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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 19, 1997
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PROFESSIONAL TRANSPORTATION GROUP LTD., INC.
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(Exact name of registrant
as specified in its charter)
Georgia 000-22571 58-1915632
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(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
5025 Derrick Jones Road, Suite 120, Atlanta, Georgia 30349
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (770) 907-3360
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(Former name or former address, if changed since last report.)
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ITEM 5. OTHER EVENTS.
On November 19, 1997, Professional Transportation Group Ltd., Inc., a
Georgia corporation (the "Company"), entered into an Amended and Restated
Commercial Loan Agreement (the "Agreement") with SouthTrust Bank, N.A.
("SouthTrust"), whereby the Company received three separate loan facilities from
SouthTrust: (i) a $5 million working capital line of credit to Timely North,
Inc., a wholly-owned subsidiary of the Company; (ii) a $3.7 million capital
expenditure line of credit; and (iii) a $2 million working capital line of
credit which replaces the $1,915,000 line of credit extended to the Company
through its Chairman and Chief Executive Officer in March 1997. These facilities
are secured by all of the Company's and its subsidiaries' assets and are
guaranteed by the Company, its subsidiaries and personally by the Chairman and
Chief Executive Officer. The Agreement provides for certain financial covenants,
with which the Company is currently in compliance.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL SCHEDULES AND EXHIBITS.
(c) Exhibits.
10.1 Amended and Restated Commercial Loan Agreement, dated November 19,
1997, by and among the Company, Truck-Net, Inc., Timely
Transportation, Inc., PTG, Inc., Timely North, Inc. and SouthTrust
Bank, N.A.
10.2 Commercial Revolving Note, dated November 19, 1997, by and between
Timely North, Inc. and SouthTrust, N.A., in the original principal
amount of $5 million.
10.3 Commercial Revolving Note, dated November 19, 1997, by and between
the Company and SouthTrust Bank, N.A., in the original principal
amount of $3.7 million.
10.4 Commercial Revolving Note, dated November 19, 1997, by and between
the Company and SouthTrust Bank, N.A., in the original principal
amount of $2 million.
10.5 Amended and Restated General Security Agreement, dated November
19, 1997, by and among the Company, Truck-Net, Inc., Timely
Transportation, Inc., PTG, Inc., Timely North, Inc. and SouthTrust
Bank, N.A.
10.6 Guaranty of Payment and Performance, dated November 19, 1997, by
and among the Company, Truck-Net, Inc., Timely Transportation,
Inc., PTG, Inc. and SouthTrust Bank, N.A.
10.7 Guaranty of Payment and Performance, dated November 19, 1997, by
and among Truck-Net, Inc., Timely Transportation, Inc., PTG, Inc.,
Timely North, Inc. and SouthTrust Bank, N.A.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PROFESSIONAL TRANSPORTATION GROUP
LTD., INC.
By: /s/ Peter C. Roth
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Peter C. Roth
Chief Financial Officer
Dated: November 26, 1997
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Name
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<S> <C>
10.1 Amended and Restated Commercial Loan Agreement, dated November 19,
1997, by and among the Company, Truck-Net, Inc., Timely
Transportation, Inc., PTG, Inc., Timely North, Inc. and SouthTrust
Bank, N.A.
10.2 Commercial Revolving Note, dated November 19, 1997, by and between
Timely North, Inc. and SouthTrust, N.A., in the original principal
amount of $5 million.
10.3 Commercial Revolving Note, dated November 19, 1997, by and between
the Company and SouthTrust Bank, N.A., in the original principal
amount of $3.7 million.
10.4 Commercial Revolving Note, dated November 19, 1997, by and between
the Company and SouthTrust Bank, N.A., in the original principal
amount of $2 million.
10.5 Amended and Restated General Security Agreement, dated November
19, 1997, by and among the Company, Truck-Net, Inc., Timely
Transportation, Inc., PTG, Inc., Timely North, Inc. and SouthTrust
Bank, N.A.
10.6 Guaranty of Payment and Performance, dated November 19, 1997, by
and among the Company, Truck-Net, Inc., Timely Transportation,
Inc., PTG, Inc. and SouthTrust Bank, N.A.
10.7 Guaranty of Payment and Performance, dated November 19, 1997, by
and among Truck-Net, Inc., Timely Transportation, Inc., PTG, Inc.,
Timely North, Inc. and SouthTrust Bank, N.A.
</TABLE>
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EXHIBIT 10.1
SOUTHTRUST
AMENDED AND RESTATED COMMERCIAL LOAN AGREEMENT
THIS AMENDED AND RESTATED COMMERCIAL LOAN AGREEMENT (this "Agreement") is
made and entered into on November 19, 1997, by and among PROFESSIONAL
TRANSPORTATION GROUP LTD., INC., a Georgia corporation, TRUCK-NET, INC., a
Georgia corporation, TIMELY TRANSPORTATION, INC., a Georgia corporation, PTG,
INC., a Georgia corporation, and TIMELY NORTH, INC., a Georgia corporation with
their principal place of business and chief executive offices located at 5025
Derrick Jones Road, Suite 120, Atlanta, Georgia 30349 (collectively,
"Borrower"), and SOUTHTRUST BANK, N.A., a national banking association ("Bank").
W I T N E S S E T H :
For and in consideration of the mutual promises, undertakings and
covenants set forth herein, and for other valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, Bank and Borrower,
intending to be legally bound, agree as follows:
1. DEFINITIONS. As used in this Agreement and in addition to those terms
defined elsewhere in this Agreement, the following terms shall have the meanings
set forth below, unless the context otherwise requires:
Accounting terms used in this Agreement, such as "current assets,"
"current liabilities," "LIFO reserve," "net income," 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.
"Agreement" shall mean this Amended and Restated Commercial Loan
Agreement, together with any amendments or supplements hereto and any schedules
or exhibits hereto.
"Borrower" shall mean the person or entity named in the first sentence of
this Agreement and who executes this Agreement below as "Borrower." For purposes
of Sections 7(m) and 8(h), "Borrower" also includes any member of a "control
group" (as defined in ERISA) of which the named Borrower is a member.
"Borrowing Base" shall mean eighty percent (80%) of Eligible Accounts.
"Borrowing Base Certificate" shall mean a certificate, in form and
substance satisfactory to Bank, setting forth in detail the Borrowing Base and
certified by Borrower to be true and correct as of its date.
"Compliance Certificate" shall mean a certificate, in form and substance
satisfactory to Bank, assuring Bank of Borrower's compliance with all of the
terms and conditions of this Agreement and certified by Borrower to be true and
correct as of its date.
"Eligible Accounts" shall mean the aggregate of the outstanding balances
of all of Borrower's accounts (as such term is defined by Article 9 of the
Uniform Commercial Code) that conform to the representations and warranties of
Borrower contained in each and every document and instrument executed in
connection with the Revolving Loans; provided that no account owing by any
account debtor of Borrower shall be deemed to be included in Eligible Accounts
if (i) the account is unpaid more than ninety (90) days after the invoice date
thereof; (ii) fifty percent (50%) or more of the aggregate balances of all
accounts owed to Borrower by said account debtor are unpaid more than ninety
(90) days after the invoice dates thereof; (iii) such account would make all
accounts owing by said account debtor to Borrower aggregate more than fifty
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percent (50%) of all accounts owed to Borrower by all account debtors; (iv) the
account debtor is a division, subsidiary, affiliate or employee of Borrower or
is any other person, corporation, partnership or other legal entity related
through common stock ownership or otherwise related directly or indirectly to
Borrower or any of the Borrower's shareholders or is an employee of Borrower;
(v) the account debtor is a creditor of Borrower or otherwise has available with
respect to the account any offset, recoupment, credit, charge or defense (to the
extent of such offset, recoupment, credit, charge or defense); (vi) Borrower has
received any notice of the death of the account debtor or any partner thereof,
or of the dissolution, termination of existence, insolvency, business failure,
appointment of a receiver for any part of the property of, assignment for the
benefit of creditors by, or the filing of a petition in bankruptcy or the
commencement of any proceeding under any bankruptcy or insolvency laws by or
against, the account debtor; (vii) the account arises out of a contract with or
an order from an agency of the United States government; (viii) Bank has deemed
the account to be ineligible because of uncertainty about the credit worthiness
of the account debtor or because Bank otherwise reasonably considers the
collateral value thereof to Bank to be impaired or Borrower's or Bank's ability
to realize such value to be insecure; (ix) the location of the account debtor to
which the goods generating the account were sent is outside the United States
and such account debtor has not provided to Borrower a letter of credit
satisfactory to Bank; (x) the goods generating the account have not been
delivered to the account debtor; or (xi) Bank, in its sole discretion,
determines in good faith that such account is ineligible.
"Event of Default" shall mean any default or event of default under this
Agreement, the Note or any Security Instrument (as hereinafter defined).
"Fixed Charge Coverage" at any date shall mean a fraction the numerator
of which is the sum of net income (not including non-recurring or one-time
charges) for any period ending on such date, plus the interest, lease and rental
expenses of Borrower for the period, plus the sum of non-cash expenses or
allowances for the period (including, without limitation, amortization or
write-down of intangible assets, and depreciation), and the denominator of which
is the sum of the current portion of the long-term debt as of such date, plus
the interest, lease and rental expenses for the period.
"Guarantor" shall mean any person or entity who endorses the Note or who
now or hereafter guarantees the payment, performance or collection of this
Agreement, the Note or the Obligations, in whole or in part.
"Loan" shall mean the following: If Section 2(a) of this Agreement is
applicable, "Loan" means each and every Term Loan; if Section 2(b) of this
Agreement is applicable, "Loan" means each and every Revolving Loan; and if both
Section 2(a) and Section 2(b) are applicable, "Loan" means each and every Term
Loan and each and every Revolving Loan.
"Loan Documents" shall mean this Agreement, the Note and all documents,
instruments and agreements executed in connection therewith or pursuant thereto.
"Note" shall mean the following: If Section 2(a) of this Agreement is
applicable, "Note" means each Term Note; if Section 2(b) of this Agreement is
applicable, "Note" means each Revolving Note; and if both Section 2(a) and
Section 2(b) are applicable, "Note" means each Term Note and each Revolving
Note.
"Obligations" shall mean any and all indebtedness, liabilities and
obligations of Borrower to Bank whatsoever, including, without limiting the
generality of the foregoing: any and all indebtedness, liabilities and
obligations of Borrower to Bank arising out of the Loan; all Bank's fees,
charges and expenses of or incidental to the preparation, renewal, modification
or enforcement of Borrower's obligations arising out of the Loan and any and all
extensions or renewals thereof in whole or in part; and any indebtedness,
liabilities or obligations of Borrower to Bank under any later or future
advances or loans made by Bank to Borrower, and any and all extensions or
renewals thereof in whole or in part, joint or several, and in any event whether
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existing as of the date hereof or hereafter arising and whether direct,
indirect, absolute or contingent, as maker, endorser, guarantor or otherwise,
including, without limitation, Bank's participation in others' loans and all
charges, interest, expenses, and costs of collection in connection with the
foregoing, including, without limitation, fifteen percent (15%) of the foregoing
as attorneys' fees (if collected by or through an attorney) and other legal and
court costs.
"Obligor" shall mean Borrower, Guarantor and each other individual or
entity primarily or secondarily, directly or indirectly, liable for, whether as
maker, endorser, surety, guarantor or otherwise, or directly or indirectly
securing, any of the Obligations, together with his, her, its or their heirs,
administrators, executors, successors and assigns, including, without
limitation, any resulting or surviving corporation following any merger or any
other reorganization, any debtor in possession or similar entity following the
filing of a petition for relief by or against such Obligor under any chapter of
the Federal Bankruptcy Code, as amended, or in any similar proceeding under any
state or federal law, and any proprietorship, partnership, corporation, trust or
other entity resulting from or arising out of the dissolution, liquidation or
change in form of business organization by such Obligor or following any change
of name or domicile by such Obligor.
"Tangible Net Worth" of an entity shall mean the total of all items and
categories of property of such entity, which, in accordance with generally
accepted accounting principles in the United States, would be included in
determining total assets as shown on the assets side of such entity's balance
sheet at the date as of which such total assets are determined (excluding any
value for receivables owing by officers, directors, employees or affiliates of
such entity, and any value for intangible assets, including, without limitation,
good will, trademarks, patents, copyrights, going concern value, organization
expense and other similar items), plus any LIFO reserve, if applicable, less the
total of all items and categories of indebtedness, obligations and liabilities
of such entity which, in accordance with generally accepted accounting
principles in the United States, would be included in determining total
liabilities as shown on the liabilities side of such entity's balance sheet at
the date as of which such total liabilities are to be determined, but excluding
the indebtedness of such entity, if any, payment of which has been subordinated
to the payment in full of the Obligations pursuant to a written instrument in
form and substance satisfactory to Bank.
2. THE LOAN. Upon the execution of this Agreement and provided that
Borrower is in compliance with its terms and conditions:
(a) TERM LOAN. Borrower may from time to time request from Bank, and Bank in its
discretion may make to Borrower, upon the terms and conditions set forth in this
Agreement, term loans (each such loan, a "Term Loan"). Each Term Loan, if made,
together with interest thereon and loan fees and commitment fees, as applicable,
shall be evidenced by, and shall be repayable in accordance with, the terms and
conditions of a Commercial Promissory Note (such note, together with any and all
amendments thereto and renewals thereof, a "Term Note") made by Borrower to the
order of Bank and in form and substance satisfactory to Bank. Proceeds of each
Term Loan will be used by Borrower solely for purposes approved by Bank.
(b) REVOLVING LOANS. (i) WORKING CAPITAL LINE OF CREDIT TO PROFESSIONAL
TRANSPORTATION GROUP LTD., INC. Borrower Professional Transportation Group Ltd.,
Inc.("Professional") may from time to time request from Bank, and Bank in its
discretion may extend to Professional, a working capital line of credit in the
maximum amount of up to an aggregate principal sum outstanding equal to the face
amount of a Commercial Revolving Note dated of even date herewith (said amount
being $2,000,000.00, and which note, together with any and all amendments
thereto and renewals thereof, are referred to as the "Revolving Note") made by
Professional to the order of Bank and in form and substance satisfactory to Bank
(the "Maximum Sum"), which sum may, at Bank's discretion, be borrowed, and which
Professional shall repay, together with interest thereon and loan fees and
commitment fees, as applicable, in accordance with the terms and conditions of
the Revolving Note, which shall evidence Professional's obligation to repay each
advance made under the line of credit, together with such interest and fees, if
applicable (each such advance a "Revolving Loan" and all such advances
collectively the "Revolving Loans"). Professional may borrow, repay, and
reborrow a maximum aggregate amount of advances outstanding under working
capital Revolving Loans not to exceed the lesser
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of the Maximum Sum or the Borrowing Base. If at any time the outstanding
principal balance of the Revolving Note exceeds the Borrowing Base, Professional
shall pay Bank immediately, without notice or demand, the amount of such excess,
regardless of the stipulated date of maturity, if not payable on demand.
Proceeds of the working capital line of credit Revolving Loans will be used by
Professional solely for its working capital needs in its present line of
business and for only such other purposes as may be specifically approved by
Bank in writing. If requested to do so by Professional, and subject to the terms
and conditions set forth in this Agreement, Bank agrees to issue one or more
letters of credit for the account of Professional; provided, however, that (A)
prior to the issuance of each letter of credit Professional shall execute and
deliver to Bank a letter of credit application and agreement (on Bank's standard
form therefor) for such letter of credit which shall specify the terms and
conditions of such letter of credit, (B) each letter of credit shall be in form
and substance mutually acceptable to Professional and Bank, (C) prior to the
issuance of each letter of credit, Professional shall pay to Bank a
non-refundable letter of credit fee therefor at the rate of 1.25% per annum plus
any other usual and customary fees and charges imposed by Bank in the issuance
of a letter of credit, (D) the sum of the aggregate stated amount of all letters
of credit then outstanding plus all then outstanding reimbursement obligations
under letter of credit agreements shall not exceed $300,000 at any one time, (E)
no letters of credit shall be issued on or after the maturity of the Revolving
Loans, (F) the proceeds of each Letter of credit may be used only for a purpose
for which Professional would be entitled to obtain a Revolving Loan hereunder,
and (G) Professional's reimbursement obligations to Bank for any and all amounts
paid by Bank with respect to any draw under any letter of credit shall
constitute an Obligation of Professional to Bank which will be secured and
guaranteed on an equal priority basis with all other Obligations pursuant to
this Agreement and the other Loan Documents and, subject to the terms and
conditions of this Agreement, Professional may obtain or Bank may make a
Revolving Loan hereunder in order to repay each reimbursement obligation.
Notwithstanding anything in this Agreement to the contrary, Bank shall not be
obligated hereunder or under any letter of credit agreement to issue any letter
of credit if the sum of the aggregate principal balance of the Revolving Loans
then outstanding plus the aggregate stated amount of all letters of credit then
outstanding plus the aggregate outstanding principal amount of all reimbursement
obligations then outstanding exceeds, or would exceed with the issuance of such
letter of credit, the lesser of the Maximum Sum or the Borrowing Base then in
effect.
(ii) WORKING CAPITAL LINE OF CREDIT TO TIMELY NORTH, INC. Borrower Timely
North, Inc.("Timely North") may from time to time request from Bank, and Bank in
its discretion may extend to Timely North, a working capital line of credit in
the maximum amount of up to an aggregate principal sum outstanding equal to the
face amount of a Commercial Revolving Note dated of even date herewith (said
amount being $5,000,000.00, and which note, together with any and all amendments
thereto and renewals thereof, are referred to as the "Revolving Note") made by
Timely North to the order of Bank and in form and substance satisfactory to Bank
(the "Maximum Sum"), which sum may, at Bank's discretion, be borrowed, and which
Timely North shall repay, together with interest thereon and loan fees and
commitment fees, as applicable, in accordance with the terms and conditions of
the Revolving Note, which shall evidence Timely North's obligation to repay each
advance made under the line of credit, together with such interest and fees, if
applicable (each such advance a "Revolving Loan" and all such advances
collectively the "Revolving Loans"). Timely North may borrow, repay, and
reborrow a maximum aggregate amount of advances outstanding under working
capital Revolving Loans not to exceed the lesser of the Maximum Sum or the
Borrowing Base. If at any time the outstanding principal balance of the
Revolving Note exceeds the Borrowing Base, Timely North shall pay Bank
immediately, without notice or demand, the amount of such excess, regardless of
the stipulated date of maturity, if not payable on demand. Proceeds of the
working capital line of credit Revolving Loans will be used by Timely North
solely for its working capital needs in its present line of business and for
only such other purposes as may be specifically approved by Bank in writing.
(iii) CAPITAL EXPENDITURE LINE OF CREDIT TO PROFESSIONAL TRANSPORTATION
GROUP LTD., INC. Professional may from time to time request from Bank, and Bank
in its discretion may extend to Borrower, a capital expenditure line of credit
in the maximum amount of up to an aggregate principal sum outstanding equal to
the face amount of the Commercial Promissory Note dated of even date herewith
(said amount being
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$3,700,000.00, and which note, together with any and all amendments thereto and
renewals thereof, is referred to as the "Capital Expenditure Note"), which sum
may, at Bank's discretion, be borrowed, and which Professional shall repay,
together with interest thereon and loan fees and commitment fees, as applicable,
in accordance with the terms and conditions of the Capital Expenditure Note,
which shall evidence Borrower's obligation to repay each advance made under the
capital expenditure line of credit, together with such interest and fees, if
applicable (each such advance a "Revolving Loan" and all such advances
collectively the "Revolving Loans"). Proceeds of the capital expenditure line of
credit Revolving Loans will be used by Professional solely for the purchase of
new equipment (not to exceed 100% of the cost thereof as evidenced by invoices
or other documentary evidence acceptable to Bank), that will be classified as a
fixed asset on Professional's balance sheet, and for only such other purposes as
may be specifically approved by Bank in writing. Each request for, and each
acceptance of, an advance of any Revolving Loans shall constitute a
reaffirmation of the truth and accuracy of the representations and warranties
set forth in this Agreement and in the Borrowing Base Certificate.
3. SECURITY. As security for the full payment and performance of the
Obligations, Borrower hereby assigns, conveys, and grants a security interest to
Bank in all property, real and personal, in which Borrower has an interest and
which is in or comes into the possession, control or custody of Bank (including,
but not limited to, balances, credits, deposits, accounts and monies), all
property in which Borrower has heretofore granted or hereinafter grants to Bank
a security interest or has heretofore conveyed or hereinafter conveys to Bank
security title to secure any obligation pursuant to each and every mortgage,
deed to secure debt, security agreement or other instrument, agreement or
document heretofore or hereinafter executed by Borrower in favor of Bank
(collectively the "Security Instruments"), and all proceeds and products of the
foregoing property and all books and records relating thereto and all property
of Borrower in which Bank has acquired or hereafter otherwise acquires a lien,
encumbrance or other right (all of the aforesaid property collectively the
"Collateral"), and Borrower hereby agrees that Bank may, at any time and without
notice, apply any balances, credits, deposits, accounts, monies or other
indebtedness now or hereafter owing by Bank to Borrower in satisfaction of any
of the Obligations, whether or not due.
4. CONDITIONS TO INITIAL REVOLVING LOAN AND EACH TERM LOAN. Bank shall
not be obligated to make the initial Revolving Loans, if applicable, or any Term
Loan, if applicable, unless:
(a) Each of the conditions set forth in Section 5 hereof have been
satisfied;
(b) Bank shall have received payment in full of all fees, charges, and
expenses due in connection with this Agreement, including, without limitation,
any loan fees, commitment fees, service fees and attorneys' fees; and
(c) Bank shall have received all loan documentation deemed reasonably
necessary or desirable by Bank or its counsel, satisfactory in form and
substance to Bank, providing for the Loan to be extended, secured and
guaranteed. With regard to each capital expenditure line of credit Revolving
Loan, Bank shall receive a copy of the invoice for the equipment to be purchased
with the proceeds of the Revolving Loan, the serial number of the equipment, a
UCC-1 Financing Statement, and such other documentation as Bank shall require to
obtain and perfect a first priority purchase money security interest in the
equipment purchased with the proceeds of the Revolving Loan. No advance of the
capital expenditure line of credit Revolving Loan shall exceed 100% of the cost
of the equipment purchased.
5. CONDITIONS TO ALL LOANS. Bank shall not be obligated to make any Loan,
unless:
(a) The representations and warranties made by or on behalf of Borrower
in connection with the Loan and the representations and warranties contained in
this Agreement are true and correct on and as of the date of the request for the
Loan;
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(b) If the request is for a Revolving Loan, the amount of the Revolving
Loan requested, when aggregated with the unpaid principal balance of all
Revolving Loans, does not exceed the lesser of the Borrowing Base or the Maximum
Sum;
(c) At the time of the request for the Loan, no Event of Default or an
event that upon notice or lapse of time or both would constitute an Event of
Default shall have occurred, and there is no claim, action, suit or proceeding
pending or threatened against Borrower, or any other fact or circumstance, that
would, in Bank's reasonable sole opinion, materially affect any of Borrower's
assets or result in a material adverse change in the business condition,
affairs, or operations of Borrower; and
(d) Bank, in its sole discretion, determines to make the Loan.
6. REPRESENTATIONS AND WARRANTIES OF BORROWER. In order to induce Bank to
enter into this Agreement and to make or extend Loans as contemplated hereby,
Borrower represents and warrants to Bank, each of which representations and
warranties is deemed to be material, that:
(a) Each Obligor which is a corporation is duly organized, validly
existing and in good standing under the laws of the State of Georgia, and has
full right, power and authority to conduct its business as currently conducted
and is qualified to do business in all jurisdictions in which it conducts its
business; Borrower's principal place of business and chief executive office is
located at the address set forth above.
(b) Each Obligor has full right, power and authority to enter into the
Loan Documents to which it or 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.
(c) The execution, delivery and performance by each Obligor of the Loan
Documents to which such Obligor is a party have been duly authorized by all
requisite action on the part of such Obligor and do not and will not (i) violate
any provision of such Obligor's articles of incorporation, by-laws, partnership
agreement or other organizational documents, or any law, judgment, order or
ruling of any court or governmental agency, or (ii) be in conflict with, result
in a breach of, or constitute, following notice or lapse of time or both, a
default under any mortgage, indenture, security agreement, contract or other
instrument, agreement or undertaking to which any Obligor is a party or which
purports to be binding on any Obligor or any of its property.
(d) This Agreement and each of the Loan Documents constitutes or will
constitute upon execution thereof the legal, valid and binding obligation of the
party executing the same, enforceable against it or him in accordance with its
terms, except as enforceability may be subject to and limited by all applicable
bankruptcy, insolvency, moratorium, arrangement, reorganization and other laws
and equitable principles of general application affecting the rights and
remedies of creditors generally, and each Obligor possesses all permits,
memberships, franchises, contracts, licenses, trademark rights, trade names,
patents, and other authorizations necessary to enable it or him to conduct its
or his business operations as now conducted, and no filing with, and no consent,
approval, permission, authorization, order or license of, any individual,
entity, or governmental authority, bureau or agency is necessary in connection
with the execution, delivery, performance, validity or enforceability of the
Loan Documents.
(e) Except as disclosed in a letter from Bank to Borrower dated March 28,
1997, there is no litigation, action, proceeding or investigation pending or
threatened before any court or administrative or governmental agency that may,
individually or collectively, materially adversely affect the financial
condition or business operations of any Obligor or any of its or their
properties or assets or that questions the validity of any action taken or to be
taken by any Obligor pursuant to or in connection with the transactions
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contemplated by this Agreement, nor does Borrower know or have any reasonable
grounds to know the basis for the institution of such litigation, action,
proceeding or investigation.
(f) The most recent financial statements of each Obligor delivered to
Bank are complete and correct and fairly and accurately present the financial
condition of such Obligor and the results of operations as of such date and for
such period to which such statements relate and have been prepared in accordance
with generally accepted accounting principles applied in a manner consistent
with any financial statement previously furnished to Bank, except as noted in
such statements. Since the date of those most recent financial statements of
each Obligor, there has been no material adverse change in the financial
condition of such Obligor and, after due inquiry, there exists no material
liability or obligation, direct or indirect, fixed or contingent, assertable
against such Obligor that is not reflected in its most recent financial
statements or in the notes thereto.
(g) All federal, state and other tax returns of Borrower required by law
to be filed have been completed in full and have been duly filed with the
appropriate governmental agency. All taxes, assessments and withholdings shown
on such returns or billed to Borrower have been paid, and Borrower maintains
adequate reserves and accruals in respect of all such federal, state and other
taxes, assessments and withholdings. There are no unpaid assessments pending or
threatened against Borrower for any taxes or withholdings, and Borrower knows of
no basis therefor; and no waivers of the Statute of Limitations have been
granted to the Commissioner of Internal Revenue or any other taxing authority by
Borrower.
(h) The minimum funding standards of Section 302 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), have been met at
all times with respect to all "plans" (if any) of each Obligor to which such
standards apply; no Obligor has made a "partial withdrawal" or a "complete
withdrawal" from any "multi- employer plan"; no "reportable event" or
"prohibited transaction" has occurred with respect to any such "plan" (as all
quoted terms are defined in ERISA); no Obligor has incurred any material
liability to the Pension Benefit Guaranty Corporation established under ERISA in
connection with any "plan."
(i) Except as otherwise expressly disclosed by Borrower to Bank in
writing on the date of this Agreement, no "hazardous substance" (as that term is
defined in Section 101 of the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended ["CERCLA"]) has been released, discharged,
disposed of, or stored on any Obligor's owned or leased real or personal
property whether by any Obligor, by any third party or by any predecessor in
interest or title to such Obligor; each Obligor and all of such Obligor's
properties are in compliance with all applicable local, state and federal
environmental laws and regulations; no notice has been served on any Obligor by
any governmental authority or any individual or entity claiming violation of any
environmental protection law or regulation, or demanding compliance with any
environmental protection law or regulation, or demanding payment, indemnity, or
contribution for any environmental damage or injury to natural resources; no
"hazardous substance" (as defined in CERCLA) is produced or used in any
Obligor's business; and no improvement on any real property owned or leased by
any Obligor contains any asbestos, including, without limitation, asbestos
insulation on ceilings, piping or structural members or supports.
(j) No representation or warranty by Borrower made herein and no
statement or certificate to be furnished to Bank pursuant hereto in connection
with the transactions contemplated hereby contains or will contain any untrue
statement of a material fact or will omit to state a material fact necessary to
make the statements therein not misleading.
7. AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that
from and after the date hereof, and so long as the Obligations remain unpaid or
this Agreement remains in effect, as follows:
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<PAGE> 8
(a) Borrower shall deliver to Bank, in form and content satisfactory to
Bank, within ninety (90) days after the last day of each fiscal year of
Borrower, annual financial statements of each corporate Borrower on a
consolidated basis, including statements of income, expenses, retained earnings
and cash flows for the just-ended fiscal year and a balance sheet as of the end
of such fiscal year, such statements to be prepared and audited by a certified
public accountant acceptable to Bank.
(b) Borrower shall deliver to Bank, in form and content satisfactory to
Bank, within forty-five (45) days after the last day of each calendar quarter,
interim financial statements of each corporate Borrower, including an income and
expense statement and balance sheet, such statements to present fairly the
financial condition and results of operations as of and for the periods
specified, to set forth all material claims and liabilities, contingent or
otherwise, and fully to disclose any Event of Default, including the nature and
period of existence thereof, and such statements to be prepared and certified by
the chief financial officer of the corporate Borrowers.
(c) Borrower shall deliver to Bank, in form and content satisfactory to
Bank, within forty-five (45) days after the last day of each calendar quarter,
such data, information and reports of or concerning Borrower and each Obligor as
Bank may reasonably request and the following additional documents and
information: an aging of Borrower's accounts receivable and a Borrowing Base
Certificate. Borrower shall deliver to Bank, in form and content satisfactory to
Bank, within forty-five (45) days after the last day of each fiscal quarter, a
Compliance Certificate and a report from Raymond James & Associates, Inc.
showing the status of the accounts of Guarantor Dennis A. Bakal maintained with
Raymond James & Associates, Inc., including account balances and a description
of all investments in the accounts. Additionally, Borrower shall deliver to
Bank, in form and content satisfactory to Bank, within one hundred twenty (120)
days after the last day of each calendar year, a personal financial statement on
Dennis A. Bakal.
(d) Borrower shall keep adequate records and books of accounts, in which
complete entries will be made, reflecting all its financial transactions, and
shall maintain its books, accounts and records, including, without limitation,
all books and records evidencing or relating to Collateral, in accordance with
generally accepted accounting principles, at Borrower's chief executive office
as set forth in this Agreement, and shall not remove said books and records from
such address without the prior written consent of Bank.
(e) Borrower shall permit Bank or any persons duly designated by Bank to
call at the places of business of Borrower at any reasonable time, and without
hindrance or delay to visit, inspect, audit and check any of Borrower's
properties, books, records, journals, orders, receipts and any correspondence or
other data relating to Borrower's business or any other transactions between or
among the parties hereto, and to make copies thereof and take extracts
therefrom, and to discuss Borrower's financial affairs with Borrower's financial
officers and accountants.
(f) Borrower shall pay and discharge or cause to be paid and discharged
promptly all taxes, assessments, fees, withholdings and other governmental
charges or levies imposed upon it, or upon its income and profits, or upon any
property belonging to it, as well as all claims of any kind (including claims
for labor, materials and supplies), which, if unpaid, might by law become a lien
or charge against said property; provided, however, that Borrower shall not be
required to pay any such tax, assessment, fee, withholding, charge, levy or
claim if the amount, applicability or validity thereof shall currently be
contested in good faith by appropriate proceedings, and if it shall have either:
(i) set aside on its books reserves (segregated to the extent required by sound
accounting practice) deemed by Bank adequate with respect thereto, or (ii)
established a deposit with Bank sufficient to pay or discharge such tax,
assessment, fee, withholding, charge, levy or claim, if such proceedings are
adversely determined.
(g) Each corporate Borrower shall maintain its existence in good standing
in the state of its organization or incorporation, maintain its qualification to
conduct business and good standing in all jurisdictions where, under applicable
law, the failure so to qualify could have a material adverse effect on
8
<PAGE> 9
Borrower's business or its ability to perform the Loan Documents, and conduct
its business in the manner in which it is now conducted subject only to changes
made in the ordinary course of business.
(h) Borrower shall promptly, and in any event within five (5) business
days after it becomes aware thereof, notify Bank in writing of the occurrence of
any material adverse change in its or any Obligor's business, properties,
operations or conditions (financial or other) which could reasonably be expected
to impair materially its or such Obligor's ability to perform its or his
obligations pursuant to this Agreement, or any of the other Loan Documents, the
occurrence of any Event of Default or the occurrence of any pending or
threatened litigation claiming damages in excess of $25,000 or seeking relief
that, if granted, would adversely affect the financial condition or business
operations of Borrower or any Obligor.
(i) Borrower shall pay or cause to be paid the principal of, and, if any,
the interest and premium on all indebtedness heretofore or hereafter incurred or
assumed by it when and as the same shall become due and payable, unless such
indebtedness be renewed or extended; and faithfully observe, perform and
discharge all the covenants, conditions and obligations that are imposed upon it
by any and all indentures and other agreements securing or evidencing such
indebtedness or pursuant to which such indebtedness is issued, and not permit
the continuance of any act or omission that is, or pursuant to the provisions
thereof may be declared to be, a default in the payment of principal and
interest, unless waived, pursuant to the provisions thereof; provided, however,
that Borrower shall not be required to make any payment or to take any other
action pursuant to this subparagraph at any time while it shall be currently
contesting in good faith by appropriate proceedings its obligations to make such
a payment or to take such action, if it shall have either: (i) set aside on its
books, reserves (segregated to the extent required by sound accounting
practices) deemed adequate with respect thereto, or (ii) established a deposit
with Bank sufficient to pay any such amount if such proceedings are adversely
determined.
(j) Borrower shall take all appropriate action necessary to protect its
business and assets consistent with normal practices; conduct its business in a
sound and businesslike manner; and do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence and all of
its rights.
(k) Borrower shall pay or reimburse Bank for any reasonable out-of-pocket
expenses, including, without limitation, attorneys' fees, incurred by Bank in
preparing, negotiating, modifying or amending the Loan Documents.
(l) Borrower shall fund all of its "plans" (if any) to which the minimum
funding standards of Section 302 of ERISA apply in accordance with such
standards; furnish Bank, promptly upon Bank's request, copies of all reports or
other statements filed with, or received from, the United States Department of
Labor, the Internal Revenue Service, or the Pension Benefit Guaranty Corporation
with respect to all of Borrower's "plans"; and promptly advise Bank of the
occurrence of any "reportable event" or "prohibited transaction" with respect to
any such "plan" (as all quoted terms are defined in ERISA).
(m) Borrower shall comply with all applicable present and future local,
state and federal laws, including, without limitation, environmental laws and
regulations; notify Bank immediately if any "hazardous substance" (as defined in
CERCLA) is released, discharged, disposed of, stored, or discovered on any real
or personal property owned or leased by Borrower; notify Bank in writing within
three (3) days after Borrower receives notice from any governmental authority or
any individual or entity claiming violation of any environmental protection law
or regulation, or demanding compliance with any environmental protection law or
regulation, or demanding payment, indemnity, or contribution for any
environmental damage or injury to natural resources; and permit Bank from time
to time without hindrance or delay to observe Borrower's operations and to
perform tests (including soil tests and ground water tests) for "hazardous
substances" on any real or personal property owned or leased by Borrower.
9
<PAGE> 10
(n) Borrower shall maintain its principal transaction account with Bank.
(o) Dennis A. Bakal shall at all times maintain a senior management
position with each corporate Borrower or Obligor.
8. NEGATIVE COVENANTS. Borrower covenants and agrees that from and after
the date hereof, and so long as the Obligations remain unpaid or this Agreement
remains in effect, without the prior written consent of Bank, Borrower shall
not:
(a) Create, incur, assume, or suffer to exist any indebtedness of any
description whatsoever not existing as of the date of this Agreement, except (i)
indebtedness incurred under this Agreement, (ii) any trade indebtedness incurred
in the ordinary course of business payable within sixty (60) days of its
incurrence(or a reasonably longer period in the case of vehicle leases), (iii)
subordinated indebtedness in favor of Professional Sales Group, Ltd., a Georgia
corporation, an affiliate of Borrower, and (iv) loans between the parties
comprising Borrower.
(b) Enter into any merger, reorganization or consolidation; enter into a
partnership or joint venture with any other person or entity; make any
substantial change in the basic type of business now conducted by it; sell,
lease, transfer or otherwise dispose of all or any substantial portion of its
assets; take any action that would make it impossible for it to carry out its
business as now conducted; change its name; or change the location of its
principal place of business or chief executive office.
(c) Guarantee, endorse, become surety with respect to, or otherwise
become directly or contingently liable for or in connection with any obligation
or indebtedness of any other person or entity, except that Borrower may endorse
negotiable instruments for collection in the ordinary course of business; make
any loans, advances or extensions of credit to any person or entity, except for
travel advances made to employees in the ordinary course of business; make any
investments in any subsidiary or affiliate of any Obligor or any individual or
entity related to any Obligor; make any investments in or acquisitions of any
business enterprise.
(d) Allow any single judgment for the payment of money in excess of
$25,000.00 or of any number of judgments for the payment of money in excess of
the aggregate sum of $50,000.00, excluding amounts in either case with respect
to which an insurance carrier admits full coverage (except for applicable
deductibles), to remain unsatisfied against it for a period of thirty (30)
consecutive days, unless execution thereof is stayed.
(e) Pay any dividend on any of its capital stock in excess of fifty
percent (50%) of Borrower's net income for the applicable fiscal year (other
than dividends payable in capital stock of Borrower) or redeem, repurchase or
otherwise acquire or make any distribution of funds with respect to any of its
capital stock, nor will Borrower in any way amend its capital structure.
(f) Sell, transfer, lease, pledge, abandon, grant any lien on or security
interest in, or otherwise encumber or dispose of any of its properties or
assets, including without limitation the Collateral or any interest therein,
and, except for liens for taxes not yet due and payable, Borrower shall not
permit or suffer to exist any lien, security interest or other encumbrance on
any of its properties or assets.
(g) Take or fail to take any action which would result in the imposition
of withdrawal liability under Title IV of ERISA.
(h) Release, discharge, dispose of, store, accept or receive for storage
or disposal, or allow to be stored or disposed of, any "hazardous substance" (as
defined in CERCLA) on or in any real or personal
10
<PAGE> 11
property owned or leased by Borrower, except as otherwise expressly consented to
by Bank in writing; or release, discharge, use, transport, or dispose of any
"hazardous substance" in an unlawful manner.
9. FINANCIAL COVENANTS. Borrower covenants and agrees that from and after
the date hereof, and so long as the Obligations remain unpaid or this Agreement
remains in effect, that:
(a) Borrower's Tangible Net Worth, as shown on its financial statements,
shall at all times exceed Five Million Two Hundred Fifty Thousand and No/100
Dollars ($5,250,000.00) and shall increase on December 31 of each year
(commencing December 31, 1997) by fifty percent (50%) of Borrower's net income
for the applicable fiscal year.
(b) The ratio of Borrower's total liabilities to its Tangible Net Worth
shall be less than 3.0 : 1.0, measured at the end of each fiscal quarter.
(c) Borrower's Fixed Charge Coverage shall be greater than 1.15 : 1.0,
measured at Borrower's fiscal year end and calculated for the fiscal year then
ended.
(d) Borrower shall have a fiscal year to date cumulative net profit,
measured at December 31, 1997 and at each fiscal year end thereafter.
(e) The ratio of Borrower's current assets to its current liabilities
shall not be less than 1.2:1.0, as of the end of any fiscal quarter of Borrower.
10. RIGHTS AND REMEDIES EXCLUSIVE OF DEFAULT. Before or after the
occurrence of an Event of Default: Bank may examine, audit or inspect Borrower's
books and records constituting, evidencing or otherwise relating to the
Collateral, wherever located, at any reasonable time or times, and, without
hindrance or delay, may enter upon Borrower's premises for such purposes.
Borrower shall assist Bank in whatever way reasonably necessary to make each
such examination, audit and inspection. Bank, from time to time at its option,
may perform any agreement of Borrower hereunder which Borrower shall fail to
perform and take any other action which Bank deems necessary for the maintenance
or preservation of any of the Collateral or its interest therein, and Borrower
agrees to reimburse forthwith Bank for all reasonable costs and expenses of Bank
in connection with the foregoing, together with interest thereon from the date
incurred until reimbursed. Borrower hereby constitutes Bank or its designee as
its attorney-in-fact: to receive, open, and dispose of all mail addressed to the
Borrower; to notify the postal authorities to change the address and delivery of
mail addressed to the Borrower to such address as Bank may designate; to endorse
Borrower's name upon any notes, acceptances, checks, drafts, money orders and
other remittances that may come into Bank's possession and to deposit or
otherwise collect the same; to sign Borrower's name on any invoice or bill of
lading, on drafts against customers, and notices to customers; to send
verifications of accounts to customers; to execute in Borrower's name any
affidavits and notices with regard to any or all lien rights; and to do all
other acts and things necessary to carry out this Agreement. Borrower hereby
waives notice of presentment, protest and dishonor of any instrument so
endorsed. All acts of said attorney-in-fact or designee are hereby authorized
and ratified, and said attorney-in-fact or designee shall not be liable for any
acts of omission or commission, or for any error of judgment or mistake of fact
or law, unless resulting from Bank's gross negligence or intentional misconduct;
this power being coupled with an interest is irrevocable while the Obligations
remain outstanding.
11. RIGHTS AND REMEDIES UPON DEFAULT. Upon the occurrence of any one or
more Events of Default: Bank may terminate this Agreement and any obligations of
Bank to Borrower under any other agreement, document or instrument and may
declare the Obligations, notwithstanding any provisions thereof, without demand
or notice of any kind, immediately due and payable, whereupon the Obligations
shall become immediately due and payable and may be collected forthwith; Bank
shall have the right to take immediate possession of the Collateral without
notice or resort to legal process and without demand or notice of any
11
<PAGE> 12
kind to set off and deduct the outstanding balance of the Obligations from sums,
if any, which now or hereafter may be owing by Bank to Borrower; and Bank may
exercise from time to time any rights and remedies available to it under the
Uniform Commercial Code and other applicable law. Borrower agrees to pay all
costs of Bank of collection of the Obligations and enforcement of rights
hereunder, and, if collected by or through an attorney, fifteen percent (15%) of
the unpaid Obligations as attorneys' fees and also other legal and court
expenses. Notwithstanding anything stated to the contrary in this Agreement or
in any other instrument evidencing, securing, or otherwise relating to the
Obligations, prior to the occurrence of any NONMONETARY Event of Default and the
exercise of any remedy granted in the Loan Documents following a NONMONETARY
Event of Default, including, without limitation the right to accelerate the
maturity of the indebtedness evidenced by the Note and secured by any Security
Instrument, both of the following two (2) conditions shall have been satisfied:
(a) Borrower shall have received written notice of any event or condition which,
if not cured, will give rise to a NONMONETARY Event of Default ("default
condition") hereunder, which notice shall specify the default condition which
will result in a NONMONETARY Event of Default and set forth the requirements to
cure such default condition; and (b) Borrower shall have failed to cure such
default condition within ten (10) days following the receipt of said written
notice; PROVIDED, HOWEVER, THAT NO SUCH NOTICE SHALL BE REQUIRED AS TO ANY
MONETARY EVENT OF DEFAULT.
12. MISCELLANEOUS. (a) Each and every right, power or privilege granted
to Bank under the Loan Documents or available to Bank at law or in equity shall
be cumulative and may be exercised, and no delay in exercising any such right,
power or privilege shall impair any such right, power or privilege or be
construed as a waiver of any Event of Default or any acquiescence therein. All
rights, powers and privileges granted to Bank hereunder shall be cumulative, and
shall not be exclusive of any other rights, powers and privileges granted to
Bank by the Loan Documents or any other document, instrument or agreement, or
available at law or in equity. No single or partial exercise of any such right,
power or privilege shall preclude the further exercise of such right, power or
privilege or the exercise of any other right, power or privilege. No waiver by
Bank of any Event of Default hereunder shall constitute a waiver of any
subsequent Event of Default. No waiver shall be valid against Bank unless made
in writing and signed by Bank, and then only to the extent expressly specified
therein.
(b) All notices, demands and communications required or permitted
hereunder shall be deemed to have been sufficiently given or served for all
purposes if in a writing delivered personally to a party or to an officer of the
party to whom the same is directed, or if sent by first-class or certified mail,
postage and charges prepaid, addressed to such party at the following address,
or to such other address as shall be furnished in writing by any party to the
other pursuant to the provisions hereof:
If to Bank, to: SouthTrust Bank, N.A.
One Georgia Center, 22nd Floor
600 West Peachtree Street
Atlanta, Georgia 30308
Attn: Corporate Lending
If to Borrower, to: c/o Professional Transportation Group Ltd., Inc.
5025 Derrick Jones Road
Suite 120
Atlanta, Georgia 30349
Attn: Dennis A. Bakal
Any such notice shall be deemed given as of the date so delivered personally, or
three (3) days after the date on which the same was deposited, first-class or
certified postage prepaid, in a regularly maintained receptacle for the deposit
of United States Mail, addressed as aforesaid.
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<PAGE> 13
(c) This Agreement and the other Loan Documents shall be governed by and
construed and enforced in accordance with the substantive laws of the State of
Georgia, without regard to principles governing conflicts of law. BORROWER
HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE
STATE OF GEORGIA AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVES ANY
OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION
INSTITUTED IN ANY SUCH COURT AND AGREES THAT SERVICE OF PROCESS IN ANY SUCH
ACTION WILL BE SUFFICIENT IF SERVED ON BORROWER BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, OR IN ANY MANNER PROVIDED BY LAW. NOTWITHSTANDING THE
FOREGOING, BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST
BORROWER OR THE COLLATERAL IN THE COURTS OF ANY OTHER JURISDICTION BANK DEEMS
NECESSARY OR APPROPRIATE IN ORDER TO ENFORCE THE OBLIGATIONS OF BORROWER UNDER
THIS AGREEMENT OR THE RIGHTS OF BANK WITH RESPECT TO THE COLLATERAL.
(d) This Agreement shall inure to the benefit of Bank, its successors and
assigns, and to any person to whom Bank may grant an interest in the
Obligations, and shall be binding upon Borrower and its or his respective heirs,
personal representatives, executors, administrators, successors and assigns;
provided, however, that Borrower shall have no right to assign its rights or
obligations hereunder to any person or entity. Time is of the essence in the
payment and performance of every provision and covenant of this Agreement and
the other Loan Documents. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof or affecting the validity or enforceability of
such provisions in any other jurisdiction. This Agreement may not be amended or
modified, and Borrower shall not take any action herein prohibited, or omit to
perform any action required to be performed by it, unless Borrower shall obtain
the prior written consent of Bank to such amendment, modification, action or
omission to act, and no course of dealing between Borrower and Bank shall
operate as a waiver of any right, power or privilege granted under this
Agreement, under the other Loan Documents, or available at law or in equity.
This Agreement and the other Loan Documents contain the entire agreement between
Borrower and Bank regarding the Loan and the Collateral. Upon the execution and
delivery of this Agreement, the terms and conditions of any commitment letter
relating to the Loan shall be of no further force or effect. NO ORAL
REPRESENTATIONS OR STATEMENTS SHALL BE BINDING ON BANK, AND NO AGENT OF BANK HAS
THE AUTHORITY TO VARY THE TERMS OF THIS AGREEMENT, EXCEPT IN WRITING ON THE FACE
HEREOF OR ON A SEPARATE PAGE ATTACHED HERETO. If any provision of this Agreement
conflicts or is inconsistent with any provision of the Note, the provisions of
the Note shall control.
(e) Borrower, for itself, its heirs, personal representatives, executors,
administrators, successors and assigns, hereby agrees to indemnify and hold
harmless Bank and its affiliates, successors and assigns, and its stockholders,
officers, directors, employees, agents and attorneys from and against any and
all claims, demands, liabilities, losses, costs, expenses, damages, suits and
judgments (including, without limitation, liability under CERCLA, the Federal
Resource Conservation and Recovery Act, and other environmental laws and
regulations, and costs of defense and attorneys' fees) resulting from any
representation or warranty made by Borrower or on Borrower's behalf pursuant to
Section 7(m) of this Agreement having been false when made, or resulting from
Borrower's breach of any of the covenants set forth in Section 8(n) or Section
9(k) of this Agreement. This Agreement of indemnity shall be a continuing
agreement and shall survive payment of the Obligations and termination of the
other provisions of this Agreement.
13. BENEFIT TO GUARANTORS. In consideration for the execution and
delivery by the corporate Borrowers of that certain Guaranty of Payment and
Performance of even date herewith, Professional and Timely North agree to make
the benefit of all Loans hereunder available to the corporate Borrowers
(including, without limitation, each and every of the other Obligors). Borrower
acknowledges and agrees that each of the corporate Borrowers is under common
management and control and will benefit directly and materially by the extension
of the Loans hereunder.
14. AMENDMENT AND RESTATEMENT. This Agreement is an amendment and
restatement of, and replaces in its entirety, that certain Commercial Loan
Agreement dated March 28, 1997, by and among Dennis A. Bakal,
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<PAGE> 14
a Georgia resident, Professional Transportation Group, Ltd., a Georgia
corporation, Truck/Net, Inc., a Georgia corporation, Timely Transportation,
Inc., a Georgia corporation, PTG, Inc., a Georgia corporation, and SouthTrust
Bank of Georgia, N.A., a national banking association.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized representatives on or as of the
date first above written.
BORROWER:
PROFESSIONAL TRANSPORTATION GROUP LTD., INC., a Georgia corporatio
By: /s/Dennis A. Bakal
----------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
TRUCK-NET, INC., a Georgia corporatio
By: /s/Dennis A. Bakal
----------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
TIMELY TRANSPORTATION, INC., a Georgia corporatio
By: /s/Dennis A. Bakal
----------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
PTG, INC., a Georgia corporatio
By: /s/Dennis A. Bakal
----------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
TIMELY NORTH, INC., a Georgia corporatio
By: /s/Dennis A. Bakal
----------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
14
<PAGE> 15
BANK:
SOUTHTRUST BANK, N.A., a national banking association
By: /s/Barbara A. Gewert
--------------------------------------------------
Barbara A. Gewert, Vice President
15
<PAGE> 1
EXHIBIT 10.2
COMMERCIAL REVOLVING NOTE
(Working Capital Line of Credit)
$5,000,000.00 Atlanta, Georgia November 19, 1997
FOR VALUE RECEIVED, the undersigned TIMELY NORTH, INC., a Georgia
corporation (hereinafter referred to as "Maker"), promises to pay to the order
of SOUTHTRUST BANK, N.A., a national banking association (hereinafter referred
to as "Payee"; Payee and any subsequent holder of this Note being referred to
collectively as "Holder"), at any office of Payee in Atlanta, Georgia, or at
such other place as Holder may designate, the principal amount of Five Million
and No/100 Dollars ($5,000,000.00), or such lesser amount as may be outstanding
and unpaid hereunder, together with interest on so much thereof as is
outstanding hereunder from time to time at the rate stated below from the date
of this Note (or other interest accrual date shown below) until maturity, and at
the rate of interest which is two percent (2%) per annum in excess of the rate
stated below after maturity, said principal and interest to be due and payable
as stated below.
INTEREST RATE. Interest will accrue on each advance made under this
Note at a rate per annum which is two hundred seventy-five (275) basis points
(one hundred [100] basis points equals one percent [1%]) plus the "Libor Rate"
(hereinafter referred to as the "Floating Rate") and shall be computed on the
daily outstanding principal balance hereunder based on a three hundred sixty
(360) day year. "Libor Rate," as used herein, means a per annum rate of interest
(rounded upwards, if necessary, to the nearest 1/16th of one percent) equal to
the quotient of (i) the "London Interbank Offered Rate (LIBOR)" for contracts
with a maturity date of ninety (90) days, as quoted in the MONEY RATES section
of The Wall Street Journal as effective for contracts entered into on the first
day of the applicable interest period, divided by (ii) 1.00 minus any reserve
requirement applicable to "eurodollar loans" (as such term is defined in
Regulation D) for the applicable interest period (expressed as a decimal). If at
any time or from time to time such Libor Rate increases or decreases, then the
rate of interest charged shall be correspondingly increased or decreased
effective on the day on which such increase or decrease of such Libor Rate
becomes effective.
PAYMENT SCHEDULE. Principal and interest shall be due and payable as
follows: Interest only on the outstanding principal amount shall be due and
payable monthly, in arrears, beginning on December 1, 1997, and continuing on
the first day of each month thereafter until maturity. On April 30, 1998, all
unpaid principal, plus accrued and unpaid interest, shall be due and payable in
full.
INTEREST ACCRUAL. Interest shall accrue daily on the unpaid principal
amount of this Note and will be calculated at the rate stated above on the basis
of a 360-day year and the actual days elapsed by multiplying the unpaid
principal amount by the per annum rate stated above, multiplying the product
thereof by the actual number of days elapsed, and dividing the product so
obtained by 360.
REBORROWINGS. Until the earlier of maturity of this Note, or the
occurrence of any event giving Holder the right to accelerate the maturity of
this Note as provided below, or written or oral notice to Maker of Holder's
election to terminate the line of credit (which notice Holder may give at its
reasonable discretion), Maker may borrow hereunder, repay the principal amount
in whole or in part upon the terms and conditions set forth herein, and reborrow
hereunder, so long as the aggregate unpaid principal amount of such advances
does not exceed the principal amount of this Note at any time. To the extent
permitted by law, any accrued interest not paid when due as set forth above may
at Holder's discretion be paid by Holder providing an advance hereunder in the
amount of such unpaid interest, or if the outstanding principal balance under
this Note would not permit such advance, the unpaid interest shall be added to
the principal balance due hereunder. Any such advance or principal amount shall
accrue interest at the rate provided for herein.
SECURITY. As security for the full payment and performance of this
Note, Maker hereby assigns, conveys, and grants a security interest to Holder in
all property in which Maker has an interest which is in or comes into the
possession, control or custody of Holder, all property in which Maker has
heretofore granted or hereafter grants to Holder a security interest to secure
any obligation, and all property of Maker in which Holder has acquired or
hereafter otherwise acquires a lien, encumbrance or other right (including, but
not limited to, balances, credits, deposits, accounts and monies). Maker hereby
agrees that Holder may, at any time and without notice, apply any
<PAGE> 2
balances, credits, deposits, accounts, monies or other indebtedness now or
hereafter owing by Holder to Maker in satisfaction of any indebtedness evidenced
by this Note whether or not due.
FINANCIAL STATEMENTS. Maker agrees, for so long as there is any amount
outstanding under this Note or Maker is entitled to request advances hereunder,
to provide Holder financial statements and other information of or concerning
Maker and any other Obligor (as hereinafter defined), in such detail, of such
quality (i.e., audited, reviewed, unaudited or otherwise), and with such
frequency and timeliness as Holder may reasonably request from time to time. All
financial statements required by Holder as set forth above shall be prepared in
accordance with generally accepted accounting principles (except for the absence
of footnotes with respect to monthly and quarterly financial statements) and
shall fairly present the financial condition and results of operations of the
Obligor specified as of the end of and for the period covered thereby.
USE OF PROCEEDS. Maker represents and agrees that the proceeds of the
loan evidenced by this Note shall be used solely for business purposes and shall
not be used for any personal, family, household, consumer or other purpose.
LATE CHARGE. If any payment of the principal amount outstanding under
this Note is late ten (10) days or more, in addition to interest after maturity
as provided above, Maker agrees to pay a late charge equal to one-half of one
percent (1/2%) of the amount of the payment which is late, subject to a minimum
late charge of $5.00 and a maximum late charge of $250.00 for any one payment as
compensation for administrative and other costs associated with the late payment
as set forth below.
MAXIMUM RATE OF INTEREST. If, at any time, the rate or amount of
interest, late charges, attorneys' fees or any other charge payable under this
Note should exceed the maximum rate or amount permitted by applicable law, then
for such time as such rate or amount would be excessive, its application shall
be suspended and there shall be charged instead the maximum rate or amount
permitted under such law, and any excess interest or other charge paid by Maker
or collected by Holder shall be refunded to Maker or credited against the
principal amount of this Note, at the election of Holder or as required by
applicable law. Maker agrees that the late charge provided in this Note is a
reasonable estimate of probable additional unanticipated internal costs to
Holder of reporting and accounting for the late payment, that such costs are
difficult or impossible to estimate accurately, and that the agreement to pay a
late charge is a reasonable liquidated damages provision.
DEFAULT. The following shall constitute events of default under this
Note: a failure of Maker (Maker and each other person primarily or secondarily
liable to Holder for the indebtedness evidenced by this Note hereinafter
collectively referred to as "Obligors") to make any payment of principal or
interest or any other amount under this Note when due or failure of Maker to
perform or observe any promise or agreement contained in this Note; the death of
(if an individual), death of a general partner (if a partnership), or
dissolution of (if a partnership or corporation), insolvency of, general
assignment for the benefit of creditors by, any Obligor; the commencement of a
voluntary proceeding under any law relating to bankruptcy, insolvency,
reorganization, arrangement, composition or readjustment of debt, dissolution,
liquidation or debtor relief law or statute of any jurisdiction, whether now or
hereafter in effect, including without limitation the filing of a petition under
any chapter of the Federal Bankruptcy Code, as amended, by or against, or
acquiescence in writing to same by, or failure to timely and diligently
controvert any such involuntary proceeding by, any Obligor; the filing of a
proceeding for the appointment of a receiver, custodian, trustee, liquidator or
similar official for Obligor or Obligor's property or consenting to the
appointment of same; the failure of an involuntary petition for relief under the
federal bankruptcy code to be dismissed within thirty (30) days after the
commencement thereof or in which an order for relief is entered; the making by
any Obligor of a conveyance fraudulent as to creditors under any state or
federal law; entry of any judgment against, or issuance of a levy or writ of
execution, attachment or garnishment against any of the property of, any
Obligor; the inability of any Obligor to pay debts as they become due or admit
in writing to such effect; the transfer by any Obligor of all or substantially
all of his, her or its assets outside the ordinary course of business, or the
waste, loss or dissipation of a substantial part of such person's assets; if any
Obligor is a partnership, the withdrawal or removal of any general partner of
such partnership; if any Obligor is a corporation, the transfer, directly or
indirectly (including through any voting trust, irrevocable proxy, or the like),
of the ownership or power to vote more than thirty percent (30%) of the voting
stock of such corporation; the suspension of the operation of any Obligor's
present business; the occurrence of any default or event authorizing
acceleration as provided under any promissory note or other evidence of debt,
loan agreement, security agreement, pledge agreement, assignment, mortgage, deed
to secure debt, deed of trust, lease agreement or other agreement or contract
between any Obligor and Holder or any third party; any statement, representation
or warranty of any Obligor made orally or
2
<PAGE> 3
in writing in any document evidencing, securing or otherwise relating to the
indebtedness evidenced by this Note or in any other writing or statement at any
time furnished or made by any Obligor to Holder is false or misleading in a
material respect as of the date furnished or made; revocation or termination of
any guaranty executed in favor of Holder guaranteeing the indebtedness evidenced
by this Note; the financial responsibility of any Obligor becomes impaired at
any time in the sole reasonable opinion of Holder; or, the reasonable
determination by Holder that it otherwise deems itself to be insecure.
REMEDIES. If this Note is payable on demand, all of the principal
amount outstanding hereunder and all accrued but unpaid interest thereon shall
be due and payable in full upon demand by Holder, whether or not any event of
default described below has occurred and whether or not Holder reasonably deems
itself to be insecure. If any event of default under this Note should occur, all
unpaid amounts of any or all of the principal amount outstanding hereunder and
all accrued but unpaid interest thereon shall, at the option of Holder and
without notice or demand, become immediately due and payable and Holder shall
have and be entitled to exercise, from time to time, all the rights and remedies
available to it as provided elsewhere in this Note, in any other agreement or
contract between Maker and Holder and under applicable law. All of Holder's
rights and remedies shall be cumulative, and any failure of Holder to exercise
any such right or remedy shall not be construed as a waiver of the right to
exercise the same or any other right or remedy at any time and from time to time
thereafter.
WAIVER. With respect to the obligations of Maker under this Note, to
the extent permitted by applicable law, Maker waives the following: (1) demand,
presentment, protest, notice of dishonor, suit against any party and all other
requirements necessary to charge or hold Maker liable on this Note; (2) all
statutory provisions and requirements for the benefit of Maker (including notice
requirements), now or hereafter in force (except to the extent provided for in
any other contract or agreement between Maker and Holder); and (3) the right to
interpose any set-off or counterclaim of any nature or description in any
litigation in which Holder and any Maker shall be adverse parties.
NOTICES. Any and all notices, elections, demands, requests and
responses thereto permitted or required to be given under this Note shall be in
writing, signed by or on behalf of the party giving the same, and shall be
deemed to have been properly given and shall be effective upon being personally
delivered, or three (3) days after being deposited in the United States mail,
postage prepaid, certified with return receipt requested, to Maker if mailed to
the address set forth above Maker's name at the end of this Note and to Holder
at the address set forth in the beginning of this Note or at such other address
within the continental United States for either party as such party may
designate by notice to the other given in accordance with the provisions of this
paragraph; provided, however, that the time period in which a response to any
such notice, election, demand or request must be given shall commence on the
date of receipt thereof; and provided further that no notice of change of
address shall be effective until the date of receipt thereof. Personal delivery
to a party or to any officer, partner, agent or employee of such party at said
address shall constitute receipt. Rejection or other refusal to accept or
inability to deliver because of a changed address of which no notice has been
received shall also constitute receipt.
EXPENSES AND COLLECTION COSTS. Maker agrees to pay all filing fees and
taxes in connection with this Note and all costs of collecting or securing or
attempting to collect or secure any of the indebtedness evidenced by this Note,
including, without limitation, court costs, litigation expenses and reasonable
attorneys' fees, and all accrued but unpaid interest thereon, if this Note is
referred to an attorney for collection. If attorneys' fees in such amount would
be prohibited by applicable law, then Maker agrees to pay reasonable attorneys'
fees not to exceed the maximum amount allowed by law.
PARTICIPATION OF NOTE. Maker understands that Holder may enter into
participation agreements with participating institutions whereby Holder will
sell undivided interest in this Note to such other institutions. Maker agrees
that Holder may furnish information regarding Maker, including financial
information, to such institutions from time to time and also to prospective
participating institutions in order that such institutions may make an informed
decision whether to purchase a participation in this Note. Maker hereby grants
to each such participating institution, to the extent of its participation in
this Note, the right to set off deposit accounts maintained by Maker, or any of
them, with such institution, against unpaid amounts owed under this Note. Upon
written request from Holder, Maker agrees to make each payment under this Note
directly to each such participating institution in proportion to the
participant's interest in this Note as set forth in such request from Holder.
MISCELLANEOUS. No delay by Holder in enforcing its rights hereunder
shall prejudice Holder's rights to enforce this Note. No waiver by Holder shall
be effective unless made in writing by a duly authorized officer or
3
<PAGE> 4
agent of Holder, and no waiver by Holder of any right or remedy shall constitute
a waiver of any other or future right or remedy. This Note shall inure to the
benefit of Holder, its successors and assigns, and to any person to whom Holder
may grant an interest in any of the indebtedness evidenced hereby, and shall be
binding upon Maker, and his, her, its, or their respective heirs, executors,
administrators, successors and assigns. Maker, if more than one, includes each
person executing this Note, who are jointly and severally liable for all
obligations of Maker under this Note, and each Maker has subscribed its name
hereto without condition that anyone else should sign or become bound hereon and
without any other condition whatever being made. Holder may release any Obligor
or renew or extend the maturity hereof without affecting any obligations of any
other Obligor to repay the principal amount outstanding hereunder and all
accrued but unpaid interest. THIS NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
CONSENT TO JURISDICTION. MAKER HEREBY CONSENTS TO THE JURISDICTION OF
ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF GEORGIA, AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON
CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED IN ANY SUCH COURT AND AGREES
THAT PROCESS IN ANY SUCH ACTION WILL BE SUFFICIENT IF SERVED ON MAKER BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED OR IN ANY MANNER PROVIDED BY LAW.
NOTWITHSTANDING THE FOREGOING, HOLDER SHALL HAVE THE RIGHT TO BRING ANY ACTION
OR PROCEEDING AGAINST MAKER OR MAKER'S PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION HOLDER DEEMS NECESSARY OR APPROPRIATE IN ORDER TO ENFORCE THE
OBLIGATIONS OF MAKER UNDER THIS NOTE.
HEADINGS. The headings of the paragraphs set forth in this Note are for
convenience of reference only, and are not to be considered a part hereof and
shall not limit or otherwise affect any of the terms hereof.
TIME OF ESSENCE. Time is of the essence of the payment and performance
of this Note.
IN WITNESS WHEREOF, Maker has executed this Note under seal, or has
caused this Note to be executed by its duly authorized agent and its seal to be
affixed hereto, as of the date first above written.
ADDRESS OF 5025 DERRICK JONES ROAD
MAKER: SUITE 120
ATLANTA, GEORGIA 30349
MAKER:
TIMELY NORTH, INC., a Georgia corporation
By: /s/Dennis A. Bakal
- -----------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
4
<PAGE> 1
EXHIBIT 10.3
COMMERCIAL PROMISSORY NOTE
(Capital Expenditure Line of Credit/Term Loan)
$3,700,000.00 Atlanta, Georgia November 19, 1997
FOR VALUE RECEIVED, the undersigned PROFESSIONAL TRANSPORTATION GROUP LTD.,
INC., a Georgia corporation (hereinafter referred to as "Maker"), promises to
pay to the order of SOUTHTRUST BANK, N.A., a national banking association
(hereinafter referred to as "Payee"; Payee and any subsequent holder of this
Note being referred to collectively as "Holder"), at any office of Payee in
Atlanta, Georgia, or at such other place as Holder may designate, the principal
amount of Three Million Seven Hundred Thousand and No/100 Dollars
($3,700,000.00), or such lesser amount as may be outstanding and unpaid
hereunder, together with interest on so much thereof as is outstanding hereunder
from time to time at the rate stated below from the date of this Note (or other
interest accrual date shown below) until maturity, and at the rate of interest
which is two percent (2%) per annum in excess of the rate stated below after
maturity, said principal and interest to be due and payable as stated below.
INTEREST RATE AND PAYMENT SCHEDULE. From and after the date hereof
until April 30, 1998 (the "Conversion Date"), or default as hereinafter
provided, interest will accrue on each advance made under this Note at a rate
per annum which is two hundred fifty (250) basis points (one hundred [100] basis
points equals one percent [1%]) plus the "Libor Rate" (hereinafter referred to
as the "Floating Rate") and shall be computed on the daily outstanding principal
balance hereunder based on a three hundred sixty (360) day year. "Libor Rate,"
as used herein, means a per annum rate of interest (rounded upwards, if
necessary, to the nearest 1/16th of one percent) equal to the quotient of (i)
the "London Interbank Offered Rate (LIBOR)" for contracts with a maturity date
of ninety (90) days, as quoted in the MONEY RATES section of The Wall Street
Journal as effective for contracts entered into on the first day of the
applicable interest period, divided by (ii) 1.00 minus any reserve requirement
applicable to "eurodollar loans" (as such term is defined in Regulation D) for
the applicable interest period (expressed as a decimal). If at any time or from
time to time such Libor Rate increases or decreases, then the rate of interest
charged shall be correspondingly increased or decreased effective on the day on
which such increase or decrease of such Libor Rate becomes effective. From and
after the Conversion Date, interest shall continue to be charged at the Floating
Rate unless Maker notifies Holder no later than April 15, 1998 that it has
elected to have interest charged at a fixed rate per annum which is two hundred
seventy-five (275) basis points (100 basis points equals 1%) in excess of the
weekly average yield on United States Treasury Securities having a constant
maturity of five (5) years as made available by the Federal Reserve Board as of
the Conversion Date (hereinafter referred to as the "Fixed Rate"), in which
event interest shall accrue at the Fixed Rate from and after the Conversion
Date. If the Treasury Rate is no longer made available by the Federal Reserve
Board, Holder will choose a new index which is based upon comparable information
and will give Maker notice of the new index. Interest so computed shall accrue
for each and every day (365 days per year, 366 days per leap year) on which any
indebtedness remains outstanding hereunder, including the day on which funds are
initially advanced regardless of the time of day such advance is made, and
including the day on which funds are repaid unless repayment is credited prior
to 2:00 p.m., the close of Payee's business day.
Interest only on the outstanding principal amount shall be due and
payable monthly, in arrears, beginning on December 1, 1997, and continuing on
the first (1st) day of each month thereafter through and including April 1,
1998. Commencing on May 1, 1998, and continuing on the first (1st) day of each
month through and including April 1, 2003, principal and interest shall be due
and payable as follows:
(a) If Maker elects for interest to continue to accrue at the
Floating Rate, (i) principal shall be due in fifty-nine (59) equal
monthly installments of principal in the amount equal to the quotient
resulting from dividing the outstanding principal balance hereof on the
Conversion Date by eighty-four (84), together with (ii) accrued and
unpaid interest at the Floating Rate; or
<PAGE> 2
(b) If Maker elects for interest to accrue at the Fixed Rate,
principal and interest shall be due and payable in consecutive, equal
monthly installments of principal and interest, the amount of each
monthly installment being calculated by amortizing the outstanding
principal balance hereof on the Conversion Date over an eighty-four
(84) month term at the Fixed Rate.
At least ten (10) days before the due date of the first installment
after the Conversion Date, Holder will give notice to Maker of the Fixed Rate
(if elected by Maker) and the amount of each payment of principal and interest
that will be due hereunder. On May 1, 2003, all unpaid principal, plus accrued
and unpaid interest, shall be due and payable in full.
INTEREST ACCRUAL. Interest shall accrue daily on the unpaid principal
amount of this Note and will be calculated at the rate stated above on the basis
of a 360-day year and the actual days elapsed by multiplying the unpaid
principal amount by the per annum rate stated above, multiplying the product
thereof by the actual number of days elapsed, and dividing the product so
obtained by 360.
REBORROWINGS. Until the earlier of the Conversion Date or the
occurrence of any event giving Holder the right to accelerate the maturity of
this Note as provided below, or written or oral notice to Maker of Holder's
election to terminate the line of credit (which notice Holder may give at its
reasonable discretion), Maker may borrow hereunder, repay the principal amount
in whole or in part upon the terms and conditions set forth herein, and reborrow
hereunder, so long as the aggregate unpaid principal amount of such advances
does not exceed the principal amount of this Note at any time. To the extent
permitted by law, any accrued interest not paid when due as set forth above may
at Holder's discretion be paid by Holder providing an advance hereunder in the
amount of such unpaid interest, or if the outstanding principal balance under
this Note would not permit such advance, the unpaid interest shall be added to
the principal balance due hereunder. Any such advance or principal amount shall
accrue interest at the rate provided for herein.
SECURITY. As security for the full payment and performance of this
Note, Maker hereby assigns, conveys, and grants a security interest to Holder in
all property in which Maker has an interest which is in or comes into the
possession, control or custody of Holder, all property in which Maker has
heretofore granted or hereafter grants to Holder a security interest to secure
any obligation, and all property of Maker in which Holder has acquired or
hereafter otherwise acquires a lien, encumbrance or other right (including, but
not limited to, balances, credits, deposits, accounts and monies). Maker hereby
agrees that Holder may, at any time and without notice, apply any balances,
credits, deposits, accounts, monies or other indebtedness now or hereafter owing
by Holder to Maker in satisfaction of any indebtedness evidenced by this Note
whether or not due.
FINANCIAL STATEMENTS. Maker agrees, for so long as there is any amount
outstanding under this Note or Maker is entitled to request advances hereunder,
to provide Holder financial statements and other information of or concerning
Maker and any other Obligor (as hereinafter defined), in such detail, of such
quality (i.e., audited, reviewed, unaudited or otherwise), and with such
frequency and timeliness as Holder may reasonably request from time to time. All
financial statements required by Holder as set forth above shall be prepared in
accordance with generally accepted accounting principles (except for the absence
of footnotes with respect to monthly and quarterly financial statements) and
shall fairly present the financial condition and results of operations of the
Obligor specified as of the end of and for the period covered thereby.
USE OF PROCEEDS. Maker represents and agrees that the proceeds of the
loan evidenced by this Note shall be used solely for business purposes and shall
not be used for any personal, family, household, consumer or other purpose.
LATE CHARGE. If any payment of the principal amount outstanding under
this Note is late ten (10) days or more, in addition to interest after maturity
as provided above, Maker agrees to pay a late charge equal to one-half of one
percent (1/2%) of the amount of the payment which is late, subject to a minimum
late charge of $5.00 and a maximum late charge of $250.00 for any one payment as
compensation for administrative and other costs associated with the late payment
as set forth below.
2
<PAGE> 3
MAXIMUM RATE OF INTEREST. If, at any time, the rate or amount of
interest, late charges, attorneys' fees or any other charge payable under this
Note should exceed the maximum rate or amount permitted by applicable law, then
for such time as such rate or amount would be excessive, its application shall
be suspended and there shall be charged instead the maximum rate or amount
permitted under such law, and any excess interest or other charge paid by Maker
or collected by Holder shall be refunded to Maker or credited against the
principal amount of this Note, at the election of Holder or as required by
applicable law. Maker agrees that the late charge provided in this Note is a
reasonable estimate of probable additional unanticipated internal costs to
Holder of reporting and accounting for the late payment, that such costs are
difficult or impossible to estimate accurately, and that the agreement to pay a
late charge is a reasonable liquidated damages provision.
DEFAULT. The following shall constitute events of default under this
Note: a failure of Maker (Maker and each other person primarily or secondarily
liable to Holder for the indebtedness evidenced by this Note hereinafter
collectively referred to as "Obligors") to make any payment of principal or
interest or any other amount under this Note when due or failure of Maker to
perform or observe any promise or agreement contained in this Note; the death of
(if an individual), death of a general partner (if a partnership), or
dissolution of (if a partnership or corporation), insolvency of, general
assignment for the benefit of creditors by, any Obligor; the commencement of a
voluntary proceeding under any law relating to bankruptcy, insolvency,
reorganization, arrangement, composition or readjustment of debt, dissolution,
liquidation or debtor relief law or statute of any jurisdiction, whether now or
hereafter in effect, including without limitation the filing of a petition under
any chapter of the Federal Bankruptcy Code, as amended, by or against, or
acquiescence in writing to same by, or failure to timely and diligently
controvert any such involuntary proceeding by, any Obligor; the filing of a
proceeding for the appointment of a receiver, custodian, trustee, liquidator or
similar official for Obligor or Obligor's property or consenting to the
appointment of same; the failure of an involuntary petition for relief under the
federal bankruptcy code to be dismissed within thirty (30) days after the
commencement thereof or in which an order for relief is entered; the making by
any Obligor of a conveyance fraudulent as to creditors under any state or
federal law; entry of any judgment against, or issuance of a levy or writ of
execution, attachment or garnishment against any of the property of, any
Obligor; the inability of any Obligor to pay debts as they become due or admit
in writing to such effect; the transfer by any Obligor of all or substantially
all of his, her or its assets outside the ordinary course of business, or the
waste, loss or dissipation of a substantial part of such person's assets; if any
Obligor is a partnership, the withdrawal or removal of any general partner of
such partnership; if any Obligor is a corporation, the transfer, directly or
indirectly (including through any voting trust, irrevocable proxy, or the like),
of the ownership or power to vote more than thirty percent (30%) of the voting
stock of such corporation; the suspension of the operation of any Obligor's
present business; the occurrence of any default or event authorizing
acceleration as provided under any promissory note or other evidence of debt,
loan agreement, security agreement, pledge agreement, assignment, mortgage, deed
to secure debt, deed of trust, lease agreement or other agreement or contract
between any Obligor and Holder or any third party; any statement, representation
or warranty of any Obligor made orally or in writing in any document evidencing,
securing or otherwise relating to the indebtedness evidenced by this Note or in
any other writing or statement at any time furnished or made by any Obligor to
Holder is false or misleading in a material respect as of the date furnished or
made; revocation or termination of any guaranty executed in favor of Holder
guaranteeing the indebtedness evidenced by this Note; the financial
responsibility of any Obligor becomes impaired at any time in the sole
reasonable opinion of Holder; or, the reasonable determination by Holder that it
otherwise deems itself to be insecure.
REMEDIES. If this Note is payable on demand, all of the principal
amount outstanding hereunder and all accrued but unpaid interest thereon shall
be due and payable in full upon demand by Holder, whether or not any event of
default described below has occurred and whether or not Holder reasonably deems
itself to be insecure. If any event of default under this Note should occur, all
unpaid amounts of any or all of the principal amount outstanding hereunder and
all accrued but unpaid interest thereon shall, at the option of Holder and
without notice or demand, become immediately due and payable and Holder shall
have and be entitled to exercise, from time to time, all the rights and remedies
available to it as provided elsewhere in this Note, in any other agreement or
contract between Maker and Holder and under applicable law. All of Holder's
rights and remedies shall be cumulative, and any failure of Holder to exercise
any such right or remedy shall not be construed as a waiver of the right to
exercise the same or any other right or remedy at any time and from time to time
thereafter.
3
<PAGE> 4
WAIVER. With respect to the obligations of Maker under this Note, to
the extent permitted by applicable law, Maker waives the following: (1) demand,
presentment, protest, notice of dishonor, suit against any party and all other
requirements necessary to charge or hold Maker liable on this Note; (2) all
statutory provisions and requirements for the benefit of Maker (including notice
requirements), now or hereafter in force (except to the extent provided for in
any other contract or agreement between Maker and Holder); and (3) the right to
interpose any set-off or counterclaim of any nature or description in any
litigation in which Holder and any Maker shall be adverse parties.
NOTICES. Any and all notices, elections, demands, requests and
responses thereto permitted or required to be given under this Note shall be in
writing, signed by or on behalf of the party giving the same, and shall be
deemed to have been properly given and shall be effective upon being personally
delivered, or three (3) days after being deposited in the United States mail,
postage prepaid, certified with return receipt requested, to Maker if mailed to
the address set forth above Maker's name at the end of this Note and to Holder
at the address set forth in the beginning of this Note or at such other address
within the continental United States for either party as such party may
designate by notice to the other given in accordance with the provisions of this
paragraph; provided, however, that the time period in which a response to any
such notice, election, demand or request must be given shall commence on the
date of receipt thereof; and provided further that no notice of change of
address shall be effective until the date of receipt thereof. Personal delivery
to a party or to any officer, partner, agent or employee of such party at said
address shall constitute receipt. Rejection or other refusal to accept or
inability to deliver because of a changed address of which no notice has been
received shall also constitute receipt.
EXPENSES AND COLLECTION COSTS. Maker agrees to pay all filing fees and
taxes in connection with this Note and all costs of collecting or securing or
attempting to collect or secure any of the indebtedness evidenced by this Note,
including, without limitation, court costs, litigation expenses and reasonable
attorneys' fees, and all accrued but unpaid interest thereon, if this Note is
referred to an attorney for collection. If attorneys' fees in such amount would
be prohibited by applicable law, then Maker agrees to pay reasonable attorneys'
fees not to exceed the maximum amount allowed by law.
PARTICIPATION OF NOTE. Maker understands that Holder may enter into
participation agreements with participating institutions whereby Holder will
sell undivided interest in this Note to such other institutions. Maker agrees
that Holder may furnish information regarding Maker, including financial
information, to such institutions from time to time and also to prospective
participating institutions in order that such institutions may make an informed
decision whether to purchase a participation in this Note. Maker hereby grants
to each such participating institution, to the extent of its participation in
this Note, the right to set off deposit accounts maintained by Maker, or any of
them, with such institution, against unpaid amounts owed under this Note. Upon
written request from Holder, Maker agrees to make each payment under this Note
directly to each such participating institution in proportion to the
participant's interest in this Note as set forth in such request from Holder.
MISCELLANEOUS. No delay by Holder in enforcing its rights hereunder
shall prejudice Holder's rights to enforce this Note. No waiver by Holder shall
be effective unless made in writing by a duly authorized officer or agent of
Holder, and no waiver by Holder of any right or remedy shall constitute a waiver
of any other or future right or remedy. This Note shall inure to the benefit of
Holder, its successors and assigns, and to any person to whom Holder may grant
an interest in any of the indebtedness evidenced hereby, and shall be binding
upon Maker, and his, her, its, or their respective heirs, executors,
administrators, successors and assigns. Maker, if more than one, includes each
person executing this Note, who are jointly and severally liable for all
obligations of Maker under this Note, and each Maker has subscribed its name
hereto without condition that anyone else should sign or become bound hereon and
without any other condition whatever being made. Holder may release any Obligor
or renew or extend the maturity hereof without affecting any obligations of any
other Obligor to repay the principal amount outstanding hereunder and all
accrued but unpaid interest. THIS NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
4
<PAGE> 5
CONSENT TO JURISDICTION. MAKER HEREBY CONSENTS TO THE JURISDICTION OF
ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF GEORGIA, AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON
CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED IN ANY SUCH COURT AND AGREES
THAT PROCESS IN ANY SUCH ACTION WILL BE SUFFICIENT IF SERVED ON MAKER BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED OR IN ANY MANNER PROVIDED BY LAW.
NOTWITHSTANDING THE FOREGOING, HOLDER SHALL HAVE THE RIGHT TO BRING ANY ACTION
OR PROCEEDING AGAINST MAKER OR MAKER'S PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION HOLDER DEEMS NECESSARY OR APPROPRIATE IN ORDER TO ENFORCE THE
OBLIGATIONS OF MAKER UNDER THIS NOTE.
HEADINGS. The headings of the paragraphs set forth in this Note are for
convenience of reference only, and are not to be considered a part hereof and
shall not limit or otherwise affect any of the terms hereof.
TIME OF ESSENCE. Time is of the essence of the payment and performance
of this Note.
IN WITNESS WHEREOF, Maker has executed this Note under seal, or has
caused this Note to be executed by its duly authorized agent and its seal to be
affixed hereto, as of the date first above written.
ADDRESS OF 5025 DERRICK JONES ROAD
MAKER: SUITE 120
ATLANTA, GEORGIA 30349
MAKER:
PROFESSIONAL TRANSPORTATION GROUP LTD., INC.,
a Georgia corporation
By: /s/Dennis A. Bakal
----------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
5
<PAGE> 1
EXHIBIT 10.4
COMMERCIAL REVOLVING NOTE
(Working Capital Line of Credit)
$2,000,000.00 Atlanta, Georgia November 19, 1997
FOR VALUE RECEIVED, the undersigned PROFESSIONAL TRANSPORTATION GROUP LTD.,
INC., a Georgia corporation (hereinafter referred to as "Maker"), promises to
pay to the order of SOUTHTRUST BANK, N.A., a national banking association
(hereinafter referred to as "Payee"; Payee and any subsequent holder of this
Note being referred to collectively as "Holder"), at any office of Payee in
Atlanta, Georgia, or at such other place as Holder may designate, the principal
amount of Two Million and No/100 Dollars ($2,000,000.00), or such lesser amount
as may be outstanding and unpaid hereunder, together with interest on so much
thereof as is outstanding hereunder from time to time at the rate stated below
from the date of this Note (or other interest accrual date shown below) until
maturity, and at the rate of interest which is two percent (2%) per annum in
excess of the rate stated below after maturity, said principal and interest to
be due and payable as stated below.
INTEREST RATE. Interest will accrue on each advance made under this
Note at a rate per annum which is two hundred fifty (250) basis points (one
hundred [100] basis points equals one percent [1%]) plus the "Libor Rate"
(hereinafter referred to as the "Floating Rate") and shall be computed on the
daily outstanding principal balance hereunder based on a three hundred sixty
(360) day year. "Libor Rate," as used herein, means a per annum rate of interest
(rounded upwards, if necessary, to the nearest 1/16th of one percent) equal to
the quotient of (i) the "London Interbank Offered Rate (LIBOR)" for contracts
with a maturity date of ninety (90) days, as quoted in the MONEY RATES section
of The Wall Street Journal as effective for contracts entered into on the first
day of the applicable interest period, divided by (ii) 1.00 minus any reserve
requirement applicable to "eurodollar loans" (as such term is defined in
Regulation D) for the applicable interest period (expressed as a decimal). If at
any time or from time to time such Libor Rate increases or decreases, then the
rate of interest charged shall be correspondingly increased or decreased
effective on the day on which such increase or decrease of such Libor Rate
becomes effective.
PAYMENT SCHEDULE. Principal and interest shall be due and payable as
follows: Interest only on the outstanding principal amount shall be due and
payable monthly, in arrears, beginning on December 1, 1997, and continuing on
the first day of each month thereafter until maturity. On April 30, 1998, all
unpaid principal, plus accrued and unpaid interest, shall be due and payable in
full.
INTEREST ACCRUAL. Interest shall accrue daily on the unpaid principal
amount of this Note and will be calculated at the rate stated above on the basis
of a 360-day year and the actual days elapsed by multiplying the unpaid
principal amount by the per annum rate stated above, multiplying the product
thereof by the actual number of days elapsed, and dividing the product so
obtained by 360.
REBORROWINGS. Until the earlier of maturity of this Note, or the
occurrence of any event giving Holder the right to accelerate the maturity of
this Note as provided below, or written or oral notice to Maker of Holder's
election to terminate the line of credit (which notice Holder may give at its
reasonable discretion), Maker may borrow hereunder, repay the principal amount
in whole or in part upon the terms and conditions set forth herein, and reborrow
hereunder, so long as the aggregate unpaid principal amount of such advances
does not exceed the principal amount of this Note at any time. To the extent
permitted by law, any accrued interest not paid when due as set forth above may
at Holder's discretion be paid by Holder providing an advance hereunder in the
amount of such unpaid interest, or if the outstanding principal balance under
this Note would not permit such advance, the unpaid interest shall be added to
the principal balance due hereunder. Any such advance or principal amount shall
accrue interest at the rate provided for herein.
SECURITY. As security for the full payment and performance of this
Note, Maker hereby assigns, conveys, and grants a security interest to Holder in
all property in which Maker has an interest which is in or comes into the
possession, control or custody of Holder, all property in which Maker has
heretofore granted or hereafter grants to Holder a security interest to secure
any obligation, and all property of Maker in which Holder has acquired or
hereafter otherwise acquires a lien, encumbrance or other right (including, but
not limited to, balances, credits, deposits, accounts and monies). Maker hereby
agrees that Holder may, at any time and without notice, apply any
<PAGE> 2
balances, credits, deposits, accounts, monies or other indebtedness now or
hereafter owing by Holder to Maker in satisfaction of any indebtedness evidenced
by this Note whether or not due.
FINANCIAL STATEMENTS. Maker agrees, for so long as there is any amount
outstanding under this Note or Maker is entitled to request advances hereunder,
to provide Holder financial statements and other information of or concerning
Maker and any other Obligor (as hereinafter defined), in such detail, of such
quality (i.e., audited, reviewed, unaudited or otherwise), and with such
frequency and timeliness as Holder may reasonably request from time to time. All
financial statements required by Holder as set forth above shall be prepared in
accordance with generally accepted accounting principles (except for the absence
of footnotes with respect to monthly and quarterly financial statements) and
shall fairly present the financial condition and results of operations of the
Obligor specified as of the end of and for the period covered thereby.
USE OF PROCEEDS. Maker represents and agrees that the proceeds of the
loan evidenced by this Note shall be used solely for business purposes and shall
not be used for any personal, family, household, consumer or other purpose.
LATE CHARGE. If any payment of the principal amount outstanding under
this Note is late ten (10) days or more, in addition to interest after maturity
as provided above, Maker agrees to pay a late charge equal to one-half of one
percent (1/2%) of the amount of the payment which is late, subject to a minimum
late charge of $5.00 and a maximum late charge of $250.00 for any one payment as
compensation for administrative and other costs associated with the late payment
as set forth below.
MAXIMUM RATE OF INTEREST. If, at any time, the rate or amount of
interest, late charges, attorneys' fees or any other charge payable under this
Note should exceed the maximum rate or amount permitted by applicable law, then
for such time as such rate or amount would be excessive, its application shall
be suspended and there shall be charged instead the maximum rate or amount
permitted under such law, and any excess interest or other charge paid by Maker
or collected by Holder shall be refunded to Maker or credited against the
principal amount of this Note, at the election of Holder or as required by
applicable law. Maker agrees that the late charge provided in this Note is a
reasonable estimate of probable additional unanticipated internal costs to
Holder of reporting and accounting for the late payment, that such costs are
difficult or impossible to estimate accurately, and that the agreement to pay a
late charge is a reasonable liquidated damages provision.
DEFAULT. The following shall constitute events of default under this
Note: a failure of Maker (Maker and each other person primarily or secondarily
liable to Holder for the indebtedness evidenced by this Note hereinafter
collectively referred to as "Obligors") to make any payment of principal or
interest or any other amount under this Note when due or failure of Maker to
perform or observe any promise or agreement contained in this Note; the death of
(if an individual), death of a general partner (if a partnership), or
dissolution of (if a partnership or corporation), insolvency of, general
assignment for the benefit of creditors by, any Obligor; the commencement of a
voluntary proceeding under any law relating to bankruptcy, insolvency,
reorganization, arrangement, composition or readjustment of debt, dissolution,
liquidation or debtor relief law or statute of any jurisdiction, whether now or
hereafter in effect, including without limitation the filing of a petition under
any chapter of the Federal Bankruptcy Code, as amended, by or against, or
acquiescence in writing to same by, or failure to timely and diligently
controvert any such involuntary proceeding by, any Obligor; the filing of a
proceeding for the appointment of a receiver, custodian, trustee, liquidator or
similar official for Obligor or Obligor's property or consenting to the
appointment of same; the failure of an involuntary petition for relief under the
federal bankruptcy code to be dismissed within thirty (30) days after the
commencement thereof or in which an order for relief is entered; the making by
any Obligor of a conveyance fraudulent as to creditors under any state or
federal law; entry of any judgment against, or issuance of a levy or writ of
execution, attachment or garnishment against any of the property of, any
Obligor; the inability of any Obligor to pay debts as they become due or admit
in writing to such effect; the transfer by any Obligor of all or substantially
all of his, her or its assets outside the ordinary course of business, or the
waste, loss or dissipation of a substantial part of such person's assets; if any
Obligor is a partnership, the withdrawal or removal of any general partner of
such partnership; if any Obligor is a corporation, the transfer, directly or
indirectly (including through any voting trust, irrevocable proxy, or the like),
of the ownership or power to vote more than thirty percent (30%) of the voting
stock of such corporation; the suspension of the operation of any Obligor's
present business; the occurrence of any default or event authorizing
acceleration as provided under any promissory note or other evidence of debt,
loan agreement, security agreement, pledge agreement, assignment, mortgage, deed
to secure debt, deed of trust, lease agreement or other agreement or contract
between
2
<PAGE> 3
any Obligor and Holder or any third party; any statement, representation or
warranty of any Obligor made orally or in writing in any document evidencing,
securing or otherwise relating to the indebtedness evidenced by this Note or in
any other writing or statement at any time furnished or made by any Obligor to
Holder is false or misleading in a material respect as of the date furnished or
made; revocation or termination of any guaranty executed in favor of Holder
guaranteeing the indebtedness evidenced by this Note; the financial
responsibility of any Obligor becomes impaired at any time in the sole
reasonable opinion of Holder; or, the reasonable determination by Holder that it
otherwise deems itself to be insecure.
REMEDIES. If this Note is payable on demand, all of the principal
amount outstanding hereunder and all accrued but unpaid interest thereon shall
be due and payable in full upon demand by Holder, whether or not any event of
default described below has occurred and whether or not Holder reasonably deems
itself to be insecure. If any event of default under this Note should occur, all
unpaid amounts of any or all of the principal amount outstanding hereunder and
all accrued but unpaid interest thereon shall, at the option of Holder and
without notice or demand, become immediately due and payable and Holder shall
have and be entitled to exercise, from time to time, all the rights and remedies
available to it as provided elsewhere in this Note, in any other agreement or
contract between Maker and Holder and under applicable law. All of Holder's
rights and remedies shall be cumulative, and any failure of Holder to exercise
any such right or remedy shall not be construed as a waiver of the right to
exercise the same or any other right or remedy at any time and from time to time
thereafter.
WAIVER. With respect to the obligations of Maker under this Note, to
the extent permitted by applicable law, Maker waives the following: (1) demand,
presentment, protest, notice of dishonor, suit against any party and all other
requirements necessary to charge or hold Maker liable on this Note; (2) all
statutory provisions and requirements for the benefit of Maker (including notice
requirements), now or hereafter in force (except to the extent provided for in
any other contract or agreement between Maker and Holder); and (3) the right to
interpose any set-off or counterclaim of any nature or description in any
litigation in which Holder and any Maker shall be adverse parties.
NOTICES. Any and all notices, elections, demands, requests and
responses thereto permitted or required to be given under this Note shall be in
writing, signed by or on behalf of the party giving the same, and shall be
deemed to have been properly given and shall be effective upon being personally
delivered, or three (3) days after being deposited in the United States mail,
postage prepaid, certified with return receipt requested, to Maker if mailed to
the address set forth above Maker's name at the end of this Note and to Holder
at the address set forth in the beginning of this Note or at such other address
within the continental United States for either party as such party may
designate by notice to the other given in accordance with the provisions of this
paragraph; provided, however, that the time period in which a response to any
such notice, election, demand or request must be given shall commence on the
date of receipt thereof; and provided further that no notice of change of
address shall be effective until the date of receipt thereof. Personal delivery
to a party or to any officer, partner, agent or employee of such party at said
address shall constitute receipt. Rejection or other refusal to accept or
inability to deliver because of a changed address of which no notice has been
received shall also constitute receipt.
EXPENSES AND COLLECTION COSTS. Maker agrees to pay all filing fees and
taxes in connection with this Note and all costs of collecting or securing or
attempting to collect or secure any of the indebtedness evidenced by this Note,
including, without limitation, court costs, litigation expenses and reasonable
attorneys' fees, and all accrued but unpaid interest thereon, if this Note is
referred to an attorney for collection. If attorneys' fees in such amount would
be prohibited by applicable law, then Maker agrees to pay reasonable attorneys'
fees not to exceed the maximum amount allowed by law.
PARTICIPATION OF NOTE. Maker understands that Holder may enter into
participation agreements with participating institutions whereby Holder will
sell undivided interest in this Note to such other institutions. Maker agrees
that Holder may furnish information regarding Maker, including financial
information, to such institutions from time to time and also to prospective
participating institutions in order that such institutions may make an informed
decision whether to purchase a participation in this Note. Maker hereby grants
to each such participating institution, to the extent of its participation in
this Note, the right to set off deposit accounts maintained by Maker, or any of
them, with such institution, against unpaid amounts owed under this Note. Upon
written request from Holder, Maker agrees to make each payment under this Note
directly to each such participating institution in proportion to the
participant's interest in this Note as set forth in such request from Holder.
3
<PAGE> 4
MISCELLANEOUS. No delay by Holder in enforcing its rights hereunder
shall prejudice Holder's rights to enforce this Note. No waiver by Holder shall
be effective unless made in writing by a duly authorized officer or agent of
Holder, and no waiver by Holder of any right or remedy shall constitute a waiver
of any other or future right or remedy. This Note shall inure to the benefit of
Holder, its successors and assigns, and to any person to whom Holder may grant
an interest in any of the indebtedness evidenced hereby, and shall be binding
upon Maker, and his, her, its, or their respective heirs, executors,
administrators, successors and assigns. Maker, if more than one, includes each
person executing this Note, who are jointly and severally liable for all
obligations of Maker under this Note, and each Maker has subscribed its name
hereto without condition that anyone else should sign or become bound hereon and
without any other condition whatever being made. Holder may release any Obligor
or renew or extend the maturity hereof without affecting any obligations of any
other Obligor to repay the principal amount outstanding hereunder and all
accrued but unpaid interest. THIS NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
CONSENT TO JURISDICTION. MAKER HEREBY CONSENTS TO THE JURISDICTION OF
ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF GEORGIA, AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON
CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED IN ANY SUCH COURT AND AGREES
THAT PROCESS IN ANY SUCH ACTION WILL BE SUFFICIENT IF SERVED ON MAKER BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED OR IN ANY MANNER PROVIDED BY LAW.
NOTWITHSTANDING THE FOREGOING, HOLDER SHALL HAVE THE RIGHT TO BRING ANY ACTION
OR PROCEEDING AGAINST MAKER OR MAKER'S PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION HOLDER DEEMS NECESSARY OR APPROPRIATE IN ORDER TO ENFORCE THE
OBLIGATIONS OF MAKER UNDER THIS NOTE.
HEADINGS. The headings of the paragraphs set forth in this Note are for
convenience of reference only, and are not to be considered a part hereof and
shall not limit or otherwise affect any of the terms hereof.
TIME OF ESSENCE. Time is of the essence of the payment and performance
of this Note.
REPLACEMENT NOTE. THIS NOTE IS A REPLACEMENT OF THAT CERTAIN COMMERCIAL
REVOLVING NOTE DATED MARCH 28, 1997, MADE BY DENNIS A. BAKAL TO THE ORDER OF
SOUTHTRUST BANK OF GEORGIA, N.A. (NOW KNOWN AS SOUTHTRUST BANK, N.A.) IN THE
ORIGINAL PRINCIPAL AMOUNT OF ONE MILLION NINE HUNDRED FIFTEEN THOUSAND AND
NO/100 DOLLARS ($1,915,000.00).
IN WITNESS WHEREOF, Maker has executed this Note under seal, or has
caused this Note to be executed by its duly authorized agent and its seal to be
affixed hereto, as of the date first above written.
ADDRESS OF 5025 DERRICK JONES ROAD
MAKER: SUITE 120
ATLANTA, GEORGIA 30349
MAKER:
PROFESSIONAL TRANSPORTATION GROUP LTD., INC.,
a Georgia corporation
By: /s/Dennis A. Bakal
----------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
4
<PAGE> 1
EXHIBIT 10.5
AMENDED AND RESTATED
GENERAL SECURITY AGREEMENT
THIS AMENDED AND RESTATED GENERAL SECURITY AGREEMENT ("Agreement"),
dated as of November 19, 1997, is made by the undersigned PROFESSIONAL
TRANSPORTATION GROUP LTD., INC., a Georgia corporation, TRUCK-NET, INC., a
Georgia corporation, TIMELY TRANSPORTATION, INC., a Georgia corporation, PTG,
INC., a Georgia corporation, and TIMELY NORTH, INC., a Georgia corporation
(hereinafter collectively referred to as "Debtor"), with SOUTHTRUST BANK, N.A.,
a national banking association ("Secured Party").
W I T N E S S E T H:
FOR VALUE RECEIVED, and in consideration of loans, extensions of credit
or other financial accommodations previously, now or hereafter made by Secured
Party to Debtor or which are otherwise to the direct interest and benefit of
Debtor, Debtor hereby agrees with Secured Party as follows:
1. SECURITY INTEREST. As security for the full and prompt payment
and performance of the Secured Obligations (as hereinafter defined), Debtor
hereby grants, bargains, sells, conveys, assigns and sets over to Secured Party,
and grants to Secured Party a security interest in, the following property and
rights of Debtor:
A. (Inventory and Documents) all inventory of Debtor, whether now owned
or hereafter acquired by Debtor and wherever
located, including, without limitation, all
goods, merchandise, raw materials, work in
process, finished goods, and other tangible
personal property held for sale or lease or
furnished under contracts of service or used
or consumed in Debtor's business and all
returned, reclaimed and repossessed goods
(collectively, the "Inventory"), together
with all documents now or hereafter
representing any such Inventory
(collectively, the "Documents"), and all
proceeds and products of the foregoing.
B. (Accounts) all accounts, contract rights, instruments
and chattel paper whether arising from the
sale of Inventory or the rendering of
services by Debtor or otherwise and whether
now owned or hereafter acquired by Debtor
and whether now existing or hereafter
arising and all returned, reclaimed and
repossessed goods (collectively, the
"Accounts"), together with all books and
records relating to such Accounts, and all
proceeds of the foregoing.
C. (Intangibles) all general intangibles of Debtor, whether
now owned or hereafter acquired by Debtor,
including, without limitation, any goodwill,
choses in action, causes of action, literary
rights, rights to performance, confidential
information, purchase orders, trade secrets,
trademarks, service marks, patents,
copyrights, inventions and other proprietary
information (collectively, the
"Intangibles"), together with all books and
records relating to such Intangibles, and
all proceeds of the foregoing.
D. (Equipment) all equipment of Debtor, whether now owned
or hereafter acquired by Debtor and wherever
located, including, without limitation, all
machinery, computer equipment and
peripherals, furniture, furnishings, and
motor vehicles, and all replacements thereof
and substitutes therefor, and all
accessories, additions, attachments and
other goods now or hereafter installed in or
affixed thereto or used in connection
therewith (collectively, the "Equipment"),
together with all warranties and service
contracts relating to such Equipment, and
all proceeds of the foregoing. The term
"Equipment," as used in this Agreement, also
includes fixtures, including leasehold
improvements and machinery and appliances
which are attached to real property in such
a manner as to become fixtures
(collectively, the "Fixtures").
<PAGE> 2
(All of the property and rights described in paragraphs A, B, C and D above, as
applicable, are sometimes hereinafter collectively referred to as the
"Collateral.")
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR. Debtor
covenants, represents and warrants to Secured Party that:
(a) Each entity comprising Debtor is duly organized, existing and in
good standing under the laws of the state of its incorporation and is duly
qualified and in good standing in every other state in which the nature of its
business or the ownership of its properties makes qualification necessary
(except where the failure to be so qualified would not have a material adverse
effect on Debtor taken as a whole), and the execution, delivery and performance
of this Agreement are within Debtor's corporate powers, have been duly
authorized, are not in contravention of any law, judgment, order, writ or decree
of any court or governmental authority or the terms of Debtor's certificate of
incorporation, by-laws or other incorporation papers, or of any agreement or
undertaking to which Debtor is a party or by which Debtor or its property is
bound.
(b) Debtor agrees to make all records concerning or constituting the
Collateral available to Secured Party, its agents, attorneys and accountants,
upon request at any reasonable time and without hindrance or delay, and to allow
Secured Party to inspect, audit, check or make copies or extracts of such
records.
(c) Except as otherwise noted in a schedule attached to this Agreement,
Debtor is the owner of the Collateral, free and clear of all security interests,
liens and encumbrances other than the security interest granted to Secured Party
herein, and has the full right and power to transfer the Collateral to Secured
Party and to grant to Secured Party a security interest therein. Except as
expressly authorized hereunder, Debtor will not sell, transfer, assign or convey
any of the Collateral or any interest therein, nor create any other security
interest therein, nor permit any financing statement other than that of Secured
Party's to be filed in any public office with respect thereto (except as
otherwise expressly agreed in writing by Secured Party), nor permit either
Debtor's or Secured Party's rights therein to be reached by attachment, levy,
garnishment or other judicial process.
(d) Debtor will pay promptly when due all taxes, charges and
assessments upon the Collateral or any part thereof, the use or operation of the
Collateral, the proceeds thereof, this Agreement and any note evidencing the
Secured Obligations. At its option, Secured Party may discharge any taxes,
liens, security interests or other encumbrances or any item levied or placed on
the Collateral or any part thereof, but Secured Party shall not be under any
duty to exercise any such authority. Debtor agrees to reimburse Secured Party,
upon demand, for any payment made by Secured Party pursuant to the foregoing
authorization.
(e) Debtor shall bear the risk of loss of, damage to, or destruction of
the Collateral, whether in possession of Debtor, Secured Party or a third party.
Secured Party shall be deemed to have exercised reasonable care in the custody
and preservation of the Collateral in its possession if Secured Party takes such
action for that purpose as Debtor shall reasonably request in writing, but no
omission on the part of Secured Party to take any action, whether or not
requested by Debtor, shall of itself be deemed a failure to exercise reasonable
care.
(f) Debtor shall do, make, execute and deliver to Secured Party all
such additional acts, things, assignments, assurances, and instruments as
Secured Party may require to vest completely in Secured Party its rights
hereunder and in or to the Collateral. At the request of Secured Party, Debtor
will execute financing statements as provided for under the Uniform Commercial
Code in form satisfactory to Secured Party and will pay the cost of filing the
same in all public offices where filing is deemed by Secured Party to be
necessary or desirable. Debtor agrees that a carbon or photostatic copy of this
Agreement may be filed as a financing statement in any public office. If
certificates of title are now or hereafter issued or outstanding with respect to
any of the Collateral, Debtor will cause the interest of Secured Party to be
properly noted thereon at Debtor's expense. Debtor will deliver all instruments,
documents and chattel paper which constitute a part of the Collateral to Secured
Party upon request, duly endorsed by Debtor to the order of Secured Party or in
blank, in each case, in form satisfactory to Secured Party. Secured Party may
elect not to perfect its security interest in all or any part of the Collateral
without impairing its rights against Debtor or any other party.
2
<PAGE> 3
(g) Debtor hereby irrevocably makes, constitutes and appoints Secured
Party and any of its officers or designees as Debtor's true and lawful
attorney-in-fact with full power and authority to do any and all acts necessary
or proper to carry out the intent of this Agreement, including, without
limitation, the right, power and authority (i) to receive and give receipt for
any amount or amounts due or to become due to Debtor with respect to the
Collateral and to endorse and negotiate in the name of Debtor any check or other
item issued in payment or on account thereof, and in the name of Secured Party
or of Debtor to enforce by suit, compromise, settle, discharge, extend the time
of payment, file claims or otherwise participate in bankruptcy proceedings, and
deal in and with Collateral and any proceeds thereof; (ii) to open mail
addressed to Debtor, remove any Collateral or proceeds of Collateral therefrom,
and deliver the remainder of such mail to Debtor; (iii) to do all acts and
things deemed by Secured Party to be appropriate to protect, preserve and
realize upon the Collateral; and (iv) to obtain, adjust, settle, or cancel any
insurance carried with respect to the Collateral and to endorse in Debtor's name
and give receipts for checks and drafts issued in payment of losses and as
return premiums with respect to any such insurance, but Secured Party shall not
be under any duty to exercise any such authority or power or in any way be
responsible for collecting or realizing upon the Collateral. Debtor hereby
ratifies and confirms all that Secured Party, its officers or designees, shall
do as such attorney-in-fact by virtue of the foregoing powers, which powers are
coupled with an interest and are irrevocable until this Agreement has been
terminated as hereinafter provided. Secured Party shall not be liable for any
act or omission which Secured Party, its officers or designees shall take or
fail to take pursuant to the foregoing powers.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS RELATING TO INVENTORY.
Debtor further agrees with Secured Party as follows:
(a) Debtor will allow Secured Party and any of its officers, agents,
attorneys or accountants to examine or inspect the Inventory wherever located at
all reasonable times.
(b) Debtor will keep the Inventory in good condition and will not waste
or destroy any of the same. If Debtor should fail to take appropriate steps, as
determined by Secured Party, to maintain the Inventory in good condition,
Secured Party, at its option, may take such steps and expend such funds as it
deems necessary for the preservation of the Inventory. Debtor agrees to
reimburse Secured Party on demand for any sums spent by Secured Party with
respect to the maintenance of the Inventory.
(c) Until the occurrence of an event of default hereunder, Debtor may
use the Inventory in any lawful manner consistent with Debtor's customary
business, provided that such use is not inconsistent with this Agreement or with
the terms or conditions of any policy of insurance thereon, and Debtor may sell
the Inventory in the ordinary course of business. A sale in the ordinary course
of business does not include a return to a vendor for credit or other transfer
in partial or total satisfaction of a debt. Until the occurrence of event of
default, Debtor may also use and consume any raw materials or supplies, the use
and consumption of which is necessary in order to carry on Debtor's customary
business.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS RELATING TO ACCOUNTS.
Debtor hereby further agrees with Secured Party as follows:
(a) Each Account owing to Debtor, and all names of all account debtors,
amounts owing, due dates, and other facts appearing on Debtor's records relating
thereto, are true, correct and genuine and are what they purport to be, and each
such Account arises out of a bona fide sale of goods or other property sold and
delivered to, or out of services rendered by Debtor to, the account debtors so
indicated, and the amount of each such debt is unconditionally owed to Debtor by
each such account debtor, except for normal cash discounts, and is not subject
to any offset, credit, deduction, or counterclaim, and Debtor is the sole owner
thereof.
(b) The address of Debtor's chief executive office and principal place
of business is the address shown above Debtor's signature at the end of this
Agreement. Debtor agrees not to change the address of Debtor's chief executive
office without giving at least fifteen (15) days prior written notice to Secured
Party.
(c) Secured Party shall have the right at any time upon ten (10) days
prior notice to Debtor, whether before or after the occurrence of a default
hereunder by Debtor, to notify any or all account debtors or obligors on the
Accounts to make payment directly to Secured Party, or to make payment to an
address (a
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<PAGE> 4
"lockbox") under the exclusive control of Secured Party. Upon request of Secured
Party, Debtor agrees immediately to notify any or all account debtors and
obligors to make payment directly to Secured Party or to such lockbox and to
place Secured Party's or such lockbox's address on Debtor's invoices and
statements as the address to which payment should be made. To the extent Secured
Party does not so elect to notify, or does not request Debtor to notify, the
account debtor or obligors, Debtor shall continue to collect such Accounts.
Debtor agrees not to commingle any proceeds of any of the Accounts with any of
Debtor's own funds, goods or property, and at all times to hold such proceeds in
trust for Secured Party until delivery thereof is made to Secured Party. Debtor
agrees to deliver all proceeds of the Accounts in precisely the form received by
Debtor, with the endorsement of Debtor if requested by Secured Party. Secured
Party may apply such proceeds to any of the Secured Obligations, whether or not
such Secured Obligations have matured by their terms, or Secured Party may, at
its option, release such proceeds to Debtor for use in Debtor's business.
Secured Party need not apply nor give credit for any item included in such
proceeds until Secured Party has received final payment therefor at its offices
in cash or cash equivalents acceptable to Secured Party.
(d) Weekly, monthly, or at such other intervals as Secured Party shall
designate, Debtor agrees to deliver to Secured Party lists and agings of all
Accounts in such form, and in such detail, as Secured Party shall require,
together with copies of invoices, delivery receipts, bills of lading and such
other documents in support of or relating to Accounts as Secured Party shall
require.
(e) If any of the Accounts arise out of contracts with the United
States or any agency thereof, Debtor agrees to notify Secured Party thereof and
to execute such documents as shall be necessary to permit Secured Party to
perfect its right to receive payment under the Federal Assignment of Claims Act.
(f) Debtor will promptly notify Secured Party in writing in the event
the account debtor on any Account refuses to accept or returns any goods which
are the subject of the Account, and of the bankruptcy, insolvency, or cessation
of business of or by any such account debtor, and of any claim asserted against
Debtor for credit allowances, adjustments, offsets or counterclaims by any such
account debtor;
(g) Upon the reasonable request of Secured Party, Debtor will purchase
insurance covering the loss of, and cost of reconstruction of, Debtor's records
of its Accounts and all books and records relating thereto, such insurance to be
issued by an insurer acceptable to Secured Party and to contain such coverage
provisions as Secured Party shall request.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS RELATING TO INVENTORY AND
EQUIPMENT. Debtor agrees with Secured Party as follows:
(a) Debtor's Inventory and Equipment, as applicable, are kept or stored
only at the address shown above Debtor's signature at the end of this Agreement
and at the following addresses:
- ------------------- -------------------- --------------------
- ------------------- -------------------- --------------------
- ------------------- -------------------- --------------------
- ------------------- -------------------- --------------------
(Failure to list any address where Inventory or Equipment are kept shall not
limit or affect Secured Party's security interest therein.)
Debtor agrees not to keep or store any Inventory or Equipment, as applicable, at
any address other than those set forth above without giving at least fifteen
(15) days prior written notice to Secured Party.
(b) Debtor agrees not to sell or otherwise dispose of any Equipment, as
applicable, except worn out or obsolete Equipment which is immediately replaced
with other Equipment of equivalent function and of equal or greater value (and
if a motor vehicle, upon which the security interest of Secured Party has been
properly noted on the certificate of title therefor). As used herein, "dispose"
shall not include the return by Debtor to any lessor of leased vehicles at the
end of the lease.
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<PAGE> 5
(c) All Inventory, if applicable, is and will be produced in
compliance with the Federal Fair Labor Standards Act.
(d) Debtor will maintain insurance at all times with respect to all
Inventory and/or Equipment, as applicable, against risk of fire (including
so-called extended coverage), theft, water damage and such other risks as
Secured Party may require from time to time and, in the case of motor vehicles,
against risk of collision and vandalism, in such amounts, in such form, for such
perils, and written by companies as may be reasonably satisfactory to Secured
Party. Secured Party shall be named as loss payee under such policies of
insurance. Debtor may furnish such insurance through an existing policy or a
policy independently obtained and paid for by Debtor. All policies of insurance
shall provide for a minimum of ten (10) days prior written notice to Secured
Party before cancellation. At request of Secured Party, Debtor will deliver such
policies, or at Secured Party's option, certificates thereof, to Secured Party
to be held by it. Debtor hereby assigns all insurance policies at any time
covering any Inventory, Equipment, Specific Equipment or Farm Products, as
applicable, and all return or unearned premiums thereunder to Secured Party as
additional collateral for the Secured Obligations. Secured Party in its
discretion may apply any proceeds of such insurance to the payment of the
Secured Obligations, whether or not due, in such order of application as Secured
Party may elect, or may release such proceeds to Debtor for use in purchasing
other Inventory and/or Equipment, as applicable, as a replacement for any loss
thereof. In the event Debtor fails to provide any insurance as required herein,
Secured Party may, at its option, purchase such insurance or, at Secured Party's
option and after ten (10) days' prior written notice to Debtor, Secured Party
may purchase insurance covering only Secured Party's interest in the Inventory
and/or Equipment, as applicable. Debtor agrees to reimburse Secured Party on
demand for the cost of such insurance.
(e) Upon request of Secured Party at any time, Debtor will deliver to
Secured Party lists or copies of all Accounts which are proceeds of Inventory or
Equipment, as applicable, promptly after they arise. Unless Secured Party shall
have otherwise agreed with Debtor in writing, Debtor will deliver to Secured
Party, promptly upon receipt, all proceeds (except goods) of the Inventory or
Equipment, as applicable, received by Debtor, including proceeds of such
Accounts, in precisely the form received by Debtor, with the endorsement of
Debtor if requested by Secured Party. Debtor agrees not to commingle any
proceeds of such Collateral with any of Debtor's own funds, goods or property,
and at all times to hold such proceeds upon express trust for Secured Party
until delivery thereof is made to Secured Party. To evidence Secured Party's
rights hereunder, Debtor will assign or endorse proceeds to Secured Party in
such form as Secured Party may request and Secured Party shall have the full
power and authority to collect, compromise, endorse, sell or otherwise deal with
proceeds in its own name or that of Debtor. Secured Party in its discretion may
apply cash proceeds to the payment of any of the Secured Obligations, whether or
not due, in the order of application as Secured Party may elect, or may release
such cash proceeds to Debtor for use in the operation of Debtor's business.
6. WAIVERS OF DEBTOR. Debtor hereby expressly waives:
(a) notice of acceptance of this Agreement;
(b) notice of the existence or creation of any or all of the Secured
Obligations;
(c) notice of any default, nonpayment, partial payment, presentment,
demand and all other notices which Debtor may be entitled to whatsoever;
(d) any invalidity or disability in whole or in part with respect to
any Collateral, at the time of its acceptance or at any other time, as well
as with respect to the liability of any Obligor;
(e) the fact that the Collateral or any part thereof may at any time
or from time to time be incorrectly estimated or deteriorate in value for
any cause whatsoever;
(f) all diligence in collection or protection of or realization upon
the Collateral, the Secured Obligations, or any part thereof, or any
security for any of the foregoing;
(g) any duty or obligation on the part of Secured Party to ascertain
the extent or nature of the Collateral, or any part thereof, or the
liability of Obligor, as well as any duty or obligation on the part of
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<PAGE> 6
Secured Party to take any steps or actions to safeguard, protect, deal
with, handle, obtain or convey information with respect to the Collateral
or any part thereof; and
(h) any right to require Secured Party to proceed against any Obligor,
if Debtor is not the same as Obligor, as set forth in Section 10-7-24 of
the Official Code of Georgia.
- --------------------------------------------------------------------------------
DEBTOR HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS DEBTOR MAY HAVE TO NOTICE
PRIOR TO THE SEIZURE OF THE COLLATERAL. THIS WAIVER IS GIVEN BY DEBTOR TO
SECURED PARTY IN ACCORDANCE WITH SECTION 44-14-263 OF THE OFFICIAL CODE OF
GEORGIA IN ORDER TO ELIMINATE THE REQUIREMENT THAT SECURED PARTY FURNISH A BOND
SHOULD SECURED PARTY SEEK AN IMMEDIATE WRIT OF POSSESSION.
/S/DENNIS A. BAKAL
- -----------------------------
SIGNATURE ON BEHALF OF DEBTOR
- --------------------------------------------------------------------------------
7. EXPENDITURES. All sums expended by Secured Party for which Debtor is
obligated to reimburse Secured Party under this Agreement shall bear interest
from the date the expenditure is made until the date paid at the rate provided
in any promissory note evidencing the Secured Obligation with respect to which
the sum was expended by Secured Party, or if no single such promissory note
exists or is identifiable, then at the rate which is two (2) percentage points
in excess of the rate of interest per annum announced by Secured Party from time
to time as its base rate of interest as of the date such expenditure was made.
8. DEFAULT. Any or all of the Secured Obligations shall, at the option of
Secured Party and notwithstanding the stated maturity date of any instrument
evidencing any such Secured Obligations, become immediately due and payable,
without notice or demand, except as specifically provided in any such
investment, upon the occurrence of any of the following events, each of which
shall constitute an event of default hereunder:
(a) The failure of any Obligor to pay or perform as and when due any
of the Secured Obligations;
(b) The failure of Debtor to pay or perform as and when due any
covenant or agreement contained in this Agreement or if any warranty or
representation made or any writing furnished to Secured Party by or on behalf of
Debtor in or in connection with this Agreement is breached or is false or
inaccurate in any material respect when made or furnished;
(c) Loss, theft, damage, or destruction of any material part of the
Collateral, or any levy, seizure, garnishment or attachment thereof or thereon;
(d) The death of (if an individual), or dissolution of (if a
partnership or corporation), insolvency of, general assignment for the benefit
of creditors by, filing of a petition under any chapter of the federal
bankruptcy code by or against, filing of an application in any court for a
receiver for, entry of any judgment against, or issuance of a levy or writ of
execution, attachment or garnishment against any of the property of, any
Obligor;
(e) The transfer by any Obligor of all or substantially all of his,
her or its assets outside the ordinary course of business, or the waste, loss or
dissipation of a substantial part of such person's assets;
(f) If any Obligor is a partnership, the withdrawal or removal of any
general partner of such partnership;
(g) If any Obligor is a corporation, the transfer, directly or
indirectly (including through any voting trust, irrevocable proxy, or the like),
of the ownership or power to vote more than fifty percent (50%) of the voting
stock of such corporation;
(h) The occurrence of any default or event authorizing acceleration as
provided under any promissory note or other evidence of debt, loan agreement,
security agreement, pledge agreement, assignment, mortgage, deed to secure debt,
deed of trust, lease agreement or other agreement or contract between any
Obligor and Secured Party;
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<PAGE> 7
(i) The financial responsibility of any Obligor becomes impaired at
any time in the sole reasonable opinion of Secured Party; or
(j) The determination by Secured Party that it otherwise deems itself
to be insecure.
9. REMEDIES. Upon the occurrence of any event of default set forth in the
preceding paragraph 8 and at any time thereafter, Secured Party shall have and
be entitled to exercise, from time to time, all the rights and remedies of a
secured party under the Uniform Commercial Code, and other applicable law,
including, without limitation, the right to take possession of all or any part
of the Collateral and, with or without taking possession thereof, to sell the
Collateral at one or more public or private sales, at Secured Party's option. At
Secured Party's request, Debtor agrees to assemble the Collateral and to make it
available to Secured Party at a place to be designated by Secured Party. Debtor
waives any notice of sale or other disposition of the Collateral. To the extent
that such notice may not be waived under applicable law, Debtor agrees that
notice of sale or other disposition of the Collateral hereunder, or any part
thereof, shall be sufficient if such notice is provided to Debtor in accordance
with the notice provisions set forth in this Agreement at least five (5)
calendar days before the time of the sale or disposition. Debtor agrees to pay
Secured Party on demand all expenses incurred or paid by Secured Party in
protecting or enforcing the Secured Obligations and the rights of Secured Party
hereunder, including Secured Party's right to take possession of and sell or
dispose of the Collateral, and in repossessing, collecting and storing the
Collateral, preparing the Collateral for sale, advertising and conducting such
sale, and collecting the proceeds of such sale. The proceeds of any sale or
other disposition or collection of the Collateral shall be applied, first, to
the payment of all costs and expenses incurred by Secured Party in connection
with such sale or other realization including, without limitation, attorneys'
fees as specified above and all costs of litigation, and to the repayment of all
advances made by Secured Party hereunder for the account of Debtor and the
payment of all costs and expenses paid or incurred by Secured Party in
connection with this Agreement or in the exercise of any right or remedy
hereunder or under applicable law; second, to the payment of the Secured
Obligations in such order as Secured Party may elect; and third, to Debtor, or
any other person entitled thereto, or as a court of competent jurisdiction may
direct. Debtor will remain obligated to pay any deficiency.
10. SET-OFF RIGHTS. Secured Party shall have the right to set off the
Secured Obligations against any indebtedness or liability of Secured Party to
Debtor at any time existing. As additional security for the Secured Obligations,
Debtor hereby transfers and assigns to Secured Party, and grants to Secured
Party a security interest in, all account balances, credits, deposits, and
rights of withdrawal of Debtor with Secured Party, whether now owned or
hereafter acquired, and whether jointly or severally held, and Debtor agrees
that Secured Party shall have a lien upon and security interest in all property
of Debtor of every kind now or hereafter in the possession or control of Secured
Party for any reason.
11. NOTICES. Any and all notices, elections, demands, requests and
responses thereto permitted or required to be given under this Agreement shall
be in writing, signed by or on behalf of the party giving the same, and shall be
deemed to have been properly given and shall be effective upon being personally
delivered, or three (3) days after being deposited in the United States mail,
postage prepaid, certified with return receipt requested, to Debtor if mailed to
the address set forth above Debtor's name at the end of this Agreement and to
Secured Party at the address set forth in the beginning of this Agreement or at
such other address within the continental United States for either party as such
party may designate by notice to the other given in accordance with the
provisions of this paragraph; provided, however, that the time period in which a
response to any such notice, election, demand or request must be given shall
commence on the date of receipt thereof; and provided further that no notice of
change of address shall be effective until the date of receipt thereof. Personal
delivery to a party or to any officer, partner, agent or employee of such party
at said address shall constitute receipt. Rejection or other refusal to accept
or inability to deliver because of a changed address of which no notice has been
received shall also constitute receipt.
12. MISCELLANEOUS. (a) At such time as the Secured Obligations are paid
and satisfied in full and Secured Party has no other or further obligation,
contingent or otherwise, to make any present or future advance of funds or to
incur any present or future expense contemplated by the agreements relating to
the Secured Obligations, Secured Party will deliver to Debtor a written
termination of this Agreement upon written request therefor from Debtor. Prior
to such termination this shall be a continuing Agreement in every respect.
(b) No delay by Secured Party in enforcing its rights hereunder shall
prejudice its rights to enforce this Agreement. All rights and remedies under
this Agreement, under any other agreement and under applicable law
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<PAGE> 8
shall be cumulative, and any failure of Secured Party to exercise any such right
or remedy shall not be construed as a waiver of the right to exercise the same
or any other right or remedy at any time and from time to time thereafter. No
waiver by Secured Party shall be effective unless made in writing by a duly
authorized officer or agent of Secured Party, and no waiver by Secured Party of
any right or remedy shall constitute a waiver of any other or future right or
remedy. This Agreement shall inure to the benefit of Secured Party, its
successors and assigns, and to any person to whom Secured Party may grant an
interest in any of the Secured Obligations, and shall be binding upon Debtor and
his, her, its or their respective heirs, executors, administrators, successors
and assigns. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(c) DEBTOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED IN THE STATE OF GEORGIA AND, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO
ANY ACTION INSTITUTED IN ANY SUCH COURT AND AGREES THAT SERVICE OF PROCESS IN
ANY SUCH ACTION WILL BE SUFFICIENT IF SERVED ON DEBTOR BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED OR IN ANY MANNER PROVIDED BY LAW. NOTWITHSTANDING THE
FOREGOING, SECURED PARTY SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING
AGAINST DEBTOR OR THE COLLATERAL IN THE COURTS OF ANY OTHER JURISDICTION SECURED
PARTY DEEMS NECESSARY OR APPROPRIATE IN ORDER TO ENFORCE THE OBLIGATIONS OF
DEBTOR UNDER THIS AGREEMENT OR THE RIGHTS OF SECURED PARTY WITH RESPECT TO THE
COLLATERAL.
13. DEFINITIONS. As used in this Agreement, the following terms have the
following meanings:
"Obligor" means and includes Debtor and each other person primarily or
secondarily liable to Secured Party for any of the Secured Obligations, together
with his, her, its or their heirs, administrators, executors, successors and
assigns, including any resulting or surviving corporation following any merger
or any other reorganization, and also includes any debtor in possession or
similar entity following the filing of a petition for relief by or against
Obligor under any chapter of the federal bankruptcy code or in any similar
proceeding under state or federal law, and also includes any proprietorship,
partnership, corporation, trust, or other entity resulting from or arising out
of the dissolution, liquidation or change in form of business organization by
Obligor or following any change of name or domicile by Obligor.
"Secured Obligations" means all debts and other obligations now owed
by Debtor to Secured Party, all debts and other obligations owed by Debtor to
Secured Party in the future, all extensions and renewals of any such debts or
obligations, and all interest and other lawful fees and charges on any or all
such debts and obligations, including, without limitation, late charges, penalty
interest, premiums and costs of collection (including attorneys' fees) for which
Debtor has agreed to pay or reimburse Secured Party, or for which Debtor is
obligated to pay Secured Party under applicable law, together with each and
every promissory note, guaranty, or other instrument or writing now or hereafter
evidencing the obligation of Debtor to pay any such debt, the interest thereon
or such other charges; whether such debts or other obligations are now foreseen
or unforeseen; whether now due or to become due in the future; whether arising
from contract, tort or otherwise; whether arising from an original obligation of
Debtor to Secured Party or from an obligation of Debtor which was purchased by
Secured Party, whether from time to time increased, reduced or entirely
extinguished and then reincurred; whether direct or indirect, absolute or
contingent, liquidated or unliquidated, secured or unsecured; whether otherwise
guaranteed or not; and whether arising out of one or more loans or other
extension of credit from, or line of credit with, or the issuance of one or more
letters of credit by, or the acceptance of one or more bankers' acceptances by,
or the lease of personal property from, or the furnishing of other financial
accommodation by Secured Party, or otherwise. The Secured Obligations include,
without limitation, interest, fees and other charges on any debt or obligation
of Debtor to Secured Party accruing after the filing of a petition under any
chapter of the federal bankruptcy code by or against Debtor and any loans or
other credit or financial accommodations extended to Debtor after the filing of
any such petition. The Secured Obligations shall also include, without
limitation, any amounts which Debtor may be obligated to pay Secured Party under
this Agreement and all costs and expenses incurred by Secured Party in
connection with the collection and realization upon the Collateral and
enforcement of its rights hereunder, including without limitation, court costs,
litigation expenses and attorneys' fees in an amount equal to fifteen percent
(15%) of the unpaid balance of the Secured Obligations if referred to an
attorney for collection.
All terms used in this Agreement which are not expressly defined herein
shall have the meaning, if any, ascribed to them in Article 9 of the Uniform
Commercial Code.
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<PAGE> 9
14. TIME OF ESSENCE. Time is of the essence of every provision of this
Agreement.
15. AMENDED AND RESTATEMENT. This Agreement is an amendment and
restatement of, and replaces in its entirety, that certain General Security
Agreement dated as of March 28, 1997 among Professional Transportation Group
Ltd., Inc.,Truck-Net, Inc., Timely Transportation, Inc., PTG, Inc., a Georgia
corporation, and SouthTrust Bank of Georgia.
[SIGNATURES COMMENCE ON NEXT PAGE]
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<PAGE> 10
IN WITNESS WHEREOF, each Debtor has executed this Agreement under seal, or
has caused this Agreement to be executed by its duly authorized agent and its
seal to be affixed hereto, as of the date set forth above.
ADDRESS OF 5025 DERRICK JONES ROAD
DEBTOR: SUITE 120
ATLANTA, GEORGIA 30349
DEBTOR:
PROFESSIONAL TRANSPORTATION GROUP LTD., INC.,a Georgia
corporation
By: /s/Dennis A. Bakal
--------------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
TRUCK-NET, INC., a Georgia corporation
By: /s/Dennis A. Bakal
--------------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
TIMELY TRANSPORTATION, INC., a Georgia corporation
By: /s/Dennis A. Bakal
--------------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
PTG, INC., a Georgia corporation
By: /s/Dennis A. Bakal
--------------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
TIMELY NORTH, INC., a Georgia corporation
By: /s/Dennis A. Bakal
--------------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
10
<PAGE> 1
EXHIBIT 10.6
GUARANTY OF PAYMENT AND PERFORMANCE
THIS GUARANTY OF PAYMENT AND PERFORMANCE ("Guaranty"), dated as of
November 19, 1997, is made by the undersigned PROFESSIONAL TRANSPORTATION GROUP
LTD., INC., a Georgia corporation, TRUCK-NET, INC., a Georgia corporation,
TIMELY TRANSPORTATION, INC., a Georgia corporation, PTG, INC., a Georgia
corporation, and DENNIS A. BAKAL, a Georgia resident (hereinafter jointly,
severally and collectively referred to as "Guarantor"), with SOUTHTRUST BANK,
N.A., a national banking association ("Bank").
W I T N E S S E T H :
FOR VALUE RECEIVED, and to induce Bank to make a loan, extend credit
or make other financial accommodations available to TIMELY NORTH, INC., a
Georgia corporation (as hereinafter further defined, "Borrower"), and for the
consideration set forth below, Guarantor hereby agrees with Bank as follows:
1. PURPOSE. This Guaranty is made for the purpose of securing
for Borrower one or more loans or other extensions of credit from, or a line of
credit with, or the issuance of one or more letters of credit by, or the
acceptance of one or more bankers' acceptances by, or the lease of personal
property from or the furnishing of other financial accommodations by Bank, in
amounts and upon terms and conditions as Bank, in its sole discretion, may deem
appropriate. All such loans or other financial accommodations now or hereafter
provided by Bank to Borrower, and all extensions or renewals of debts or other
obligations now or at any time hereafter owing by Borrower to Bank, are made by
Bank in reliance on this Guaranty, are to the interest and benefit of Guarantor,
and are sufficient consideration for the execution and delivery of this Guaranty
by Guarantor. Each term and provision of every promissory note or other evidence
of debt, and every loan agreement, security agreement, mortgage, deed to secure
debt, deed of trust, letter of credit reimbursement agreement, bankers'
acceptance agreement, lease agreement and every other contract now or hereafter
executed by Borrower and delivered to Bank, shall bind Guarantor as if executed
by Guarantor as the primary and individual obligation of Guarantor.
2. GUARANTY. Guarantor, jointly and severally if more than one,
hereby unconditionally guarantees to Bank the prompt payment and performance by
Borrower when due of all the Guaranteed Obligations (as hereinafter defined).
This Guaranty is a guaranty of payment and performance and not of collection. In
the event Borrower at any time fails to pay or perform any of the Guaranteed
Obligations as and when the same become due, whether by acceleration of maturity
or otherwise, and in accordance with all applicable terms and conditions,
Guarantor agrees to pay such debt or perform such obligation immediately. Upon
failure of Guarantor to do so, Bank may, in its discretion, enforce the
collection of such debt or the performance of such obligation against Guarantor
by action in any court of competent jurisdiction, or in any other manner
provided by law, the same as if such debt or obligation were the primary and
individual debt or obligation of Guarantor, and without first seeking to enforce
such debt or obligation by action or otherwise against Borrower; or, Bank may,
in its discretion, proceed in any manner provided by law or by contract for
collection of debts against either or both Guarantor and Borrower the same as if
such debts and obligations were primarily and individually the debt of both
Guarantor and Borrower, jointly and severally.
3. CONTINUING GUARANTY. THIS GUARANTY IS AN ABSOLUTE,
UNCONDITIONAL AND CONTINUING GUARANTEE. This Guaranty extends to all Guaranteed
Obligations contracted or owing by Borrower to Bank now and at any time prior to
Bank's return of this Guaranty to Guarantor or the termination of this Guaranty
pursuant to the provisions of this paragraph, even though from time to time and
for extended periods of time there may be no debt or obligation owed to Bank by
Borrower. Subject to the following provisions, Guarantor shall have the right to
terminate this Guaranty at any time effective ten (10) days after receipt by
Bank of written notice of Guarantor's intention to terminate this Guaranty. Such
termination will not affect Guarantor's obligations with respect to, and this
Guaranty will remain in full force and effect with respect to, all of the
Guaranteed Obligations then due and owing or then contracted for or existing,
whether or not yet due, at the time such notice becomes effective, and all
obligations described in paragraph 4.e. of this Guaranty, whether then existing
or arising in the future, and also with respect to any subsequent loans,
extensions of credit, and other financial accommodations which, prior to the
effectiveness of such notice, Bank may have committed to make to Borrower
(regardless of whether Bank waives any default or condition precedent to the
making of such loans, extensions of credit, or other financial accommodations),
together with all interest thereon and all expenses, including costs of
collection and attorneys' fees, with respect to such Guaranteed Obligations and
this Guaranty.
<PAGE> 2
4. WAIVERS AND AGREEMENTS OF GUARANTOR. Guarantor hereby
irrevocably:
a. Consents to all terms, covenants, conditions and
agreements heretofore or hereafter made by Borrower with Bank, including,
without limitation, agreements regarding the manner of disposing any collateral
held as security for the Guaranteed Obligations in a commercially reasonable
manner and agreements regarding the manner and time of giving notice of any sale
or other intended disposition of any of such collateral;
b. Consents that Bank may, without discharging Guarantor or
in any way affecting the obligations of Guarantor under this Guaranty, without
notice to or further consent from Guarantor: (i) exchange, release or surrender
to Borrower or to any Guarantor or any other person, or waive, release,
subordinate, fail to perfect any lien or security interest in, or otherwise
impair, any collateral now or hereafter held as security for any of the
Guaranteed Obligations or any right of set off against any deposit account of
Borrower; (ii) waive or delay the exercise of any of its rights or remedies
against Borrower or any other person or entity, including, without limitation,
Guarantor; (iii) with or without consideration, release Borrower or any other
person or entity, including, without limitation, any other guarantor of the
Guaranteed Obligations; (iv) renew, extend, or modify the terms of any of the
Guaranteed Obligations or of any promissory note or other instrument or
agreement evidencing the same; (v) apply payments made by Borrower, Guarantor or
any other person or entity to any of the Guaranteed Obligations in such manner
and in such order as Bank may elect; (vi) apply payments received for Borrower's
account first to pay any indebtedness of Borrower that is not guaranteed by
Guarantor, if any, before reducing the Guaranteed Obligations; and (vii) in the
event of the filing of a petition (whether voluntary or involuntary) under any
chapter of the federal bankruptcy code with respect to Borrower, participate in
the bankruptcy proceedings and exercise any and all rights set forth in clauses
(i) through (vi) above or otherwise available to Bank under applicable law,
including, without limitation, voting for or against any plan of reorganization,
consenting to the use of any cash collateral, consenting to the sale, use or
lease of any collateral securing any of the Guaranteed Obligations, and entering
into any compromise or settlement regarding the Guaranteed Obligations or any
collateral therefor;
c. Waives all notices whatsoever with respect to this
Guaranty or with respect to the Guaranteed Obligations or any collateral
therefor, including, without limitation, notice of (i) Bank's acceptance of this
Guaranty or its intention to act, or its actions, in reliance hereon; (ii) the
existence, creation or incurring of any of the Guaranteed Obligations or the
terms or amounts thereof or any change therein; (iii) presentment and nonpayment
or dishonor with respect to any promissory note or other instrument or agreement
now or hereafter evidencing any of the Guaranteed Obligations, and any other
demands and notices, except any notice that may be required by law which cannot
be waived; (iv) any default by Borrower or any surety, pledgor, grantor of any
lien or security interest, or guarantor, including, without limitation,
Guarantor; (v) the obtaining or release of any guaranty or surety agreement (in
addition to this Guaranty), or any pledge, assignment, security agreement,
mortgage, deed to secure debt, deed of trust or other security for any of the
Guaranteed Obligations;
d. Waives any right to require Bank to take action against
Borrower as provided for in Section 10-7-24 of the Official Code of Georgia
Annotated or any other statute or applicable law, and waives any requirement
that suit under this Guaranty be brought within any period of time shorter than
the general statute of limitations applicable to contracts under seal;
e. Agrees that, if at any time all or any part of any
payment previously applied by Bank to any of the Guaranteed Obligations must be
returned by Bank for any reason, whether upon the claim of a preference,
fraudulent transfer, prior lien or other claim of a creditor, debtor in
possession, trustee in bankruptcy or other representative of creditors of
Borrower, or otherwise, and whether by court order, administrative order or
non-judicial settlement, this Guaranty shall continue in effect or shall be
reinstated, as the case may be, and Guarantor shall remain liable for the full
amount returned as if such amount had never been received by Bank,
notwithstanding any termination, cancellation or revocation of this Guaranty
(whether under paragraph 3 above or otherwise) or cancellation of any promissory
note or other instrument or agreement evidencing any of the Guaranteed
Obligations;
2
<PAGE> 3
f. Agrees that this Guaranty will be valid and binding upon
Guarantor when delivered to Bank by anyone having possession hereof after
execution of this Guaranty by Guarantor.
g. Agrees that Guarantor's liability under this Guaranty is
absolute and is not conditioned on the execution of this or any similar guaranty
by any other person or upon the occurrence or nonoccurrence of any other event;
h. Waives any right to require Bank to marshall the assets
of Borrower or any other person and agrees that Bank may proceed against any
collateral securing the Guaranteed Obligations (whether or not Guarantor or any
other person holds a lien on only a part of such collateral) and against parties
liable on any of the Guaranteed Obligations in such order as Bank may elect, the
benefit of any rule of law or equity to the contrary being hereby expressly
waived by Guarantor;
i. Agrees that the liability of Guarantor under this
Guaranty shall not be affected or impaired by, and this Guaranty shall remain
fully enforceable against Guarantor for the full amount of the Guaranteed
Obligations less only payments thereon actually received and retained by Bank
irrespective of and without reduction on account of (i) any defense, offset or
counterclaim which Borrower may have or assert with respect to any of the
Guaranteed Obligations, including, without limitation, filing of a petition in
bankruptcy, discharge in bankruptcy, confirmation of a plan or reorganization
(whether Bank voted for or against such plan), composition with creditors
(whether or not including Bank), failure of consideration, breach of warranty,
statute of frauds, statute of limitations, accord and satisfaction, wavier,
estoppel, release, usury, or fraud or misrepresentation, (ii) termination of any
present or future relationship between Guarantor and Borrower or between
Guarantor and any other guarantor of any obligations of Borrower, or (iii)
death, incompetency, or dissolution of Guarantor or Borrower;
j. Agrees that Bank may, at its election, release or satisfy
of record any collateral for this Guaranty only after any applicable preference
periods have elapsed; and
k. Waives, renounces and agrees not to assert any right,
claim or cause of action against Borrower, including, without limitation, a
claim for reimbursement, subrogation, indemnification or otherwise. The waiver,
renunciation and agreement set forth in the preceding sentence is for the
benefit of Bank and also for the benefit of Borrower, who may assert the
benefits thereof as a third-party beneficiary and Guarantor may be released from
such waiver, renunciation and agreement only by the execution and delivery, by
Bank and Borrower, of an instrument expressly releasing Guarantor therefrom.
5. FINANCIAL STATEMENTS. Guarantor agrees, for so long as there
is any amount outstanding of the Guaranteed Obligations, to provide Bank copies
of each income tax return filed by Guarantor after the date of this Guaranty and
financial statements and other information of or concerning Guarantor, in such
detail, of such quality (i.e., audited, reviewed, unaudited or otherwise), and
with such frequency as Bank may reasonably request from time to time. All
financial statements required by Bank as set forth above shall be prepared in
accordance with generally accepted accounting principles (except for the absence
of footnotes with respect to monthly and quarterly financial statements) and
shall fairly present the financial position and results of operations of
Guarantor as of and for the periods specified.
6. STATUTE OF LIMITATIONS. Guarantor acknowledges that the
statute of limitations applicable to this Guaranty shall begin to run only upon
Guarantor's failure to refusal to pay any of the Guaranteed Obligations
following default in the payment or performance thereof by Borrower; provided,
that if subsequent to such default, Bank reaches an agreement with Borrower on
any terms causing Bank to forbear in the enforcement of its claims against
Guarantor, the statute of limitations shall be reinstated for its full duration
until Borrower again defaults.
7. COLLECTION COSTS. Guarantor hereby agrees to pay all costs
of collecting under this Guaranty, including, without limitation, court costs,
litigation expenses and attorneys' fees in an amount equal to fifteen percent
(15%) of the unpaid balance of the Guaranteed Obligations if referred to an
attorney for collection. If attorneys' fees in such amount would be prohibited
by applicable law, then Guarantor agrees to pay reasonable
3
<PAGE> 4
attorneys' fees not to exceed the maximum amount allowed by law.
8. NOTICES. Any and all notices, elections, demands, requests
and responses thereto permitted or required to be given under this Guaranty
shall be in writing, signed by or on behalf of the party giving the same, and
shall be deemed to have been properly given and shall be effective upon being
personally delivered, or three (3) days after being deposited in the United
States mail, postage prepaid, certified with return receipt requested, to
Guarantor if mailed to the address set forth above Guarantor's name at the end
of this Guaranty and to Bank at the address set forth in the beginning of this
Guaranty or at such other address within the continental United States for
either party as such party may designate by notice to the other given in
accordance with the provisions of this paragraph; provided, however, that the
time period in which a response to any such notice, election, demand or request
must be given shall commence on the date of receipt thereof; and provided
further that no notice of change of address shall be effective until the date of
receipt thereof. Personal delivery to a party or to any officer, partner, agent
or employee of such party at said address shall constitute receipt. Rejection or
other refusal to accept or inability to deliver because of a changed address of
which no notice has been received shall also constitute receipt.
9. CONSENT TO JURISDICTION. GUARANTOR HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF GEORGIA AND,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVES ANY OBJECTION BASED ON VENUE
OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED IN ANY SUCH COURT
AND AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION WILL BE SUFFICIENT IF
SERVED ON GUARANTOR IN CANADA OR THE UNITED STATES OF AMERICA BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED OR IN ANY MANNER PROVIDED BY LAW. NOTWITHSTANDING THE
FOREGOING, BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST
GUARANTOR OR GUARANTOR'S PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION BANK
DEEMS NECESSARY OR APPROPRIATE IN ORDER TO ENFORCE THE OBLIGATIONS OF GUARANTOR
UNDER THIS GUARANTY.
10. DEFINITIONS. As used in this Guaranty, the following terms
have the following meanings:
"Borrower" means the entity identified above in this Guaranty,
together with his, her, its or their heirs, administrators, executors,
successors and assigns, including any resulting or surviving corporation
following any merger or any other reorganization, and also includes any debtor
in possession or similar entity following the filing of a petition for relief by
or against Borrower under any chapter of the federal bankruptcy code or in any
similar proceeding under state or federal law, and also includes any
proprietorship, partnership, corporation, trust, or other entity resulting from
or arising out of the dissolution, liquidation or change in form of business
organization by Borrower or following any change of name or domicile by
Borrower.
"Guaranteed Obligations" means all debts and other obligations
now owed by Borrower to Bank, all debts and other obligations owed by Borrower
to Bank in the future, all extensions and renewals of any such debts or
obligations, and all interest and other lawful fees and charges on any or all
such debts and obligations, including, without limitation, late charges, penalty
interest, premiums and costs of collection (including reasonable attorneys'
fees) for which Borrower has agreed to pay or reimburse Bank, or for which
Borrower is obligated to pay Bank under applicable law, together with each and
every promissory note or other instrument or writing now or hereafter evidencing
the obligation of Borrower to pay any such debt, the interest thereon or such
other charges; whether such debts or other obligations are now foreseen or
unforeseen; whether now due or to become due in the future; whether incurred
with or without notice to Guarantor; whether arising from contract, tort or
otherwise; whether arising from an original obligation of Borrower to Bank or
from an obligation of Borrower which was purchased by Bank, whether from time to
time increased, reduced or entirely extinguished and then reincurred; whether
direct or indirect, absolute or contingent, liquidated or unliquidated, secured
or unsecured; whether otherwise guaranteed or not; and whether arising out of
one or more loans or other extensions of credit from, or line of credit with, or
the issuance of one or more letters of credit by, or the acceptance of one or
more bankers' acceptances by, or the lease of personal property from, or the
furnishing of other financial accommodation by Bank, or otherwise. The
Guaranteed Obligations include, without limitation, interest, fees and other
charges on any debt or obligation of Borrower to Bank accruing after the filing
of a petition under any chapter of the federal bankruptcy code by or against
Borrower and any loans or other credit or financial accommodations extended to
Borrower after the filing of
4
<PAGE> 5
any such petition. THE GUARANTEED OBLIGATIONS SPECIFICALLY ARE NOT LIMITED TO
DEBTS AND OTHER OBLIGATIONS CONTRACTED FOR OR ARISING CONCURRENTLY WITH OR PRIOR
TO THE EXECUTION OF THIS GUARANTY AND ARE NOT LIMITED IN AMOUNT UNLESS OTHERWISE
SPECIFICALLY SET FORTH IN WRITING IN THIS GUARANTY.
11. MISCELLANEOUS. No delay by Bank in enforcing its rights
hereunder shall prejudice its rights to enforce this Guaranty. All rights and
remedies under this Guaranty, under any other agreement and under applicable law
shall be cumulative, and any failure of Bank to exercise any such right or
remedy shall not be construed as a waiver of the right to exercise the same or
any other right or remedy at any time and from time to time, thereafter. No
waiver by Bank shall be effective unless made in writing by a duly authorized
officer or agent of Bank, and no waiver by Bank of any right or remedy shall
constitute a waiver of any other or future right or remedy. This Guaranty shall
inure to the benefit of Bank, its successors and assigns, and to any person to
whom Bank may grant an interest in any of the Guaranteed Obligations, and shall
be binding upon Guarantor, and his, her, its or their respective heirs,
executors, administrators, successors and assigns. This Guaranty sets forth the
entire agreement and understanding of Guarantor with respect to the subject
matter hereof. GUARANTOR ACKNOWLEDGES THAT NO AGENT OF BANK HAS MADE ANY
REPRESENTATION WHICH IS INCONSISTENT WITH ANY OF THE TERMS OF THIS GUARANTY AND
THAT NO OFFICER OR AGENT OF BANK HAS THE AUTHORITY TO VARY THE TERMS OF THIS
GUARANTY EXCEPT IN A WRITING SIGNED BY A DULY AUTHORIZED OFFICER OF BANK. The
making of the loans and providing of the other financial accommodations referred
to in this Guaranty shall be solely in the discretion of Bank, and reference
thereto in this Guaranty, whether in paragraph 1 hereof or elsewhere, shall not
be deemed to be a commitment by Bank to make any loan or provide any financial
accommodation. In the event any one or more of the provisions of this Guaranty
shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions of this Guaranty shall
not in any way be affected or impaired thereby. If more than one person or
entity signs this Guaranty below, the liability of such persons or entities on
this Guaranty is joint and several, and all references to the singular in this
Guaranty also include the plural. In the event of termination, cancellation,
revocation or release of this Guaranty as to any one or more Guarantors, this
Guaranty shall continue in full force and effect with respect to the remaining
Guarantors. THIS GUARANTY SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty under seal
as of the date first above written.
ADDRESSES OF
EACH GUARANTOR: 5025 DERRICK JONES ROAD
SUITE 120
ATLANTA, GEORGIA 30349
GUARANTOR:
PROFESSIONAL TRANSPORTATION GROUP LTD., INC., a
Georgia corporation
By: /s/Dennis A. Bakal
---------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
TRUCK-NET, INC., a Georgia corporation
By: /s/Dennis A. Bakal
---------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
5
<PAGE> 6
TIMELY TRANSPORTATION, INC., a Georgia corporation
By: /s/Dennis A. Bakal
----------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
PTG, INC., a Georgia corporation
By: /s/Dennis A. Bakal
----------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
/s/Dennis A. Bakal
---------------------------------------------
DENNIS A. BAKAL (individually)
6
<PAGE> 1
EXHIBIT 10.7
GUARANTY OF PAYMENT AND PERFORMANCE
THIS GUARANTY OF PAYMENT AND PERFORMANCE ("Guaranty"), dated as of
November 19, 1997, is made by the undersigned, TIMELY NORTH, INC., a Georgia
corporation, TRUCK-NET, INC., a Georgia corporation, TIMELY TRANSPORTATION,
INC., a Georgia corporation, PTG, INC., a Georgia corporation, and DENNIS A.
BAKAL, a Georgia resident (hereinafter jointly, severally and collectively
referred to as "Guarantor"), with SOUTHTRUST BANK, N.A., a national banking
association ("Bank").
W I T N E S S E T H:
FOR VALUE RECEIVED, and to induce Bank to make a loan, extend credit
or make other financial accommodations available to PROFESSIONAL TRANSPORTATION
GROUP LTD., INC., a Georgia corporation (as hereinafter further defined,
"Borrower"), and for the consideration set forth below, Guarantor hereby agrees
with Bank as follows:
1. PURPOSE. This Guaranty is made for the purpose of securing
for Borrower one or more loans or other extensions of credit from, or a line of
credit with, or the issuance of one or more letters of credit by, or the
acceptance of one or more bankers' acceptances by, or the lease of personal
property from or the furnishing of other financial accommodations by Bank, in
amounts and upon terms and conditions as Bank, in its sole discretion, may deem
appropriate. All such loans or other financial accommodations now or hereafter
provided by Bank to Borrower, and all extensions or renewals of debts or other
obligations now or at any time hereafter owing by Borrower to Bank, are made by
Bank in reliance on this Guaranty, are to the interest and benefit of Guarantor,
and are sufficient consideration for the execution and delivery of this Guaranty
by Guarantor. Each term and provision of every promissory note or other evidence
of debt, and every loan agreement, security agreement, mortgage, deed to secure
debt, deed of trust, letter of credit reimbursement agreement, bankers'
acceptance agreement, lease agreement and every other contract now or hereafter
executed by Borrower and delivered to Bank, shall bind Guarantor as if executed
by Guarantor as the primary and individual obligation of Guarantor.
2. GUARANTY. Guarantor, jointly and severally if more than one,
hereby unconditionally guarantees to Bank the prompt payment and performance by
Borrower when due of all the Guaranteed Obligations (as hereinafter defined).
This Guaranty is a guaranty of payment and performance and not of collection. In
the event Borrower at any time fails to pay or perform any of the Guaranteed
Obligations as and when the same become due, whether by acceleration of maturity
or otherwise, and in accordance with all applicable terms and conditions,
Guarantor agrees to pay such debt or perform such obligation immediately. Upon
failure of Guarantor to do so, Bank may, in its discretion, enforce the
collection of such debt or the performance of such obligation against Guarantor
by action in any court of competent jurisdiction, or in any other manner
provided by law, the same as if such debt or obligation were the primary and
individual debt or obligation of Guarantor, and without first seeking to enforce
such debt or obligation by action or otherwise against Borrower; or, Bank may,
in its discretion, proceed in any manner provided by law or by contract for
collection of debts against either or both Guarantor and Borrower the same as if
such debts and obligations were primarily and individually the debt of both
Guarantor and Borrower, jointly and severally.
3. CONTINUING GUARANTY. THIS GUARANTY IS AN ABSOLUTE,
UNCONDITIONAL AND CONTINUING GUARANTEE. This Guaranty extends to all Guaranteed
Obligations contracted or owing by Borrower to Bank now and at any time prior to
Bank's return of this Guaranty to Guarantor or the termination of this Guaranty
pursuant to the provisions of this paragraph, even though from time to time and
for extended periods of time there may be no debt or obligation owed to Bank by
Borrower. Subject to the following provisions, Guarantor shall have the right to
terminate this Guaranty at any time effective ten (10) days after receipt by
Bank of written notice of Guarantor's intention to terminate this Guaranty. Such
termination will not affect Guarantor's obligations with respect to, and this
Guaranty will remain in full force and effect with respect to, all of the
Guaranteed Obligations then due and owing or then contracted for or existing,
whether or not yet due, at the time such notice becomes effective, and all
obligations described in paragraph 4.e. of this Guaranty, whether then existing
or arising in the future, and also with respect to any subsequent loans,
extensions of credit, and other financial accommodations which, prior to the
effectiveness of such notice, Bank may have committed to make to Borrower
(regardless of whether Bank waives
<PAGE> 2
any default or condition precedent to the making of such loans, extensions of
credit, or other financial accommodations), together with all interest thereon
and all expenses, including costs of collection and attorneys' fees, with
respect to such Guaranteed Obligations and this Guaranty.
4. WAIVERS AND AGREEMENTS OF GUARANTOR. Guarantor hereby
irrevocably:
a. Consents to all terms, covenants, conditions and
agreements heretofore or hereafter made by Borrower with Bank, including,
without limitation, agreements regarding the manner of disposing any collateral
held as security for the Guaranteed Obligations in a commercially reasonable
manner and agreements regarding the manner and time of giving notice of any sale
or other intended disposition of any of such collateral;
b. Consents that Bank may, without discharging Guarantor or
in any way affecting the obligations of Guarantor under this Guaranty, without
notice to or further consent from Guarantor: (i) exchange, release or surrender
to Borrower or to any Guarantor or any other person, or waive, release,
subordinate, fail to perfect any lien or security interest in, or otherwise
impair, any collateral now or hereafter held as security for any of the
Guaranteed Obligations or any right of set off against any deposit account of
Borrower; (ii) waive or delay the exercise of any of its rights or remedies
against Borrower or any other person or entity, including, without limitation,
Guarantor; (iii) with or without consideration, release Borrower or any other
person or entity, including, without limitation, any other guarantor of the
Guaranteed Obligations; (iv) renew, extend, or modify the terms of any of the
Guaranteed Obligations or of any promissory note or other instrument or
agreement evidencing the same; (v) apply payments made by Borrower, Guarantor or
any other person or entity to any of the Guaranteed Obligations in such manner
and in such order as Bank may elect; (vi) apply payments received for Borrower's
account first to pay any indebtedness of Borrower that is not guaranteed by
Guarantor, if any, before reducing the Guaranteed Obligations; and (vii) in the
event of the filing of a petition (whether voluntary or involuntary) under any
chapter of the federal bankruptcy code with respect to Borrower, participate in
the bankruptcy proceedings and exercise any and all rights set forth in clauses
(i) through (vi) above or otherwise available to Bank under applicable law,
including, without limitation, voting for or against any plan of reorganization,
consenting to the use of any cash collateral, consenting to the sale, use or
lease of any collateral securing any of the Guaranteed Obligations, and entering
into any compromise or settlement regarding the Guaranteed Obligations or any
collateral therefor;
c. Waives all notices whatsoever with respect to this
Guaranty or with respect to the Guaranteed Obligations or any collateral
therefor, including, without limitation, notice of (i) Bank's acceptance of this
Guaranty or its intention to act, or its actions, in reliance hereon; (ii) the
existence, creation or incurring of any of the Guaranteed Obligations or the
terms or amounts thereof or any change therein; (iii) presentment and nonpayment
or dishonor with respect to any promissory note or other instrument or agreement
now or hereafter evidencing any of the Guaranteed Obligations, and any other
demands and notices, except any notice that may be required by law which cannot
be waived; (iv) any default by Borrower or any surety, pledgor, grantor of any
lien or security interest, or guarantor, including, without limitation,
Guarantor; (v) the obtaining or release of any guaranty or surety agreement (in
addition to this Guaranty), or any pledge, assignment, security agreement,
mortgage, deed to secure debt, deed of trust or other security for any of the
Guaranteed Obligations;
d. Waives any right to require Bank to take action against
Borrower as provided for in Section 10-7-24 of the Official Code of Georgia
Annotated or any other statute or applicable law, and waives any requirement
that suit under this Guaranty be brought within any period of time shorter than
the general statute of limitations applicable to contracts under seal;
e. Agrees that, if at any time all or any part of any
payment previously applied by Bank to any of the Guaranteed Obligations must be
returned by Bank for any reason, whether upon the claim of a preference,
fraudulent transfer, prior lien or other claim of a creditor, debtor in
possession, trustee in bankruptcy or other representative of creditors of
Borrower, or otherwise, and whether by court order, administrative order or
non-judicial settlement, this Guaranty shall continue in effect or shall be
reinstated, as the case may be, and Guarantor shall remain liable for the full
amount returned as if such amount had never been received by Bank,
notwithstanding any termination, cancellation or revocation of this Guaranty
(whether under paragraph 3 above or
2
<PAGE> 3
otherwise) or cancellation of any promissory note or other instrument or
agreement evidencing any of the Guaranteed Obligations;
f. Agrees that this Guaranty will be valid and binding upon
Guarantor when delivered to Bank by anyone having possession hereof after
execution of this Guaranty by Guarantor.
g. Agrees that Guarantor's liability under this Guaranty is
absolute and is not conditioned on the execution of this or any similar guaranty
by any other person or upon the occurrence or nonoccurrence of any other event;
h. Waives any right to require Bank to marshall the assets
of Borrower or any other person and agrees that Bank may proceed against any
collateral securing the Guaranteed Obligations (whether or not Guarantor or any
other person holds a lien on only a part of such collateral) and against parties
liable on any of the Guaranteed Obligations in such order as Bank may elect, the
benefit of any rule of law or equity to the contrary being hereby expressly
waived by Guarantor;
i. Agrees that the liability of Guarantor under this
Guaranty shall not be affected or impaired by, and this Guaranty shall remain
fully enforceable against Guarantor for the full amount of the Guaranteed
Obligations less only payments thereon actually received and retained by Bank
irrespective of and without reduction on account of (i) any defense, offset or
counterclaim which Borrower may have or assert with respect to any of the
Guaranteed Obligations, including, without limitation, filing of a petition in
bankruptcy, discharge in bankruptcy, confirmation of a plan or reorganization
(whether Bank voted for or against such plan), composition with creditors
(whether or not including Bank), failure of consideration, breach of warranty,
statute of frauds, statute of limitations, accord and satisfaction, wavier,
estoppel, release, usury, or fraud or misrepresentation, (ii) termination of any
present or future relationship between Guarantor and Borrower or between
Guarantor and any other guarantor of any obligations of Borrower, or (iii)
death, incompetency, or dissolution of Guarantor or Borrower;
j. Agrees that Bank may, at its election, release or satisfy
of record any collateral for this Guaranty only after any applicable preference
periods have elapsed; and
k. Waives, renounces and agrees not to assert any right,
claim or cause of action against Borrower, including, without limitation, a
claim for reimbursement, subrogation, indemnification or otherwise. The waiver,
renunciation and agreement set forth in the preceding sentence is for the
benefit of Bank and also for the benefit of Borrower, who may assert the
benefits thereof as a third-party beneficiary and Guarantor may be released from
such waiver, renunciation and agreement only by the execution and delivery, by
Bank and Borrower, of an instrument expressly releasing Guarantor therefrom.
5. FINANCIAL STATEMENTS. Guarantor agrees, for so long as there
is any amount outstanding of the Guaranteed Obligations, to provide Bank copies
of each income tax return filed by Guarantor after the date of this Guaranty and
financial statements and other information of or concerning Guarantor, in such
detail, of such quality (i.e., audited, reviewed, unaudited or otherwise), and
with such frequency as Bank may reasonably request from time to time. All
financial statements required by Bank as set forth above shall be prepared in
accordance with generally accepted accounting principles (except for the absence
of footnotes with respect to monthly and quarterly financial statements) and
shall fairly present the financial position and results of operations of
Guarantor as of and for the periods specified.
6. STATUTE OF LIMITATIONS. Guarantor acknowledges that the
statute of limitations applicable to this Guaranty shall begin to run only upon
Guarantor's failure to refusal to pay any of the Guaranteed Obligations
following default in the payment or performance thereof by Borrower; provided,
that if subsequent to such default, Bank reaches an agreement with Borrower on
any terms causing Bank to forbear in the enforcement of its claims against
Guarantor, the statute of limitations shall be reinstated for its full duration
until Borrower again defaults.
7. COLLECTION COSTS. Guarantor hereby agrees to pay all costs
of collecting under this Guaranty, including, without limitation, court costs,
litigation expenses and attorneys' fees in an amount equal to fifteen
3
<PAGE> 4
percent (15%) of the unpaid balance of the Guaranteed Obligations if referred to
an attorney for collection. If attorneys' fees in such amount would be
prohibited by applicable law, then Guarantor agrees to pay reasonable attorneys'
fees not to exceed the maximum amount allowed by law.
8. NOTICES. Any and all notices, elections, demands, requests
and responses thereto permitted or required to be given under this Guaranty
shall be in writing, signed by or on behalf of the party giving the same, and
shall be deemed to have been properly given and shall be effective upon being
personally delivered, or three (3) days after being deposited in the United
States mail, postage prepaid, certified with return receipt requested, to
Guarantor if mailed to the address set forth above Guarantor's name at the end
of this Guaranty and to Bank at the address set forth in the beginning of this
Guaranty or at such other address within the continental United States for
either party as such party may designate by notice to the other given in
accordance with the provisions of this paragraph; provided, however, that the
time period in which a response to any such notice, election, demand or request
must be given shall commence on the date of receipt thereof; and provided
further that no notice of change of address shall be effective until the date of
receipt thereof. Personal delivery to a party or to any officer, partner, agent
or employee of such party at said address shall constitute receipt. Rejection or
other refusal to accept or inability to deliver because of a changed address of
which no notice has been received shall also constitute receipt.
9. CONSENT TO JURISDICTION. GUARANTOR HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF GEORGIA AND,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVES ANY OBJECTION BASED ON VENUE
OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED IN ANY SUCH COURT
AND AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION WILL BE SUFFICIENT IF
SERVED ON GUARANTOR IN CANADA OR THE UNITED STATES OF AMERICA BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED OR IN ANY MANNER PROVIDED BY LAW. NOTWITHSTANDING THE
FOREGOING, BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST
GUARANTOR OR GUARANTOR'S PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION BANK
DEEMS NECESSARY OR APPROPRIATE IN ORDER TO ENFORCE THE OBLIGATIONS OF GUARANTOR
UNDER THIS GUARANTY.
10. DEFINITIONS. As used in this Guaranty, the following terms
have the following meanings:
"Borrower" means the entity identified above in this Guaranty,
together with his, her, its or their heirs, administrators, executors,
successors and assigns, including any resulting or surviving corporation
following any merger or any other reorganization, and also includes any debtor
in possession or similar entity following the filing of a petition for relief by
or against Borrower under any chapter of the federal bankruptcy code or in any
similar proceeding under state or federal law, and also includes any
proprietorship, partnership, corporation, trust, or other entity resulting from
or arising out of the dissolution, liquidation or change in form of business
organization by Borrower or following any change of name or domicile by
Borrower.
"Guaranteed Obligations" means all debts and other obligations
now owed by Borrower to Bank, all debts and other obligations owed by Borrower
to Bank in the future, all extensions and renewals of any such debts or
obligations, and all interest and other lawful fees and charges on any or all
such debts and obligations, including, without limitation, late charges, penalty
interest, premiums and costs of collection (including reasonable attorneys'
fees) for which Borrower has agreed to pay or reimburse Bank, or for which
Borrower is obligated to pay Bank under applicable law, together with each and
every promissory note or other instrument or writing now or hereafter evidencing
the obligation of Borrower to pay any such debt, the interest thereon or such
other charges; whether such debts or other obligations are now foreseen or
unforeseen; whether now due or to become due in the future; whether incurred
with or without notice to Guarantor; whether arising from contract, tort or
otherwise; whether arising from an original obligation of Borrower to Bank or
from an obligation of Borrower which was purchased by Bank, whether from time to
time increased, reduced or entirely extinguished and then reincurred; whether
direct or indirect, absolute or contingent, liquidated or unliquidated, secured
or unsecured; whether otherwise guaranteed or not; and whether arising out of
one or more loans or other extensions of credit from, or line of credit with, or
the issuance of one or more letters of credit by, or the acceptance of one or
more bankers' acceptances by, or the lease of personal property from, or the
furnishing of other financial accommodation by Bank, or otherwise. The
Guaranteed Obligations include, without limitation, interest, fees and other
charges on any debt or obligation of Borrower to Bank accruing after the filing
of a petition under any chapter of the federal bankruptcy code by or
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against Borrower and any loans or other credit or financial accommodations
extended to Borrower after the filing of any such petition. THE GUARANTEED
OBLIGATIONS SPECIFICALLY ARE NOT LIMITED TO DEBTS AND OTHER OBLIGATIONS
CONTRACTED FOR OR ARISING CONCURRENTLY WITH OR PRIOR TO THE EXECUTION OF THIS
GUARANTY AND ARE NOT LIMITED IN AMOUNT UNLESS OTHERWISE SPECIFICALLY SET FORTH
IN WRITING IN THIS GUARANTY.
11. MISCELLANEOUS. No delay by Bank in enforcing its rights
hereunder shall prejudice its rights to enforce this Guaranty. All rights and
remedies under this Guaranty, under any other agreement and under applicable law
shall be cumulative, and any failure of Bank to exercise any such right or
remedy shall not be construed as a waiver of the right to exercise the same or
any other right or remedy at any time and from time to time, thereafter. No
waiver by Bank shall be effective unless made in writing by a duly authorized
officer or agent of Bank, and no waiver by Bank of any right or remedy shall
constitute a waiver of any other or future right or remedy. This Guaranty shall
inure to the benefit of Bank, its successors and assigns, and to any person to
whom Bank may grant an interest in any of the Guaranteed Obligations, and shall
be binding upon Guarantor, and his, her, its or their respective heirs,
executors, administrators, successors and assigns. This Guaranty sets forth the
entire agreement and understanding of Guarantor with respect to the subject
matter hereof. GUARANTOR ACKNOWLEDGES THAT NO AGENT OF BANK HAS MADE ANY
REPRESENTATION WHICH IS INCONSISTENT WITH ANY OF THE TERMS OF THIS GUARANTY AND
THAT NO OFFICER OR AGENT OF BANK HAS THE AUTHORITY TO VARY THE TERMS OF THIS
GUARANTY EXCEPT IN A WRITING SIGNED BY A DULY AUTHORIZED OFFICER OF BANK. The
making of the loans and providing of the other financial accommodations referred
to in this Guaranty shall be solely in the discretion of Bank, and reference
thereto in this Guaranty, whether in paragraph 1 hereof or elsewhere, shall not
be deemed to be a commitment by Bank to make any loan or provide any financial
accommodation. In the event any one or more of the provisions of this Guaranty
shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions of this Guaranty shall
not in any way be affected or impaired thereby. If more than one person or
entity signs this Guaranty below, the liability of such persons or entities on
this Guaranty is joint and several, and all references to the singular in this
Guaranty also include the plural. In the event of termination, cancellation,
revocation or release of this Guaranty as to any one or more Guarantors, this
Guaranty shall continue in full force and effect with respect to the remaining
Guarantors. THIS GUARANTY SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty under seal as of
the date first above written.
ADDRESSES OF
EACH GUARANTOR: 5025 DERRICK JONES ROAD
SUITE 120
ATLANTA, GEORGIA 30349
GUARANTOR:
TIMELY NORTH, INC., a Georgia corporation
By: /s/Dennis A. Bakal
--------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
TRUCK-NET, INC., a Georgia corporation
By: /s/Dennis A. Bakal
--------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
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TIMELY TRANSPORTATION, INC., a Georgia corporation
By: /s/Dennis A. Bakal
-----------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
PTG, INC., a Georgia corporation
By: /s/Dennis A. Bakal
-----------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
/s/Dennis A. Bakal
--------------------------------------------------
DENNIS A. BAKAL (individually)
6
