropriate Box (a) [x]
If a member of a Group (b)
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3. SEC Use Only
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4. Source of Funds Other OF
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5. Check if Disclosure of
Legal Proceedings Is
Required Pursuant to Not Applicable
Items 2(d) or 2(e)
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6. Citizenship or Place
Of Organization Kentucky
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Number of 7. Sole Voting 2,500,000 shares of
Shares Beneficiary Power Common Stock, no
Owned by Each par value
Reporting Person -----------------------------------------
8. Shared Voting
Power -0-
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9. Sole Dispositive 2,500,000 shares of
Power Common Stock
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10. Shared Dispositive
Power -0-
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11. Aggregate Amount Beneficially 2,500,000 shares of Common
Owned by Each Reporting Person Stock
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12. Check if the Aggregate Amount in Row (11)
Excludes Certain Shares ___
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13. Percent of Class Represented by 55.8%
Amount in Row (11)
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14. Type of Reporting
Person P.N.
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Schedule 13D
Introduction
This Amendment amends Items No. 3, 4, 6 and 7 of the Schedule 13D filed
on December 16, 1999 (the "Original Filing") to reflect the receipt of
additional borrowed funds to effect the reported purchase, amendment of the
terms of loans made in connection with the transaction, a change in purpose with
respect to the Reporting Person's ownership of the Shares, and the inclusion of
exhibits not included in the Original Filing and additional exhibits with
respect to this filing. Terms not defined herein have the meanings set forth in
the Original Filing.
Item 3. Source and Amount of Funds or Other Consideration.
The second paragraph of Item 3 is amended as follows:
Other consideration includes the payment to Mr. Bakal of an amount of shares of
U.S. Trucking, Inc. common stock equal to the amounts Mr. Bakal becomes
obligated to pay in respect of state and federal income taxes collected on the
proceeds of his sale of the Shares, subject to a limit of $600,000. The
effective purchase price includes $500,000 loaned by the Reporting Person to Mr.
Bakal, which loan has been forgiven in connection with restructuring the LM
Note.
The third and fourth paragraphs of Item 3 are supplemented as follows:
The Reporting Person has determined not to repay the LM Note with the Shares.
The LM Note has been replaced with a new note (the "New Note") which provides
for a $1.0 million payment on or before January 10, 2000 (which payment has been
made) (the "January Payment"), payment of an additional $500,000 on April 15,
2000 and equal payments on the fifteenth day of each month thereafter sufficient
to pay off the entire principal and interest at January 15, 2002. The New Note
bears interest at 9.65 percent per annum. The source of funds for the January
Payment was an additional $571,126 in borrowings from Zanett Lombardier Master
Fund, L.P. ("Zanett"), of which $500,000 was used in partial payment of the
January Payment, and $500,000 of working capital of the Reporting Person.
The Zanett Loan has been revised to increase the loan amount to $1,146,460.78
(which includes interest accrued on the Zanett Loan) (the "New Zanett Loan").
Approximately one-half the principal amount is due on February 1, 2000, with the
balance of the principal and accrued interest due on March 6, 2000. The New
Zanett Loan bears interest at 12% per annum.
Item 4. Purpose of Transaction.
Item 4 is amended as follows:
The Reporting Person has determined to explore combining the business operations
of PTG with those of U.S. Trucking, Inc., a Colorado corporation engaged in the
trucking and freight brokerage business, of which the Reporting Person is a
majority shareholder. The Reporting Person currently intends that such a
combination would likely be effected through a merger of the two publicly traded
parent companies, with the consideration to the non-surviving company
shareholders being stock of the surviving company. It is undecided which company
would be the
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surviving corporation in any such combination. No firm plan with respect to such
a combination has been developed and no proposal has been made to the Board of
Directors of either company with respect to such a combination. Any such plan
and subsequent proposal will be subject to the Reporting Person completing a due
diligence investigation of PTG and an analysis of numerous considerations
involved in any such combination, including without limitation operational, tax,
accounting and market considerations.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Item 6 is supplemented as follows:
Under the terms of the New Zanett Loan Zanett has the option of receiving in
repayment of the indebtedness cash, shares of U.S. Trucking, Inc. common stock
(at a rate of one share for each $2.37 loan amount paid in such shares) or PTG
common stock (at a rate of one share for each approximately $.92 loan amount
paid in such shares, subject to certain adjustments) held by the Reporting
Person.
Item 7. Material to be Filed as Exhibits.
Item 7 is amended to include the following exhibits, the first four of
which were referenced but not included in the Original Filing.:
1. Securities Purchase Agreement
2. $500,000 Promissory Note between Logistics Management
LLC and Dennis Bakal
3. Pledge Agreement Between Dennis Bakal and Logistics
Management LLC
4. $570,126 Promissory Note between Logistics Management LLC and
Zanett Lombardier Master Fund LP
5. $3,000,000 Promissory Note between Logistics Management
LC and Dennis Bakal
6. $1,146,460.78 Amended and Restated Promissory Note between
Logistics Management, LC and Zanett Lombardier Master Fund LP
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Logistics Management LLC
Date: January 11, 2000 By: /s/ Anthony Huff
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Anthony Huff, Manager
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER AND TITLE PAGE NO.
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<S> <C> <C>
1. Securities Purchase Agreement
2. $500,000 Promissory Note between Logistics Management
LLC and Dennis Bakal
3. Pledge Agreement Between Dennis Bakal and Logistics
Management LLC
4. $570,126 Promissory Note between Logistics Management LLC and
Zanett Lombardier Master Fund LP
5. $3,000,000 Promissory Note between Logistics Management
LC and Dennis Bakal
6. $1,146,460.78 Amended and Restated Promissory Note between
Logistics Management, LC and Zanett Lombardier Master Fund LP
</TABLE>
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EXHIBIT 1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as of December
3, 1999, between LOGISTICS MANAGEMENT, LLC, a limited liability company
organized under the laws of the State of Kentucky (the "PURCHASER"),
PROFESSIONAL TRANSPORTATION GROUP LTD., INC. (the "CORPORATION") and DENNIS
BAKAL, an individual who is the Chief Executive Officer of the Corporation (the
"SELLER").
A. The Seller desires to sell, and the Purchaser desires to
purchase, upon the terms and conditions stated in this Agreement, 2,500,000
shares of the Seller's Common Stock ("Common Stock Shares") and all of his
options and warrants to purchase securities of the Corporation (collectively,
the "SHARES").
B. The Purchaser desires to lend to Seller and Seller desires to
borrow from Purchaser the sum of $500,000 pursuant to a promissory note in the
form attached as Exhibit A hereto (the "Seller Note").
C. Seller shall use the proceeds from the Note to make a capital
contribution (the "Capital Contribution") to the Corporation.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is acknowledged the Corporation and the Purchaser hereby agree as follows:
1. PURCHASE AND SALE OF SHARES; ISSUANCE OF SELLER NOTE.
(a) Purchase of Shares and Closing. On the date of the Closing,
the Purchaser shall purchase from the Seller and the Seller shall sell to
Purchaser the Shares for an aggregate purchase price of $3,000,000 (the
"Purchase Price"). The Purchase Price shall be paid by the execution and
delivery of a Promissory Note in the form attached as Exhibit B hereto and
cancellation of the Seller Note in accordance with the terms thereof. In
addition to the Purchase Price, the Purchaser shall deliver to the Seller shares
of U.S. Trucking, Inc. in a dollar amount equivalent to any federal or state
income taxes actually incurred by the Seller with respect to collections on the
Promissory Note, but not to exceed $600,000. Such additional consideration shall
be delivered to the Seller within 30 days from the date the Seller furnishes the
Purchaser with a true and complete copy of his tax return(s) reflecting such
taxes.
(b) Closing Date. The Seller shall deliver to Purchaser physical
certificates representing the Shares. Seller shall deliver to Purchaser
certificates or agreements, duly endorsed or otherwise with enforceable
instruments of transfer, for all options and warrants which constitute Shares.
(c) Seller Note. On the date hereof Purchaser shall lend to Seller
and Seller shall borrow from Purchaser the sum of $500,000 pursuant to the
Seller Note.
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2. PURCHASERS' REPRESENTATIONS AND WARRANTIES
The Purchaser represents and warrants to the Seller and the Corporation
as follows:
(a) Authorization; Enforcement. This Agreement has been duly
authorized and has been validly authorized, executed and delivered on behalf of
Purchaser and is a valid and binding agreement of Purchaser enforceable against
Purchaser in accordance with its terms.
(b) Residency. Purchaser is a resident of the jurisdiction set
forth under Purchaser's name on the Execution Page hereto executed by Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION.
The Corporation represents and warrants to Purchaser as follows:
(a) Organization and Qualification. The Corporation and each of
its subsidiaries is a corporation duly organized and existing in good standing
under the laws of the jurisdiction in which it is incorporated, and has the
requisite corporate power to own its properties and to carry on its business as
now being conducted. The Corporation and each of its subsidiaries is duly
qualified as a foreign corporation to do business and is in good standing in
every jurisdiction in which its ownership of property or the nature of the
business conducted by it makes such qualification necessary and where the
failure so to qualify would have a Material Adverse Effect. "MATERIAL ADVERSE
EFFECT" means any material adverse effect on (i) the Shares, (ii) the ability of
the Corporation to perform its obligations hereunder or (iii) the business,
operations, properties, prospects or financial condition of the Corporation and
its subsidiaries, taken as a whole.
(b) Stockholder Authorization. Neither the execution, delivery or
performance of this Agreement, nor the consummation by it of the transactions
contemplated hereby or thereby requires any consent, approval or authorization
of the Corporation's stockholders.
(c) No Conflicts. The execution, delivery and performance of this
Agreement, and the consummation by the Corporation of the transactions
contemplated hereby and thereby will not (i) result in a violation of the
Articles of Incorporation or By-laws or (ii) conflict with, or constitute a
default (or an event which, with notice or lapse of time or both, would become a
default) under, or give to others any rights of termination, amendment
(including, without limitation, the triggering of any anti-dilution provisions),
acceleration or cancellation of, any agreement, indenture or instrument to which
the Corporation or any of its subsidiaries is a party, or result in a violation
of any law, rule, regulation, order, judgment or decree (including federal and
state securities laws and regulations and rules or regulations of any
self-regulatory organizations to which either the Corporation or its Shares are
subject) applicable to the Corporation or any of its subsidiaries or by which
any property or asset of the Corporation or any of its subsidiaries is bound or
affected (except, with respect to clause (ii),
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for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations that would not, individually or in the aggregate,
have a Material Adverse Effect).
(d) SEC Documents, Financial Statements. Since December 31, 1998,
the Corporation has timely filed (within applicable extension periods) all
reports, schedules, forms, statements and other documents required to be filed
by it with the SEC pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") (all of the foregoing and
all exhibits included therein and financial statements and schedules thereto and
documents incorporated by reference therein being hereinafter referred to herein
as the "SEC DOCUMENTS"). The Corporation has delivered to the Purchaser true and
complete copies of the SEC Documents. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Exchange Act, and the rules and regulations of the United Securities Exchange
Commission (the "SEC") promulgated thereunder applicable to the SEC Documents,
and none of the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. None of the statements made in any such SEC Documents is, or has
been, required to be amended or updated under applicable law (except for such
statements as have been amended or updated in subsequent filings made prior to
the date hereof). As of their respective dates, the financial statements of the
Corporation included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC applicable with respect thereto. Such financial
statements have been prepared in accordance with U.S. generally accepted
accounting principles ("GAAP"), consistently applied, during the periods
involved (except (i) as may be otherwise indicated in such financial statements
or the notes thereto, or (ii) in the case of unaudited interim statements, to
the extent they may not include footnotes or may be condensed or summary
statements), and fairly present in all material respects the consolidated
financial position of the Corporation and its consolidated subsidiaries as of
the dates thereof and the consolidated results of their operations and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to immaterial year-end audit adjustments). Except as set forth in the financial
statements of the Corporation included in the SEC Documents filed prior to the
date hereof, the Corporation has no liabilities, contingent or otherwise, other
than (i) liabilities incurred in the ordinary course of business subsequent to
the date of such financial statements, (ii) liabilities not required by GAAP to
be disclosed on a balance sheet prepared in accordance with GAAP, and (iii)
obligations under contracts and commitments incurred in the ordinary course of
business and not required under GAAP to be reflected in such financial
statements, which liabilities and obligations referred to in clauses (i), (ii)
and (iii), individually or in the aggregate, are not material to the financial
condition or operating results of the Corporation. Neither the Corporation nor
any of its subsidiaries or any of their officers, directors, employees or agents
have provided the Purchaser with any material, nonpublic information.
(e) Absence of Certain Changes. Since December 31, 1998, there has
been no material adverse change and no material adverse development in the
business, properties, operations, financial condition or results of operations
of the Corporation and its subsidiaries, taken as a whole.
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(f) Disclosure. All information relating to or concerning the
Corporation set forth in this Agreement or provided to the Purchaser in
connection with the transactions contemplated hereby is true and correct in all
material respects and the Corporation has not omitted to state any material fact
necessary in order to make the statements made herein or therein, in light of
the circumstances under which they were made, not misleading. No event or
circumstance has occurred or exists with respect to the Corporation or its
subsidiaries or their respective businesses, properties, operations or financial
conditions, which has not been publicly disclosed but, under applicable law,
rule or regulation, would be required to be disclosed by the Corporation in a
registration statement filed on the date hereof by the Corporation under the
Securities Act of 1933 with respect to the primary issuance of the Corporation's
Shares.
(g) No Brokers. Except for a fee of $90,000 payable to Dominick
and Dominick, LLC, the Corporation has taken no action which would give rise to
any claim by any person for brokerage commissions, finder's fees or similar
payments by the Purchaser relating to this Agreement or the transactions
contemplated hereby.
3A. Representations and Warranties of the Seller.
The Seller represents and warrants to Purchaser as follows:
(a) Ownership of Shares. The Seller represents and warrants that
the Common Stock Shares constitute at least 55.8% of the issued and outstanding
common stock of the Corporation. The Seller further represents that he owns the
Shares free and clear of all liens, claims and encumbrances of any kind and
nature, has full power and authority to enter into this Agreement and consummate
the transactions contemplated hereby, that, upon transfer of the Shares by
Seller to Purchaser, Purchaser shall have good, valid and marketable title in
and to the Shares, and that the transfer of the Shares by Seller to Purchaser
will not violate any law, rule, regulation, contract, agreement, indenture or
instrument applicable to the Seller or by which the Seller is bound. The Seller
represents and warrants that the Shares have been held by Seller for more than 2
years.
4. COVENANTS.
(a) Reporting Status. So long as the Purchaser beneficially owns
any of the Shares, the Corporation shall timely file all reports required to be
filed with the SEC pursuant to the Exchange Act, and the Corporation shall not
terminate its status as an issuer required to file reports under the Exchange
Act even if the Exchange Act or the rules and regulations thereunder would
permit such termination.
(b) Use of Proceeds. The proceeds from the Capital Contribution
shall be used by the Corporation for working capital.
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(c) Expenses. Except as otherwise provided herein, each party
hereto shall be responsible for its own expenses incurred in connection with the
negotiation, preparation, execution, delivery and performance of this Agreement
and the other agreements to be executed in connection herewith.
(d) Board Rights. The Corporation and Seller agree to take all
action necessary, if a Demand (as defined in Section 3 of the Note) is made by
Purchasers, to nominate and elect to the Board of Directors of the Corporation,
nominees selected by the Purchaser which nominees shall constitute not less than
a majority of the number of directors on the Board of Directors of the
Corporation immediately following such action. The action taken by the
Corporation and the Seller may include, but is not limited to, calling a special
meeting of the Corporation's shareholders to nominate and elect the directors
selected by the Purchaser. In connection with such action Seller shall vote any
shares of Common Stock owned or controlled by Seller in favor of the nominees
appointed by Purchaser. Such action will occur not later than two days after a
Demand is made provided that the Note has not been satisfied prior to such date.
5. TRANSFER AGENT INSTRUCTIONS.
(a) The Corporation shall instruct its transfer agent to issue
certificates, registered in the name of the Purchaser or its nominee, for the
Shares in such amounts as specified from time to time by such Purchaser.
(b) If the Purchaser provides the Corporation and the transfer
agent with an opinion of counsel, which opinion of counsel shall be in form,
substance and scope customary for opinions of counsel in comparable
transactions, to the effect that the Shares to be sold or transferred may be
sold or transferred pursuant to an exemption from registration, or the Purchaser
provides the Corporation with reasonable assurances that such Shares may be sold
under Rule 144(k), the Corporation shall permit the transfer of the Shares and
instruct its transfer agent to issue one or more certificates in such name and
in such denominations as specified by the Purchaser.
6. GOVERNING LAW; MISCELLANEOUS.
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(a) Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
regard to principles of choice of law or conflicts of laws that would defer to
the substantive law of another jurisdiction. The Corporation irrevocably
consents to the jurisdiction of the United States federal courts and the state
courts located in the State of New York in any suit or proceeding based on or
arising under this Agreement and irrevocably agrees that any and all claims
arising out of this Agreement or related to the transactions contemplated by
this Agreement shall be determined exclusively in such courts. The Corporation
irrevocably waives the defense of an inconvenient forum to the maintenance of
such suit or proceeding. The Corporation further agrees that service of process
mailed by first class mail shall be deemed in every respect effective service of
process in any such suit or proceeding. Nothing herein shall affect the right of
the Purchaser to serve process in any other manner permitted by law. The
Corporation agrees that a final non-appealable judgment in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner.
(b) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
(c) Headings. The headings of this Agreement are for convenience
of reference and shall not form part of, or affect the interpretation of, this
Agreement.
(d) Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction chosen by the Purchaser.
(e) Entire Agreement; Amendments. This Agreement and the
instruments referenced herein contain the entire understanding of the Purchaser,
the Corporation, their affiliates and persons acting on their behalf with
respect to the matters covered herein and therein and, except as specifically
set forth herein or therein, neither the Corporation nor the Purchaser makes any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived other than by an instrument in
writing signed by the party to be charged with enforcement. Amended by the
parties whose rights are affected herein.
(f) Notices. Any notices required or permitted to be given under
the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier or by confirmed
facsimile, and shall be effective upon receipt or refusal of receipt, if
delivered personally or by courier or confirmed facsimile, in each case
addressed to a party. The address for such communications shall be:
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LOGISTICS MANAGEMENT, LLC PROFESSIONAL TRANSPORTATION
10602 Timberwood Circle, Suite 9 GROUP LTD., INC.
Louisville, KY 1950 Spectrum Circle, Suite B-100
Telecopy: (502) 412-8980 Marietta, GA. 30067
Attn: Anthony Huff Attn: Dennis Bakal
Each party shall provide notice to the other parties of any change in
address.
(g) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns. Except
as provided herein or therein, the Corporation shall not assign this Agreement.
(h) Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
(i) Survival. The representations, warranties, agreements and
covenants of the Corporation set forth in Sections 3, 4, 5 and 6 hereof shall
survive the Closing notwithstanding any investigation conducted by or on behalf
of any Purchaser until the date on which Purchaser no longer own any Shares.
None of the representations and warranties made by the Corporation herein shall
act as a waiver of any rights or remedies a Purchaser may have under applicable
federal or state Securities laws. The Corporation shall indemnify and hold
harmless each Purchaser and each of such Purchaser's officers, directors,
employees, partners, members, agents and affiliates for all losses or damages
arising as a result of or related to any breach or alleged breach by the
Corporation of any of its representations or covenants set forth herein,
including advancement of reasonable expenses as they are incurred.
(j) Publicity. The Corporation and the Purchaser shall have the
right to review before issuance any press releases, SEC or NASDAQ filings, or
any other public statements with respect to the transactions contemplated
hereby; provided, however, that the Corporation shall be entitled, without the
prior review of the Purchaser, to make any press release or SEC or NASDAQ
filings with respect to such transactions as is required by applicable law and
regulations (although the Purchaser shall be consulted by the Corporation in
connection with any such press release and filing prior to its release and shall
be provided with a copy thereof).
(k) Further Assurances. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(l) Joint Participation in Drafting. Each party to this Agreement
has participated in the negotiation and drafting of this Agreement. As such, the
language used herein and therein shall be
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deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party to
this Agreement.
(m) Equitable Relief. The Corporation acknowledges that a breach
by it of its obligations hereunder will cause irreparable harm to the Purchaser
by vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, the Corporation acknowledges that the remedy at law for a breach of
its obligations hereunder (including, but not limited to, its obligations
pursuant to Section 5 hereof) will be inadequate and agrees, in the event of a
breach or threatened breach by the Corporation of the provisions of this
Agreement (including, but not limited to, its obligations pursuant to Section 5
hereof), that the Purchaser shall be entitled, in addition to all other
available remedies, to an injunction restraining any breach and requiring
immediate issuance and transfer of the Shares, without the necessity of showing
economic loss and without any bond or other security being required.
7. AGREEMENT CONTINGENT.
This Agreement and the undertakings contemplated herein are expressly
conditioned upon its approval by SouthTrust Bank, N.A.
8. INDEMNIFICATION OF SELLER'S GUARANTIES.
Purchaser agrees that in the event it consummates the purchase of
Seller's Shares as contemplated herein, it shall use its reasonable best efforts
to cause Seller to be removed from any and all liability he may have as
guarantor for obligations of the Corporation or its subsidiaries. Furthermore,
Purchaser agrees on behalf of itself, its predecessors in interest, successors
and assigns to indemnify, reimburse, compensate, defend and hold the Seller
harmless from and against any and all demands, claims, actions or causes of
action, assessments, liabilities, losses, damages, costs and expenses
(including, without limitation, interest, penalties and reasonable attorneys'
fees, disbursements and expenses) which are asserted against the Seller in
connection with any of such guaranties.
9. NO MATERIAL ADVERSE CHANGE.
During the 31-day period beginning with the date of execution of this
Agreement (or such other period upon which the parties mutually agree in
writing) there shall occur no material adverse change in the financial condition
or the operation of the Corporation (or any of its affiliates) which adversely
affects the conduct of the Corporation's business (and the business of its
affiliates) as currently conducted, specifically including, without limitation:
changes in personnel except in the ordinary course of business, the relocation
of the Corporation's offices or personnel or substantial changes in the assets
of the Corporation, without the prior written consent of the Seller.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first above written.
PROFESSIONAL TRANSPORTATION LOGISTICS MANAGEMENT, LLC
GROUP LTD., INC.
By: /s/ Dennis A. Bakal By: /s/ Danny L. Pixler
-------------------------- ------------------------
Name: Name: Danny L. Pixler
Title: Title: Manager
DENNIS BAKAL
/s/ Dennis A. Bakal
- ------------------------------------------
ADDRESS: c/o PROFESSIONAL TRANSPORTATION
GROUP LTD., INC.
1950 Spectrum Circle, Suite B-100
Marietta, GA. 30067
Attn: Dennis Bakal
<PAGE> 1
EXHIBIT 2
PROMISSORY NOTE
$500,000.00 DECEMBER 3, 1999
FOR VALUE RECEIVED AND INTENDING TO BE LEGALLY BOUND HEREBY, Dennis
Bakal ("BORROWER"), promises to pay to the order of Logistics Management, LLC, a
Kentucky limited liability company ("LENDER"), the principal sum of Five Hundred
Thousand ($500,000.00) Dollars, together with interest as set forth below, until
the date on which the principal amount is paid in full, payable in lawful money
of the United States of America in accordance with the terms of this Promissory
Note (this "NOTE").
1. USE OF PROCEEDS. Borrower shall use the proceeds of the loan
evidenced hereby solely for the purposes of making a capital
contribution to Professional Transportation Group Ltd., Inc.
("PTG") in the amount of Five Hundred Thousand ($500,000.00)
Dollars.
2. INTEREST.
1. During the period beginning on the date hereof and
ending on the Maturity Date (as hereinafter defined),
in the absence of an Event of Default (as defined
below), interest shall accrue daily on the
outstanding principal amount hereunder at nine and
five-eighths (9-5/8%) percent per annum.
2. Upon and after the occurrence of an Event of Default,
the unpaid principal balance hereunder shall accrue
interest at eighteen (18%) percent per annum;
3. Interest shall be calculated hereunder for the actual
number of days that the principal is outstanding,
based on a three hundred sixty (360) day year.
Interest shall continue to accrue on the principal
balance hereof at the then-applicable rate of
interest specified in this Note, notwithstanding any
demand for payment, acceleration and/or the entry of
any judgment against Borrower, until all principal
owing hereunder is paid in full.
4. If at any time, the rate of interest applicable
hereunder shall be finally determined by any court of
competent jurisdiction, governmental agency or
tribunal to exceed the maximum rate of interest
permitted by any applicable law, then for such time
as such rate would be deemed excessive, application
thereof shall be suspended and there shall be charged
in lieu thereof the maximum rate of interest
permissible under such law.
3. PAYMENT; PREPAYMENTS. All principal, accrued and unpaid
interest and other charges due and owing in connection with
this Note shall be due and payable on the ninetieth (90th) day
after the date upon which Lender makes a written demand (a
"Demand") to Borrower demanding payment hereon (the "MATURITY
DATE"). Lender and Borrower hereby agree that this Note shall
be canceled and of no further effect if pursuant to that
certain Promissory Note of Lender to Borrower in the principal
amount of $3,000,000 (the "LM Note") the obligations of Lender
under the LM Note
<PAGE> 2
are satisfied by the payment of cash and not by delivery of
shares of Common Stock of PTG. This Note may be prepaid in
whole or in party at any time and from time to time without
payment of a penalty or premium provided that each such
prepayment is accompanied by a payment of interest on the
amount of such prepayment calculated at the applicable
interest rate to the date of such prepayment.
4. SECURITY. The obligations under this Note are secured by
certain collateral as provided for in that certain Security
Pledge Agreement dated as of the date hereof.
5. EVENTS OF DEFAULT. Each of the following shall constitute an
"Event of Default" hereunder:
a. Borrower fails to make, in full, any payment of
interest or principal when due;
b. The breach by Borrower of any covenant contained
herein or the discovery by Lender of any false or
misleading representation made by Borrower in any
information submitted to Lender by Borrower;
c. Borrower or PTG makes an assignment for the benefit
of its creditors, becomes insolvent, or files or has
filed against it any petition, action, case or
proceeding, voluntary or involuntary, under any state
or federal law regarding Bankruptcy, insolvency,
reorganization, receivership or dissolution,
including the United States Bankruptcy Code;
d. The dissolution of PTG;
e. A writ or warrant of attachment, garnishment,
execution, distraint or similar process shall have
been issued against Borrower or PTG or any of
Borrower's or PTG's properties which shall have
remained undischarged and unstayed for a period of
thirty (30) consecutive days; or
f. A material adverse change in the business, operations
or condition, financial or otherwise, of PTG shall
have occurred.
6. LENDER'S RIGHTS UPON DEFAULT. Upon the occurrence of any Event
of Default and without the necessity of giving any prior
written notice to Borrower, Lender may (a) accelerate the
maturity of this Note and all amounts payable hereunder and
demand immediate payment thereof and (b) exercise all of
Lender's rights and remedies under this Note or any other
document, instrument or agreement executed in connection
therewith or available at law.
7. APPLICATION OF FUNDS. All sums realized by Lender on account
of this Note, from whatever source received, shall be applied
first to any fees, costs and expenses (including attorney's
fees) incurred by Lender, second to accrued and unpaid
interest, and then to principal.
2
<PAGE> 3
8. ATTORNEY'S FEES AND COSTS. In the event that Lender engages an
attorney to represent it in connection with (a) any alleged
default by Borrower under this Note, (b) any potential and/or
actual bankruptcy or other insolvency proceedings commenced by
or against Borrower and/or (c) any potential and/or actual
litigation arising out of or related to any of the foregoing,
then Borrower shall be liable to and shall reimburse Lender on
demand for all attorneys' fees, costs and expenses incurred by
Lender in connection with any of the foregoing.
9. Waiver of Right to Jury Trial. Borrower hereby knowingly,
voluntarily, and intentionally waives any rights it may have
to a trial by jury in respect of any litigation based hereon
or arising out of, under or in connection with this Note or
any course of conduct, course of dealing, statements (whether
verbal or written) or actions of Lender.
10. GOVERNING LAW. This Note shall be governed by the internal
laws of the State of New York without regard to conflicts of
laws principles.
11. MISCELLANEOUS.
1. Borrower hereby waives protest, notice of protest,
presentment, dishonor, notice of dishonor and demand.
To the extent permitted by law, Borrower hereby
waives and releases all errors, defects and
imperfections in any proceedings instituted by Lender
under the terms of this Note.
2. The rights and privileges of Lender under this Note
shall inure to the benefit of its successors and
assigns. All representations, warranties and
agreements of Borrower made in connection with this
Note shall bind Borrower's successors and assigns.
3. If any provision of this Note shall for any reason be
held to be invalid or unenforceable, such invalidity
or unenforceability shall not affect any other
provision hereof, but this Note shall be construed as
if such invalid or unenforceable provision had never
been contained herein.
4. The waiver of any Event of Default or the failure of
Lender to exercise any right or remedy to which it
may be entitled shall not be deemed to be a waiver of
any subsequent Event of Default or of Lender's or
Lender's right to exercise that or any other right or
remedy to which Lender is entitled.
5. The rights and remedies of Lender under this Note
shall be in addition to any other rights and remedies
available to Lender at law or in equity, all of which
may be exercised singly or concurrently.
6. Lender shall have the right, without the prior
consent of Borrower, to assign to an Affiliate of
Lender all of Lender's rights and obligations
hereunder.
3
<PAGE> 4
IN WITNESS WHEREOF, Borrower has duly executed this Promissory Note the
day and year first above written and has hereunto set hand and seal.
/s/ Dennis Bakal
------------------------------
Dennis Bakal
<PAGE> 1
EXHIBIT 3
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement (the "Agreement") is made this 3rd day of
December, 1999, by Dennis Bakal ("Pledgor" or "Borrower"), in favor of Logistics
Management, LLC("Pledgee").
B A C K G R O U N D
Pledgee has agreed to provide Pledgor a loan in the principal amount of
$500,000 (the "Loan") as evidenced by a promissory note of even date herewith
executed by Borrower in favor of Pledgee (the "Note"). Pledgor's undertakings
set forth herein and in the Note are hereinafter collectively referred to as the
"Obligations."
As collateral security for the Obligations, Pledgor is required to
pledge to Pledgee all of Pledgor's right, title and interest in and to the
Pledged Securities (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing, and intending to be
legally bound hereby, and for good, valuable and sufficient consideration, the
receipt of which is hereby acknowledged, Pledgor agrees as follows:
1. Certain Definitions.
(a) The term "Pledged Securities" shall mean 1,230,769
shares of Professional Transportation Group, Ltd. , Inc.'s (the "Company")
Common Stock.
(b) The term "Event of Default" shall mean a default or
an event of default under this Agreement or any other instrument, document or
agreement, which evidences or secures the Obligations.
2. Pledge.
(a) As security for the prompt satisfaction of the
Obligations, Pledgor hereby agrees to pledge, hypothecate, deliver and set over
to Pledgee on the date the Pledgee makes a Demand payment (as defined in Section
3 of the Note) the Pledged Securities and grants to Pledgee a lien on and
security interest in and to the Pledged Securities.
(b) Prior to the occurrence of an Event of Default (as
defined in the Note), Pledgor shall be entitled to all voting and other rights
with respect to the Pledged Securities. For that purpose, Pledgee shall execute
and deliver to Pledgor all necessary proxies. Immediately and without further
notice, upon the occurrence of an Event of Default, whether or not the Pledged
Securities shall have been registered in the name of Pledgee or its nominee,
Pledgee or its nominee shall have the right to exercise all voting rights as to
all of the Pledged Securities and all other corporate rights and all exchange,
subscription or other rights, privileges or options pertaining thereto as if
Pledgee or its nominee were the absolute owner thereof including, without
limitation, the right to exchange any or all of the Pledged Securities upon the
merger, consolidation, reorganization, recapitalization or other readjustment of
<PAGE> 2
Pledgee thereof, or upon the exercise by Pledgee of any right, privilege, or
option pertaining to any of the Pledged Securities and, in connection therewith,
to deliver any of the Pledged Securities to any committee, depository, transfer
agent, registrar or other designated agency upon such terms and conditions as it
may determine, all without liability except to account for property actually
received by Pledgee; but Pledgee shall have no duty to exercise any of the
aforesaid rights or privileges, or may delay in so doing.
(c) Prior to the occurrence of an Event of Default,
Pledgor shall be entitled to any and all regular interest payments and cash
dividends declared by the Company to be paid on account of the Pledged
Securities; provided, however, that immediately and without further notice, upon
the occurrence of an Event of Default, whether or not the Pledged Securities
shall have been registered in the name of Pledgee or its nominees, Pledgee or
its nominee shall have the right to any and all regular cash dividends paid on
account of the Pledged Securities which shall be delivered to Pledgee and may,
at Pledgee's option, be applied on account of the Obligations in such order and
manner as Pledgee may elect.
(d) At any time following execution of this Agreement, if
Pledgor shall become entitled to receive or shall receive, in connection with
any of the Pledged Securities, any: (i) stock certificate, representing a stock
dividend or in connection with any increase or reduction of capital,
reclassification, merger, consolidation, sale of assets, combination of shares,
stock split, spin-off or split-off; (ii) option, warrant or right, whether as an
addition to or in substitution or in exchange for any of the Pledged Securities,
or otherwise; or (iii) dividends or distributions payable in property, including
securities issued by an issuer other than Pledgee; then, Pledgor shall accept
the same as Pledgee's agent, in express trust for Pledgee, and shall deliver the
same forthwith to the Pledgee in the exact form received with, as applicable,
Pledgor's endorsement, or appropriate stock powers duly executed in blank, (with
signatures "bank guaranteed") which the Pledgor hereby unconditionally agrees to
make and/or furnish, to be held by Pledgee, subject to the terms hereof, as part
of the Pledged Securities.
3. Remedies Upon an Event of Default.
Upon the occurrence of an Event of Default, Pledgee may upon
demand of performance or other demand, advertisement, or notice of any kind to
or upon the Pledgor or any other person (all of which are, to the extent
permitted by law, hereby expressly waived), forthwith realize upon the Pledged
Securities and Pledgor hereby agrees to take all actions necessary to transfer
the certificates representing the Pledged Securities to the name of Pledgee.
4. Pledgor's Representations and Warranties. Pledgor represents
and warrants that:
(a) Pledgor has all requisite capacity and power to enter
into this Pledge, to pledge the Pledged Securities for the purposes described in
Paragraph 2(a) above, and to carry out the transactions contemplated by this
Pledge;
(b) Pledgor will prior to the delivery of the Pledged
Securities pursuant to Section 2 hereof, be the legal and beneficial owner of
the Pledged Securities;
-2-
<PAGE> 3
(c) The execution and delivery of this Pledge, and the
performance of its terms, will not violate or constitute a default under the
terms of any agreement, indenture or other instrument, license, judgment,
decree, order or regulation, applicable to Pledgor or any of its property; and
(d) Upon the delivery to Pledgee of the shares of Pledged
Securities now held of record by Pledgor, this Pledge shall create a valid first
lien upon and perfected security interest in the Pledged Securities and the cash
and noncash proceeds thereof, subject to no prior lien or subordinate lien, or
agreement purporting to grant to any third party a security interest in the
property or assets of Pledgor which would include the Pledged Securities.
5. Pledgor's Covenants. Pledgor hereby covenants that, until all
of the Obligations have been satisfied in full, except as permitted herein,
Pledgor will not sell, convey, or otherwise dispose of any of the Pledged
Securities or any interest therein, or create, incur, or permit to exist any
pledge, mortgage, lien, charge, encumbrance or any security interest whatsoever
in or with respect to any of the Pledged Securities or the proceeds thereof,
other than that created hereby.
6. Release of Pledged Securities to Pledgor. Pledgee agrees to
release this Pledge and to deliver the Pledged Securities to Pledgor if and when
Borrower has satisfied the terms of the Note, including the payment of all
principal and accrued interest thereunder.
7. Further Assurances. Pledgor shall at any time, and from time
to time, upon written request of Pledgee, execute and deliver such further
documents and do such further acts and things as Pledgee may reasonably request
to effect the purposes of this Pledge including, without limitation, delivering
to Pledgee, upon the occurrence of an Event of Default, irrevocable proxies with
respect to the Pledged Securities in form satisfactory to Pledgee. Until receipt
thereof, this Pledge shall constitute Pledgor's proxy to Pledgee or his nominee
to vote all shares of Pledged Securities then registered in Pledgor's name.
8. Termination of Pledge. Upon the satisfaction in full of all
Obligations, this Pledge shall terminate and Pledgee shall deliver to Pledgor,
the Pledged Securities or so much thereof as shall not have been sold or
otherwise applied pursuant to this Pledge.
9. Miscellaneous.
(a) Beyond the exercise of reasonable care to assure the
safe custody of the Pledged Securities while held hereunder, Pledgee shall have
no duty or liability to preserve rights pertaining thereto and shall be relieved
of all responsibility for the Pledged Securities upon surrendering the Pledged
Securities or tendering surrender of it to Pledgor.
(b) The rights and remedies provided herein and in any
related instruments, agreements and documents are cumulative and are in addition
to and not exclusive of any rights or remedies provided by law, including,
without limitation, the rights and remedies of a secured party under the Uniform
Commercial Code of New York, as enacted in any jurisdiction where the Pledged
Securities are deemed held.
-3-
<PAGE> 4
(c) The provisions of this Pledge are severable, and if
any clause or provision shall be held invalid or unenforceable in whole or in
part in any jurisdiction and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision in this
Pledge in any jurisdiction.
10. Governing Law. This Pledge shall be construed in accordance
with the substantive laws of the State of New York without regard to principles
of conflicts of laws and is intended to take effect as an instrument under seal.
The parties agree to the exclusive jurisdiction of the Federal and State courts
located in the State of New York in connection with any matter arising
hereunder, including the collection and enforcement hereof.
IN WITNESS WHEREOF, Pledgor has executed this Pledge Agreement as of
the day and year first above written.
/s/ Dennis Bakal
----------------------------------
Dennis Bakal
-4-
<PAGE> 1
EXHIBIT 4
PROMISSORY NOTE
$570,126.00 DECEMBER 3, 1999
FOR VALUE RECEIVED AND INTENDING TO BE LEGALLY BOUND HEREBY, Logistics
Management, LLC, a Kentucky limited liability company ("BORROWER"), promises to
pay to the order of Zanett Lombardier Master Fund, L.P., having an address at
Tower 49, 25th Floor, 12 East 49th Street, New York, New York 10017 ("LENDER"),
the principal sum of Five Hundred Seventy Thousand One Hundred Twenty Six
($570,126.00) Dollars, together with interest as set forth below, until the date
on which the principal amount is paid in full, payable in lawful money of the
United States of America in accordance with the terms of this Promissory Note
(this "NOTE").
1. USE OF PROCEEDS. Borrower shall use the proceeds of the loan
evidenced hereby solely for the purposes of making a loan to Dennis Bakal, the
chief executive officer of Professional Transportation Group Ltd., Inc., in the
amount of Five Hundred Thousand ($500,000.00) Dollars.
2. INTEREST.
A.1. During the period beginning on the date hereof and
ending on the Maturity Date (as hereinafter defined),
in the absence of an Event of Default (as defined
below), interest shall accrue daily on the
outstanding principal amount hereunder at twelve
(12%) percent per annum.
B. Upon and after the occurrence of an Event of Default,
the unpaid principal balance hereunder shall accrue
interest at eighteen (18%) percent per annum;
C. Interest shall be calculated hereunder for the actual
number of days that the principal is outstanding,
based on a three hundred sixty (360) day year.
Interest shall continue to accrue on the principal
balance hereof at the then-applicable rate of
interest specified in this Note, notwithstanding any
demand for payment, acceleration and/or the entry of
any judgment against Borrower, until all principal
owing hereunder is paid in full.
D. If at any time, the rate of interest applicable
hereunder shall be finally determined by any court of
competent jurisdiction, governmental agency or
tribunal to exceed the maximum rate of interest
permitted by any applicable law, then for such time
as such rate would be deemed excessive, application
thereof shall be suspended and there shall be charged
in lieu thereof the maximum rate of interest
permissible under such law.
3. PAYMENT. All principal, accrued and unpaid interest and other
charges due and owing in connection with this Note shall be
due and payable on the sixtieth (60th) day after the date
hereof (the "MATURITY DATE"); provided, however, that the
Lender shall have the right to extend, one or more times, the
Maturity Date of this Note to any date or dates designated by
Lender for a period of five years from the date hereof
<PAGE> 2
(any such date to which the Maturity Date is extended shall be
also referred to herein as the "MATURITY DATE"). Provided
that, pursuant to the Securities Purchase Agreement (the
"Purchase Agreement") by and between Borrower, Professional
Transportation Group, Ltd., Inc. ("PROFESSIONAL") and Dennis
Bakal, Borrower purchases the Shares (as defined in that
certain Purchase Agreement) from Dennis Bakal and provided
that Lender provides an additional five hundred thousand
dollars ($500,000) to Borrower to be used for the foregoing
purchase, at the option of the holder of this Note, payment
may be made either (i) in cash, or (ii) by the receipt by the
holder of this Note from Borrower of either (a) a number of
shares of Common Stock of U.S. Trucking, Inc. equal to the
amount obtained by dividing all amounts due hereunder by
$2.87, or (b) a number of shares of Common Stock and options
to acquire shares of Common Stock of Professional equal to
twenty-four percent (24%) of Professional's issued and
outstanding capital stock on a fully-diluted basis, determined
on the date of acquisition of such Shares by Borrower. If,
however, Borrower purchases the foregoing Shares and Lender
does not provide an additional five hundred thousand dollars
($500,000), at the option of the holder of this Note, payment
may be made either (i) in cash, or (ii) by the receipt by the
holder of this Note from Borrower of either (a) a number of
shares of Common Stock of U.S. Trucking, Inc. equal to the
amount obtained by dividing all amounts due hereunder by
$2.87, or (b) a number of shares of Common Stock and options
to acquire shares of Common Stock of Professional equal to
twelve percent (12%) of Professional's issued and outstanding
capital stock on a fully-diluted basis, determined on the date
of acquisition of such Shares by Borrower. Alternatively, if
Borrower does not purchase the foregoing Shares, at the option
of the holder of this Note, payment may be made either (i) in
cash, or (ii) by the receipt by the holder of this Note from
Borrower of a number of shares of Common Stock of U.S.
Trucking, Inc. equal to the amount obtained by dividing all
amounts due hereunder by $2.87. Borrower represents and
warrants that it is currently the owner of the aforementioned
shares of U.S. Trucking, Inc. and Professional Transportation
Group, Ltd., Inc. and will retain such ownership until all
amounts due hereunder are repaid in accordance with the terms
hereof.
4. EVENTS OF DEFAULT. Each of the following shall constitute an
"Event of Default" hereunder:
a. Borrower fails to make, in full, any payment of
interest or principal when due;
b. The breach by Borrower of any covenant contained
herein or the discovery by Lender of any false or
misleading representation made by Borrower in any
information submitted to Lender by Borrower;
c. Borrower makes an assignment for the benefit of its
creditors, becomes insolvent, or files or has filed
against it any petition, action, case or proceeding,
voluntary or involuntary, under any state or federal
law regarding
2
<PAGE> 3
Bankruptcy, insolvency, reorganization, receivership
or dissolution, including the United States
Bankruptcy Code;
d. The dissolution of Borrower;
e. A writ or warrant of attachment, garnishment,
execution, distraint or similar process shall have
been issued against Borrower or any of Borrower's
properties which shall have remained undischarged and
unstayed for a period of thirty (30) consecutive
days; or
f. A material adverse change in the business, operations
or condition, financial or otherwise, of Borrower
shall have occurred.
5. LENDER'S RIGHTS UPON DEFAULT. Upon the occurrence of any Event
of Default and without the necessity of giving any prior
written notice to Borrower, Lender may (a) accelerate the
maturity of this Note and all amounts payable hereunder and
demand immediate payment thereof and (b) exercise all of
Lender's rights and remedies under this Note or any other
document, instrument or agreement executed in connection
therewith or available at law.
6. APPLICATION OF FUNDS. All sums realized by Lender on account
of this Note, from whatever source received, shall be applied
first to any fees, costs and expenses (including attorney's
fees) incurred by Lender, second to accrued and unpaid
interest, and then to principal.
7. ATTORNEY'S FEES AND COSTS. In the event that Lender engages an
attorney to represent it in connection with (a) any alleged
default by Borrower under this Note, (b) any potential and/or
actual bankruptcy or other insolvency proceedings commenced by
or against Borrower and/or (c) any potential and/or actual
litigation arising out of or related to any of the foregoing,
then Borrower shall be liable to and shall reimburse Lender on
demand for all attorneys' fees, costs and expenses incurred by
Lender in connection with any of the foregoing.
8. WAIVER OF RIGHT TO JURY TRIAL. Borrower hereby knowingly,
voluntarily, and intentionally waives any rights it may have
to a trial by jury in respect of any litigation based hereon
or arising out of, under or in connection with this Note or
any course of conduct, course of dealing, statements (whether
verbal or written) or actions of Lender.
9. GOVERNING LAW. This Note shall be governed by the internal
laws of the State of New York without regard to conflicts of
laws principles.
3
<PAGE> 4
10. MISCELLANEOUS.
A. Borrower hereby waives protest, notice of protest,
presentment, dishonor, notice of dishonor and demand.
To the extent permitted by law, Borrower hereby
waives and releases all errors, defects and
imperfections in any proceedings instituted by Lender
under the terms of this Note.
B. The rights and privileges of Lender under this Note
shall inure to the benefit of its successors and
assigns. All representations, warranties and
agreements of Borrower made in connection with this
Note shall bind Borrower's successors and assigns.
C. If any provision of this Note shall for any reason be
held to be invalid or unenforceable, such invalidity
or unenforceability shall not affect any other
provision hereof, but this Note shall be construed as
if such invalid or unenforceable provision had never
been contained herein.
D. The waiver of any Event of Default or the failure of
Lender to exercise any right or remedy to which it
may be entitled shall not be deemed to be a waiver of
any subsequent Event of Default or of Lender's or
Lender's right to exercise that or any other right or
remedy to which Lender is entitled.
E. The rights and remedies of Lender under this Note
shall be in addition to any other rights and remedies
available to Lender at law or in equity, all of which
may be exercised singly or concurrently.
F. Lender shall have the right, without the prior
consent of Borrower, to assign to an Affiliate of
Lender all of Lender's rights and obligations
hereunder.
IN WITNESS WHEREOF, Borrower has duly executed this Promissory Note the
day and year first above written and has hereunto set hand and seal.
LOGISTICS MANAGEMENT, LLC
By: /s/ Anthony Huff
------------------------------
4
<PAGE> 1
EXHIBIT 5
PROMISSORY NOTE
$3,000,000.00 Cobb County, Georgia
January 11, 2000
FOR VALUE RECEIVED, the undersigned, LOGISTICS MANAGEMENT, LLC, a
limited liability company organized in the State of Kentucky (hereinafter
referred to as "MAKER"), promises to pay to the order of Dennis A. Bakal, a
resident of the State of Georgia (hereinafter referred to as "HOLDER"), at such
place as may be designated in writing by HOLDER, the principal sum of Three
Million and No/100 Dollars ($3,000,000.00), together with simple interest from
the date hereof upon said principal sum and the decreasing balances thereof at
the rate of 9.65% per annum, in lawful money of the United States of America.
Maker's first payment shall be due on or before January 10, 2000 in an
amount no less than One Million Dollars ($1,000,000.00), which amount shall
first be applied to accrued interest and the remainder to principal. An
additional payment by Maker shall be due on or before April 15, 2000 in an
amount no less than Five Hundred Thousand Dollars ($500,000.00) which amount
shall first be applied to accrued interest and the remainder to principal.
Thereafter, the Maker shall make equal monthly payments of principal and
interest beginning on May 15, 2000 and continuing through January 15, 2002 in a
monthly amount sufficient to amortize the remaining principal balance existing
on April 15, 2000 together with accrued interest.
This note may be prepaid in full or in part at any time without penalty
at the sole election of the MAKER, to be applied first to accrued interest and
then to principal.
Time is of the essence of this note. In the event this note, or any
part hereof, is collected by or through an attorney-at-law, MAKER agrees to pay
all costs of collection including, but not limited to, reasonable attorneys'
fees and costs. In the event that MAKER fails to make any payment when due,
HOLDER shall provide written notice of default to MAKER, which notice shall
allow MAKER ten (10) days from the date of receipt of such notice in which to
cure such default. If such default is not cured within the time allowed, the
balance hereof shall be deemed to be immediately accelerated without further
notice to MAKER.
This note is to be construed and enforceable in accordance with the
laws of the State of Georgia.
The indebtedness evidenced hereby is part of the consideration received
by HOLDER for the sale of certain of the stock of Professional Transportation
Group Ltd., Inc., a Georgia corporation, pursuant to that certain Securities
Purchase Agreement dated as of December 3, 1999 by and between MAKER and HOLDER,
the terms of which are incorporated herein by this reference.
All notices, requests, demands, and other communications hereunder shall
be deemed to have been duly given if in writing in accordance with the terms of
Section 6(f) of the Stock Purchase Agreement.
<PAGE> 2
IN WITNESS WHEREOF, MAKER has executed and delivered this note under its
corporate seal and the same has been attested, all by its officers thereunto
duly authorized the day and year first above written.
LOGISTICS MANAGEMENT, LLC
By: /s/ Anthony Huff
------------------------------
Its: Manager
------------------------------
<PAGE> 1
EXHIBIT 6
AMENDED AND RESTATED
PROMISSORY NOTE
$1,146,460.78 JANUARY 6, 2000
FOR VALUE RECEIVED AND INTENDING TO BE LEGALLY BOUND HEREBY, Logistics
Management, LLC, a Kentucky limited liability company ("BORROWER"), promises to
pay to the order of Zanett Lombardier Master Fund, L.P., having an address at
Tower 49, 25th Floor, 12 East 49th Street, New York, New York 10017 ("LENDER"),
the principal sum of One Million One Hundred Forty-Six Thousand Four Hundred
Sixty and Seventy-Eight ($1,146,460.78) Dollars, together with interest as set
forth below, until the date on which the principal amount is paid in full,
payable in lawful money of the United States of America in accordance with the
terms of this Promissory Note (this "NOTE").
1. USE OF PROCEEDS. Borrower shall use the proceeds of the loans
evidenced hereby solely for the purposes of purchasing
2,500,000 shares of Common Stock (the "Shares") of
Professional Transportation Group, Ltd. ("PROFESSIONAL")
representing Fifty-Seven Percent (55.87%) of the outstanding
capital stock of Professional on the date of such purchase
2. INTEREST.
1. During the period beginning on the date hereof and
ending on the Maturity Date (as hereinafter defined),
in the absence of an Event of Default (as defined
below), interest shall accrue daily on the
outstanding principal amount hereunder at twelve
(12%) percent per annum.
2. Upon and after the occurrence of an Event of Default,
the unpaid principal balance hereunder shall accrue
interest at eighteen (18%) percent per annum;
3. Interest shall be calculated hereunder for the actual
number of days that the principal is outstanding,
based on a three hundred sixty (360) day year.
Interest shall continue to accrue on the principal
balance hereof at the then-applicable rate of
interest specified in this Note, notwithstanding any
demand for payment, acceleration and/or the entry of
any judgment against Borrower, until all principal
owing hereunder is paid in full.
4. If at any time, the rate of interest applicable
hereunder shall be finally determined by any court of
competent jurisdiction, governmental agency or
tribunal to exceed the maximum rate of interest
permitted by any applicable law, then for such time
as such rate would be deemed excessive, application
thereof shall be suspended and there shall be charged
in lieu thereof the maximum rate of interest
permissible under such law.
3. PAYMENT. Five Hundred Eighty-One Thousand Five Hundred
Twenty-Eight and Fifty-Two One-Hundredths($581,528.52) Dollars
shall be due and payable on February 1, 2000, and the
remaining all principal, accrued and unpaid interest and
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other charges due and owing in connection with this Note shall
be due and payable on the sixtieth (60th) day after the date
hereof (the "MATURITY DATE"); provided, however, that the
Lender shall have the right to extend, one or more times, the
Maturity Date of this Note to any date or dates designated by
Lender for a period of five years from the date hereof (any
such date to which the Maturity Date is extended shall be also
referred to herein as the "MATURITY DATE"). Borrower shall
give Lender five business days advance notice of any
prepayment hereunder. Lender may elect to receive payment on
account of Borrower's indebtedness evidenced hereby (i) in
cash, (ii) by the receipt by Lender from Borrower of a number
of shares of common stock of U.S. Trucking, Inc. equal to the
amount obtained by dividing all amounts due hereunder by
$2.87, or (iii) receipt by Lender of 536,971 shares of
Professional's Common Stock (any shares of Professional's
Common Stock being hereinafter defined as "SHARES") for each
Five Hundred Eighty-One Thousand Five Hundred Twenty-Eight and
Fifty-Two One-Hundredths($581,528.52) Dollars repaid hereunder
(or pro rata portion thereof). Borrower represents and
warrants that it is currently the owner of the aforementioned
shares of U.S. Trucking, Inc. and Professional Transportation
Group, Ltd., Inc., that it will retain such ownership until
all amounts due hereunder are repaid in accordance with the
terms hereof, that all options and warrants owned by Dennis
Bakal were forfeited prior to the date hereof, will not effect
the capitalization of Professional, and that there are
4,474,757 Shares issued and outstanding as of the date hereof.
It is the intention of the parties that the aggregate number
of Shares, if any, acquired by Lender upon repayment of this
Note (in full in Shares) will represent Twenty-Four Percent
(24%) of the issued and outstanding Shares as of the date
hereof. If the total number of Shares acquired by Lender does
not represent Twenty-Four Percent (24%) of the issued and
outstanding Shares as of the date hereof, Borrower will
transfer additional Shares to Lender to reflect the intention
of the parties.
1. EVENTS OF DEFAULT. Each of the following shall constitute an
"Event of Default" hereunder:
a. Borrower fails to make, in full, any payment of
interest or principal when due;
b. The breach by Borrower of any covenant contained
herein or the discovery by Lender of any false or
misleading representation made by Borrower in any
information submitted to Lender by Borrower;
c. Borrower makes an assignment for the benefit of its
creditors, becomes insolvent, or files or has filed
against it any petition, action, case or proceeding,
voluntary or involuntary, under any state or federal
law regarding Bankruptcy, insolvency, reorganization,
receivership or dissolution, including the United
States Bankruptcy Code;
d. The dissolution of Borrower;
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<PAGE> 3
e. A writ or warrant of attachment, garnishment,
execution, distraint or similar process shall have
been issued against Borrower or any of Borrower's
properties which shall have remained undischarged and
unstayed for a period of thirty (30) consecutive
days; or
f. A material adverse change in the business, operations
or condition, financial or otherwise, of Borrower
shall have occurred.
4. LENDER'S RIGHTS UPON DEFAULT. Upon the occurrence of any Event
of Default and without the necessity of giving any prior
written notice to Borrower, Lender may (a) accelerate the
maturity of this Note and all amounts payable hereunder and
demand immediate payment thereof and (b) exercise all of
Lender's rights and remedies under this Note or any other
document, instrument or agreement executed in connection
therewith or available at law.
5. APPLICATION OF FUNDS. All sums realized by Lender on account
of this Note, from whatever source received, shall be applied
first to any fees, costs and expenses (including attorney's
fees) incurred by Lender, second to accrued and unpaid
interest, and then to principal.
6. ATTORNEY'S FEES AND COSTS. In the event that Lender engages an
attorney to represent it in connection with (a) any alleged
default by Borrower under this Note, (b) any potential and/or
actual bankruptcy or other insolvency proceedings commenced by
or against Borrower and/or (c) any potential and/or actual
litigation arising out of or related to any of the foregoing,
then Borrower shall be liable to and shall reimburse Lender on
demand for all attorneys' fees, costs and expenses incurred by
Lender in connection with any of the foregoing.
7. Waiver of Right to Jury Trial. Borrower hereby knowingly,
voluntarily, and intentionally waives any rights it may have
to a trial by jury in respect of any litigation based hereon
or arising out of, under or in connection with this Note or
any course of conduct, course of dealing, statements (whether
verbal or written) or actions of Lender.
8. GOVERNING LAW. This Note shall be governed by the internal
laws of the State of New York without regard to conflicts of
laws principles.
9. MISCELLANEOUS.
1. Borrower hereby waives protest, notice of protest,
presentment, dishonor, notice of dishonor and demand.
To the extent permitted by law, Borrower hereby
waives and releases all errors, defects and
imperfections in any proceedings instituted by Lender
under the terms of this Note.
2. The rights and privileges of Lender under this Note
shall inure to the benefit of its successors and
assigns. All representations, warranties and
agreements
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<PAGE> 4
of Borrower made in connection with this Note shall
bind Borrower's successors and assigns.
3. If any provision of this Note shall for any reason be
held to be invalid or unenforceable, such invalidity
or unenforceability shall not affect any other
provision hereof, but this Note shall be construed as
if such invalid or unenforceable provision had never
been contained herein.
4. The waiver of any Event of Default or the failure of
Lender to exercise any right or remedy to which it
may be entitled shall not be deemed to be a waiver of
any subsequent Event of Default or of Lender's or
Lender's right to exercise that or any other right or
remedy to which Lender is entitled.
5. The rights and remedies of Lender under this Note
shall be in addition to any other rights and remedies
available to Lender at law or in equity, all of which
may be exercised singly or concurrently.
6. Lender shall have the right, without the prior
consent of Borrower, to assign to an Affiliate of
Lender all of Lender's rights and obligations
hereunder.
2. SURVIVORSHIP. This Note replaces and supersedes, but
does not extinguish or constitute a novation of the
indebtedness evidenced by that certain Promissory
Note dated December 3, 1999 in the principal amount
of Five Hundred Seventy Thousand One Hundred
Twenty-Six ($570,126.00) Dollars executed and
delivered by Borrower to Lender (the "ORIGINAL
NOTE").
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<PAGE> 5
IN WITNESS WHEREOF, Borrower has duly executed this Promissory Note the
day and year first above written and has hereunto set hand and seal.
LOGISTICS MANAGEMENT, LLC
By: /s/ Anthony Huff
-----------------------------
Name: Anthony Huff
Title: Manager
