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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): March 2, 1998
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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 March 2, 1998, Professional Transportation Group Ltd., Inc., a
Georgia corporation (the "Company"), and its subsidiaries entered into an
Amended and Restated Commercial Loan Agreement (the "Agreement") with SouthTrust
Bank, N.A. ("SouthTrust"), whereby the Company amended, consolidated and
increased its loan facilities from SouthTrust creating a $9 million working
capital line of credit to the Company; which is in addition to the $3.7 million
capital expenditure line of credit already existing between the Company and
SouthTrust. 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 March 2,
1998, by and among the Company, Truck-Net, Inc., Timely
Transportation, Inc., PTG, Inc., Timely North, Inc. and
SouthTrust Bank, N.A.
10.2 Amended, Restated and Consolidated Commercial Revolving Note,
dated March 2, 1998, by and between the Company, Timely North,
Inc. and SouthTrust, N.A., in the original principal amount of
$9 million.
10.3 Reaffirmation of Guaranty dated March 2, 1998, by and among
the Company, Truck-Net, Inc., Timely Transportation, Inc.,
PTG, Inc., Dennis A. Bakal and SouthTrust Bank, N.A.
10.4 Reaffirmation of Guaranty, dated March 2, 1998, by and among
Truck-Net, Inc., Timely Transportation, Inc., PTG, Inc.,
Timely North, Inc., Dennis A. Bakal 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: March 3, 1998
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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 March 2, 1998, by
and among the Company, Truck-Net, Inc., Timely Transportation, Inc.,
PTG, Inc., Timely North, Inc. and SouthTrust Bank, N.A.
10.2 Amended, Restated and Consolidated Commercial Revolving Note, dated
March 2, 1998, by and between the Company, Timely North, Inc. and
SouthTrust, N.A., in the original principal amount of $9 million.
10.3 Reaffirmation of Guaranty dated March 2, 1998, by and among the
Company, Truck-Net, Inc., Timely Transportation, Inc., PTG, Inc.,
Dennis A. Bakal and SouthTrust Bank, N.A.
10.4 Reaffirmation of Guaranty, dated March 2, 1998, by and among Truck-Net,
Inc., Timely Transportation, Inc., PTG, Inc., Timely North, Inc.,
Dennis A. Bakal 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 March 2, 1998, 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.
"Base Rate" shall mean a floating rate per annum equal to the rate of
interest announced from time to time by Lender as its "base rate" (with each
change therein to be effective as of the date of such change). Each such rate
announced by Lender is a reference rate and does not necessarily represent the
lowest or best rate actually charged by it to any customer. Lender may make
commercial loans or other loans at rates of interest at, above or below such
reference rate. In the event Lender ceases to use its "base rate" as a standard,
Lender shall designate a comparable reference rate as a substitute therefor.
"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.
"Debt-to-Tangible Net Worth Ratio" shall mean, as of any particular
date, the ratio of Borrower's total liabilities as of such date to Borrower's
Tangible Net Worth as of such 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
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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
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.
"Libor Rate" shall mean 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.
"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.
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"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
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. AND TIMELY NORTH, INC. Borrowers Professional
Transportation Group Ltd., Inc.("Professional") and Timely North, Inc. ("Timely
North") may from time to time request from Bank, and Bank in its discretion may
extend to Professional and Timely North, a working capital line of credit in the
maximum amount of up to an aggregate principal sum
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outstanding equal to the face amount of an Amended, Restated and Consolidated
Commercial Revolving Note dated of even date herewith (said amount being
$9,000,000.00, and which note, together with any and all amendments thereto and
renewals thereof, are referred to as the "Revolving Note") made by Professional
and 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 Professional and 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 or as otherwise set forth in Paragraph 15
of this Agreement, which shall evidence Professional's and 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"). Professional and 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, Professional and
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 Professional and Timely North solely for their 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
or Timely North, 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 and Timely North; provided, however, that (A) prior to the issuance
of each letter of credit Professional and Timely North 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, Timely North and Bank, (C) prior
to the issuance of each letter of credit, Professional and Timely North 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 and Timely North would be
entitled to obtain a Revolving Loan hereunder, and (G) Professional's and Timely
North'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 and Timely North 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 and Timely North 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) 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 November 19, 1997 (said amount
being $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
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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;
(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.
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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 Borrower to Bank dated of even
date herewith and attached hereto as Schedule 6(e), 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 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
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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, to the best of Borrower's knowledge, 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:
(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 on a consolidated basis,
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. In addition to the quarterly Borrowing Base Certificate, Borrower
shall also provide Lender a Borrowing Base Certificate on a weekly basis.
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
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<PAGE> 8
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 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.
-8-
<PAGE> 9
(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.
(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, (iv) loans between the parties comprising
Borrower, and (v) loans and other financing arrangements relating to the
acquisition or replacement of vehicles, including trailers, described in a
letter from Borrower to Bank of even date herewith and attached hereto as
Schedule 8(a).
(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
-9-
<PAGE> 10
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) Except as otherwise expressly permitted in this Agreement, 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 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, 1998) 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
commencing March 31, 1998.
(c) Borrower's Fixed Charge Coverage shall be greater than 1.15 : 1.0,
measured at Borrower's fiscal year end (commencing December 31, 1998) and
calculated for the fiscal year then ended.
(d) Borrower shall have a fiscal year to date cumulative net profit,
measured at December 31, 1998 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
commencing March 31, 1998.
(f) Borrower shall pay Lender a fee of $2,000.00 for each month that
Borrower reports, on a consolidated basis, a year-to-date loss.
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
-10-
<PAGE> 11
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 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:
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<PAGE> 12
If to Bank, to: SouthTrust Bank, N.A.
One Georgia Center, 27th 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.
(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
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<PAGE> 13
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 Amended and Restated
Commercial Loan Agreement dated November 19, 1997, by and among Professional
Transportation Group, Ltd., a Georgia corporation, Truck/Net, Inc., a Georgia
corporation, Timely Transportation, Inc., a Georgia corporation, PTG, Inc., a
Georgia corporation, Timely North, Inc., a Georgia corporation and SouthTrust
Bank, N.A., a national banking association.
15. INTEREST CHARGED ON WORKING CAPITAL LINE OF CREDIT. During any fiscal
quarter of Borrower, interest will accrue on each advance made under the
Revolving Note evidencing the working capital line of credit (extended to
Professional and Timely North pursuant to Paragraph 2 (b) (i) of this Agreement)
at the rate per annum set forth below in relation to Borrower's Debt-to-Tangible
Net Worth Ratio for the previous fiscal quarter:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Debt-to-Tangible Net Worth Ratio Interest Rate
- ---------------------------------------------------------------------------------------------------
<S> <C>
Less than or equal to 1.5 to 1 Libor Rate plus 250 basis points
- ---------------------------------------------------------------------------------------------------
Greater than 1.50 to 1 but less than or equal to 2.00 to 1 Libor Rate plus 275 basis points
- ---------------------------------------------------------------------------------------------------
Greater than 2.00 to 1 but less than or equal to 2.50 to 1 Base Rate
- ---------------------------------------------------------------------------------------------------
Greater than 2.50 to 1 but less than or equal to 3.00 to 1 Base Rate plus one-quarter percent
- ---------------------------------------------------------------------------------------------------
Greater than 3.00 to 1 Base Rate plus one-half percent
- ---------------------------------------------------------------------------------------------------
</TABLE>
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 corporation
By: /s/ Dennis A. Bakal
--------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
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<PAGE> 14
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]
BANK:
- -----
SOUTHTRUST BANK, N.A., a national banking association
By: /s/ Barbara A. Gewert
---------------------------------------------
Barbara A. Gewert, Vice President
-14-
<PAGE> 1
EXHIBIT 10.2
AMENDED, RESTATED AND CONSOLIDATED COMMERCIAL REVOLVING NOTE
(Working Capital Line of Credit)
$9,000,000.00 Atlanta, Georgia March 2, 1998
FOR VALUE RECEIVED, the undersigned PROFESSIONAL TRANSPORTATION GROUP
LTD., INC., a Georgia corporation, and TIMELY NORTH, INC., a Georgia corporation
(hereinafter jointly, severally and collectively referred to as "Maker"),
promise 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 Nine Million and No/100 Dollars ($9,000,000.00), 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
per annum, and computed in such manner, as are specified in that certain Amended
and Restated Commercial Loan Agreement (hereinafter referred to as the "Loan
Agreement") of even date herewith among Payee, Maker, Truck Net, Inc., a Georgia
corporation, Timely Transportation, Inc., a Georgia corporation, and PTG, Inc.,
a Georgia corporation, and in strict accordance with the terms thereof, 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 in the Loan Agreement 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 the rate per annum set forth in the Loan Agreement.
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 April 1, 1998, and continuing on the
first day of each month thereafter until maturity. On June 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 in the Loan
Agreement 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 in the Loan
Agreement, 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 in the Loan Agreement.
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.
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
<PAGE> 2
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.
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.
-2-
<PAGE> 3
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.
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.
AMENDED, RESTATED, AND CONSOLIDATED REPLACEMENT NOTE. THIS NOTE IS AN
AMENDMENT, RESTATEMENT, AND CONSOLIDATION OF, AND REPLACES IN THEIR ENTIRETY,
THAT CERTAIN COMMERCIAL REVOLVING NOTE DATED NOVEMBER 19, 1997, MADE BY
PROFESSIONAL TRANSPORTATION GROUP LTD., INC. TO THE ORDER OF SOUTHTRUST BANK,
N.A. IN THE ORIGINAL PRINCIPAL AMOUNT OF TWO MILLION AND NO/100 DOLLARS
($2,000,000.00), AND THAT CERTAIN COMMERCIAL REVOLVING NOTE DATED NOVEMBER 19,
1997, MADE BY TIMELY NORTH, INC. TO THE ORDER OF SOUTHTRUST BANK, N.A. IN THE
ORIGINAL PRINCIPAL AMOUNT OF FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00) .
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]
TIMELY NORTH., INC.,
a Georgia corporation
By: /s/ Dennis A. Bakal
--------------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
-3-
<PAGE> 1
EXHIBIT 10.3
REAFFIRMATION OF GUARANTY
THIS REAFFIRMATION OF GUARANTY (hereinafter referred to as this
"Reaffirmation") is made and entered into as of the 2nd day of March, 1998, by
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 collectively referred to as "Guarantors"), for the benefit of
SOUTHTRUST BANK, N.A., a national banking association (hereinafter referred to
as "Lender").
BACKGROUND STATEMENT
Guarantors have previously executed and delivered that certain Guaranty
of Payment and Performance dated November 19, 1997, in favor of Lender
(hereinafter referred to as the "Guaranty"), pursuant to which they
unconditionally guaranteed to Lender the due and punctual payment and
performance of any and all "Indebtedness," as therein defined, of TIMELY NORTH,
INC., a Georgia corporation (hereinafter referred to as "Borrower"), owing to
Lender. This includes, without limitation, all obligations incurred pursuant to
the terms of that certain Commercial Revolving Note dated November 19,1997 made
by Borrower to the order of Lender in the original principal amount of
$5,000,000.00 (hereinafter referred to as the "Original Note"). Of even date
herewith, Borrower, together with Professional Transportation Group Ltd., Inc.,
has executed and delivered to Lender that certain Amended, Restated and
Consolidated Commercial Revolving Note in the original principal amount of
$9,000,000.00 (hereinafter referred to as the "New Note"), and Guarantors have
agreed to reaffirm the Guaranty and are executing this Reaffirmation for such
purpose.
REAFFIRMATION AND MODIFICATION
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00),
the foregoing recitals, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Guarantors hereby agrees as
follows:
1. Reaffirmation of Guaranty. Guarantors hereby reaffirm, ratify,
acknowledge, and agree to be bound by all the terms of the Guaranty.
2. Consent to Amendment. Guarantors hereby acknowledge and agree
that the Guaranty guarantees, without limitation, all of Borrower's payment and
other obligations under the New Note (which instrument Guarantors hereby
expressly consent to).
3. Release and Waiver. Guarantors hereby waive, release, and
discharge Lender, its participants, and all directors, officers, employees, and
agents of Lender and its participants, from any and all claims, demands,
actions, or causes of action arising out of or in any way relating to the
obligations evidenced by the Guaranty, and any documents, agreements, dealings,
or other matters connected with the obligations evidenced by the Guaranty,
including, without limitation, all known and unknown matters, claims,
transactions, or things occurring prior to the date of this Reaffirmation
related to the obligations evidenced by the Guaranty.
<PAGE> 2
4. Ratification. Except as herein expressly modified or amended,
all the terms and conditions of the Guaranty are hereby ratified, affirmed, and
approved.
5. No Novation. Guarantors acknowledge and agree that this
Reaffirmation shall not constitute a novation of the obligations or indebtedness
evidenced by the Guaranty.
6. Successors and Assigns. This Reaffirmation shall be binding
upon and inure to the benefit of Guarantors and Lender and their respective
heirs, successors and assigns, whether voluntary by act of the parties or
involuntary by operation of law.
IN WITNESS WHEREOF, this Reaffirmation has been executed under seal by
Guarantors, as of the day and year first above written.
GUARANTORS:
-----------
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]
-2-
<PAGE> 3
PTG, INC., a Georgia corporation
By: /s/ Dennis A. Bakal
----------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
/s/ Dennis A. Bakal (SEAL)
--------------------------------------
DENNIS A. BAKAL (individually)
-3-
<PAGE> 1
EXHIBIT 10.4
REAFFIRMATION OF GUARANTY
THIS REAFFIRMATION OF GUARANTY (hereinafter referred to as this
"Reaffirmation") is made and entered into as of the 2nd day of March, 1998, by
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
collectively referred to as "Guarantors"), for the benefit of SOUTHTRUST BANK,
N.A., a national banking association (hereinafter referred to as "Lender").
BACKGROUND STATEMENT
Guarantors have previously executed and delivered that certain Guaranty
of Payment and Performance dated November 19, 1997, in favor of Lender
(hereinafter referred to as the "Guaranty"), pursuant to which they
unconditionally guaranteed to Lender the due and punctual payment and
performance of any and all "Indebtedness," as therein defined, of PROFESSIONAL
TRANSPORTATION GROUP LTD., INC., a Georgia corporation (hereinafter referred to
as "Borrower"), owing to Lender. This includes, without limitation, all
obligations incurred pursuant to the terms of that certain Commercial Revolving
Note dated November 19,1997 made by Borrower to the order of Lender in the
original principal amount of $2,000,000.00 (hereinafter referred to as the
"Original Note"). Of even date herewith, Borrower, together with Timely North,
Inc., has executed and delivered to Lender that certain Amended, Restated and
Consolidated Commercial Revolving Note in the original principal amount of
$9,000,000.00 (hereinafter referred to as the "New Note"), and Guarantors have
agreed to reaffirm the Guaranty and are executing this Reaffirmation for such
purpose.
REAFFIRMATION AND MODIFICATION
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00),
the foregoing recitals, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Guarantors hereby agrees as
follows:
1. Reaffirmation of Guaranty. Guarantors hereby reaffirm, ratify,
acknowledge, and agree to be bound by all the terms of the Guaranty.
2. Consent to Amendment. Guarantors hereby acknowledge and agree
that the Guaranty guarantees, without limitation, all of Borrower's payment and
other obligations under the New Note (which instrument Guarantors hereby
expressly consent to).
3. Release and Waiver. Guarantors hereby waive, release, and
discharge Lender, its participants, and all directors, officers, employees, and
agents of Lender and its participants, from any and all claims, demands,
actions, or causes of action arising out of or in any way relating to the
obligations evidenced by the Guaranty, and any documents, agreements, dealings,
or other matters connected with the obligations evidenced by the Guaranty,
including, without limitation, all known and unknown matters, claims,
transactions, or things occurring prior to the date of this Reaffirmation
related to the obligations evidenced by the Guaranty.
<PAGE> 2
4. Ratification. Except as herein expressly modified or amended,
all the terms and conditions of the Guaranty are hereby ratified, affirmed, and
approved.
5. No Novation. Guarantors acknowledge and agree that this
Reaffirmation shall not constitute a novation of the obligations or indebtedness
evidenced by the Guaranty.
6. Successors and Assigns. This Reaffirmation shall be binding
upon and inure to the benefit of Guarantors and Lender and their respective
heirs, successors and assigns, whether voluntary by act of the parties or
involuntary by operation of law.
IN WITNESS WHEREOF, this Reaffirmation has been executed under seal by
Guarantors, as of the day and year first above written.
GUARANTORS:
-----------
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]
TIMELY TRANSPORTATION, INC., a Georgia
corporation
By: /s/ Dennis A. Bakal
----------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
-2-
<PAGE> 3
PTG, INC., a Georgia corporation
By: /s/ Dennis A. Bakal
----------------------------------------
Dennis A. Bakal, President
[CORPORATE SEAL]
/s/ Dennis A. Bakal (SEAL)
--------------------------------------
DENNIS A. BAKAL (individually)
-3-
