<PAGE>
EXHIBIT 10.3
<TABLE>
<CAPTION>
PROMISSORY NOTE
------------------------ ---------------- --------------- -------------- ---------- -------------- ----------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER INITIALS
$700,000.00 02-29-2000 02-28-2001 81345-01 104 JCC
------------------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***"has been omitted due to text length limitations.
------------------------------------------------------------------------------------------------------------------------------------
Borrower: TMP, INC. Lender: The Bank of Nashville
P.O. BOX 50338 401 Church Street
NASHVILLE, TN 37215-0338 Nashville, TN 37219
====================================================================================================================================
Principal Amount: Initial Rate: Date of Note:
$700,000.00 9.250% February 29, 2000
</TABLE>
PROMISE TO PAY. TMP, INC. ("Borrower") promises to pay to The Bank of
Nashville ("Lender"), or order, in lawful money of the United States of
America, the principal amount of Seven Hundred Thousand & 00/100 Dollars
($700,000.00) or so much as may be outstanding, together with interest on
the unpaid outstanding principal balance of each advance. interest shall be
calculated from the date of each advance until repayment of each advance.
The interest rate will not increase above 24.000%.
PAYMENT. Borrower will pay this loan in one payment of all outstanding
principal plus all accrued unpaid interest on February 28, 2001. In
addition, Borrower will pay regular monthly payments of all accrued unpaid
interest due as of each payment date, beginning March 28, 2000, with all
subsequent interest payments to be due on the same day of each month after
that. Unless otherwise agreed or required by applicable law, payments will
be applied first to accrued unpaid interest, then to principal, and any
remaining amount to any unpaid collection costs and late charges. The
annual interest rate for this Note is computed on a 365/360 basis; that is,
by applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual
number of days the principal balance is outstanding. Borrower will pay
Lender at Lender's address shown above or at such other place as Lender may
designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change
from time to time based on changes in an independent index which is the
Prime Rate as Published in the Wall Street Journal (the "Index"). The Index
is not necessarily the lowest rate charged by Lender on its loans. If the
Index becomes unavailable during the term of this loan, Lender may
designate a substitute Index after notice to Borrower. Lender will tell
Borrower the current Index rate upon Borrower's request. The interest rate
change will not occur more often than each Daily. Borrower understands that
Lender may make loans based on other rates as well. THE INDEX CURRENTLY IS
8.750% PER ANNUM. THE INTEREST RATE TO BE APPLIED TO THE UNPAID PRINCIPAL
BALANCE OF THIS NOTE WILL BE AT A RATE OF 0.500 PERCENTAGE POINTS OVER THE
INDEX, RESULTING IN AN INITIAL RATE OF 9.250% PER ANNUM. NOTWITHSTANDING
THE FOREGOING, THE VARIABLE INTEREST RATE OR RATES PROVIDED FOR IN THIS
NOTE WILL BE SUBJECT TO THE FOLLOWING MINIMUM AND MAXIMUM RATES. NOTICE:
Under no circumstances will the interest rate on this Note be less than
6.000% per annum or more than (except for any higher default rate shown
below) the lesser of 24.000% per annum or the maximum rate allowed by
applicable law. Notwithstanding the above provisions, the maximum increase
or decrease in the interest rate at any one time on this loan will not
exceed 2.000 percentage points.
PREPAYMENT; MINIMUM INTEREST CHARGE. In any event, even upon full
prepayment of this Note, Borrower understands that Lender is entitled to a
minimum interest charge of $7.50. Other than Borrower's obligation to pay
any minimum interest charge, Borrower may pay without penalty all or a
portion of the amount owed earlier than it is due. Early payments will not,
unless agreed to by Lender in writing, relieve Borrower of Borrower's
obligation to continue to make payments of accrued unpaid interest. Rather,
early payments will reduce the principal balance due. Borrower agrees not
to send Lender payments marked "paid in full," "without recourse," or
similar language. If Borrower sends such a payment, Lender may accept it
without losing any of Lender's rights under this Note, and Borrower will
remain obligated to pay any further amount owed to Lender. All written
communications concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes "payment in
full" of the amount owed or that is tendered with other conditions or
limitations or as full satisfaction of a disputed amount must be mailed or
delivered to: The Bank of Nashville, 401 Church Street, Nashville, TN
37219.
LATECHARGE. If a payment is 15 days or more late, Borrower will be charged
5.000% of the unpaid portion of the regularly scheduled payment.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, at Lender's option, and if permitted by applicable law, Lender
may add any unpaid accrued interest to principal and such sum will bear
interest therefrom until paid at the rate provided in this Note (including
any increased rate). Upon default, Lender, at its option, may, if permitted
under applicable law, increase the variable interest rate on this Note to
24.000% per annum. In no event will the effective total interest rate on
this Note be greater than the rate permitted by applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event
of Default") under this Note:
PAYMENT DEFAULT. Borrower fails to make any payment when due under
this Note.
OTHER DEFAULTS. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Note or in
any of the related documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement
between Lender and Borrower.
DEFAULT IN FAVOR OF THIRD PARTIES. Borrower or any Grantor defaults
under any loan, extension of credit, security agreement, purchase or
sales agreement, or any other agreement, in favor of any other
creditor or person that may materially affect any of Borrower's
property or Borrower's ability to repay this Note or perform
Borrower's obligations under this Note or any of the related
documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Note or the related documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false
or misleading at any time thereafter.
INSOLVENCY. The dissolution or termination of Borrower's existence as
a going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the
benefit of creditors, any type of credit workout, or the commencement
of any proceeding under bankruptcy or insolvency laws by or against
Borrower.
<PAGE>
PROMISSORY NOTE
(Continued) Page 2
================================================================================
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by
any governmental agency against any collateral securing the loan. This
includes a garnishment of any of Borrower's accounts, including
deposit accounts, with Lender. However, this Event of Default shall
not apply if there is a good faith dispute by Borrower as to the
validity or reasonableness of the claim which is the basis of the
creditor or forfeiture proceeding and if Borrower gives Lender written
notice of the creditor or forfeiture proceeding and deposits with
Lender monies or a surety bond for the creditor or forfeiture
proceeding, in an amount determined by Lender, in its sole discretion,
as being an adequate reserve or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the indebtedness or any Guarantor
dies or becomes incompetent, or revokes or disputes the validity of,
or liability under, any guaranty of the indebtedness.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent
(25%) or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of this Note is impaired.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, and
then Borrower will pay that amount.
ATTORNEY'S FEES; EXPENSES. Lender may hire or pay someone else to help
collect the loan if Borrower does not pay. Borrower will pay Lender that
amount. This includes, subject to any limits under applicable law, Lender's
attorney's fees and Lender's legal expenses, whether or not there is a
lawsuit, including attorneys' fees, expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction), and
appeals. If not prohibited by applicable law, Borrower also will pay any
court costs, in addition to all other sums provided by law.
JURY WAIVER. Lender and Borrower hereby waives the right to any jury trial in
any action, proceeding, or counterclaim brought by either Lender or Borrower
against the other.
GOVERNING LAW. This Note will be governed by, construed and enforced in
accordance with federal law and the laws of the State of Tennessee. This Note
has been accepted by Lender in the State of Tennessee.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request
to submit to the jurisdiction of the courts of the State of Tennessee, in the
county in which Borrower's following address is located: P.O. BOX 50338,
NASHVILLE, TN 37215-0338.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $10.00 if Borrower
makes a payment on Borrower's loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower may open
in the future. However, this does not include any IRA or Keogh accounts, or
any trust accounts for which setoff would be prohibited by law. Borrower
authorizes Lender, to the extent permitted by applicable law, to charge or
setoff all sums owing on the indebtedness against any and all such accounts.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances
under this Note, as well as directions for payment from Borrower's accounts,
may be requested orally or in writing by Borrower or by an authorized person.
Lender may, but need not, require that all oral requests be confirmed in
writing. Borrower agrees to be liable for all sums either: (A) advanced in
accordance with the instructions of an authorized person or (B) credited to
any of Borrower's accounts with Lender. The unpaid principal balance owing on
this Note at any time may be evidenced by endorsements on this Note or by
Lender's internal records, including daily computer print-outs. Lender will
have no obligation to advance funds under this Note if: (A) Borrower or any
guarantor is in default under the terms of this Note or any agreement that
Borrower or any guarantor has with Lender, including any agreement made in
connection with the signing of this Note; (B) Borrower or any guarantor
ceases doing business or is insolvent; (C) any guarantor seeks, claims or
otherwise attempts to limit, modify or revoke such guarantor's guarantee of
this Note or any other loan with Lender; or (D) Borrower has applied funds
provided pursuant to this Note for purposes other than those authorized by
Lender.
IMAGED DOCUMENTS. This Note and all documents related to this Note
(collectively, the "Documents") will be scanned into an optical retrieval
system and the original documents may be destroyed. By signing this Note, you
agree that a copy from the optical retrieval system of any of the Documents
shall have the same legal force and effect as an original and can be used in
the place of any original in all circumstances and for all purposes,
including but not limited to negotiation, collection, legal proceedings or
authentication.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower,
and upon Borrower's heirs, personal representatives, successors and assigns,
and shall inure to the benefit of Lender and Lender's successor sand assigns.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person
who signs, guarantees or endorses this Note, to the extent allowed by law,
waive presentment, demand for payment, and notice of dishonor. Upon any
change in the terms of this Note, and unless otherwise expressly stated in
writing, no party who signs this Note, whether as maker, guarantor,
accommodation maker or endorser, shall be released from liability. All such
parties agree that Lender may renew or extend (repeatedly and for any length
of time) this loan or release any party or guarantor or collateral; or
impair, fail to realize upon or perfect Lender's security interest in the
collateral; and take any other action deemed necessary by Lender without the
consent of or notice to anyone. All such parties also agree that Lender may
modify this loan without the consent of or notice to anyone other than the
party with whom the modification is made. The obligations under this Note are
joint and several.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISION. BORROWER AGREES
TO THE TERMS OF THE NOTE.
<PAGE>
PROMISSORY NOTE
(Continued) Page 2
<TABLE>
<CAPTION>
================================================================================
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
TMP, INC.
<S> <C>
By:/S/ M. TERRY TURNER By: /S/ HUGH M. QUEENER
--------------------------------------------- ----------------------------------------------------------
M. TERRY TURNER, President & CEO of TMP, Inc. HUGH M. QUEENER, Chief Administrative Officer of TMP, INC.
================================================================================
</TABLE>
<PAGE>
CORPORATE RESOLUTION TO BORROW / GRANT COLLATERAL
<TABLE>
<CAPTION>
------------------------ ---------------- --------------- -------------- ---------- -------------------------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER INITIALS
$700,000.00 02-29-2000 02-28-2001 81345-01 104 JCC
------------------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
------------------------------------------------------------------------------------------------------------------------------------
Borrower: TMP, INC. Lender: The Bank of Nashville
P.O. BOX 50338 401 Church Street
NASHVILLE, TN 37215-0338 Nashville, TN 37219
====================================================================================================================================
</TABLE>
WE, THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE CORPORATION'S EXISTENCE. The complete and correct name of the
Corporation is TMP, INC. ("Corporation"). The Corporation is a corporation
for profit which is, and at all times shall be, duly organized, validly
existing, and in good standing under and by virtue of the laws of the State
of Tennessee. The Corporation is duly authorized to transact business in
all other states in which the Corporation is doing business, having
obtained all necessary filings, governmental licenses and approvals for
each state in which the Corporation is doing business. Specifically, the
Corporation is, and at all times shall be, duly qualified as a foreign
corporation in all states in which the failure to so qualify would have a
material adverse effect on its business or financial condition. The
Corporation has the full power and authority to own its properties and to
transact the business in which it is presently engaged or presently
proposed to engage. The Corporation maintains an office at P.O. BOX 50338,
NASHVILLE, TN 37215-0338. Unless the Corporation has designated otherwise
in writing, the principal office is the office at which the Corporation
keeps its books and records. The Corporation will notify Lender of any
change in the location of the Corporation's principal office. The
Corporation shall do all things necessary to preserve and to keep in full
force and effect its existence, rights and privileges, and shall comply
with all regulations, rules, ordinances, statutes, orders and decrees of
any governmental or quasi-governmental authority or court applicable to the
Corporation and the Corporation's business activities.
RESOLUTIONS ADOPTED. At a meeting of the Directors of the Corporation, or
if the Corporation is a close corporation having no Board of Directors then
at a meeting of the Corporation's shareholders, duly called and held on
FEBRUARY 29, 2000, at which a quorum was present and voting, or by other
duly authorized action in lieu of a meeting, the resolutions set forth in
this Resolution were adopted.
OFFICERS. The following named persons are officers of TMP, INC.:
<TABLE>
<CAPTION>
NAMES TITLES AUTHORIZED ACTUAL SIGNATURES
----- ------ ---------- -----------------
<S> <C> <C> <C>
M. TERRY TURNER President & CEO Y x /S/ M. TERRY TURNER
--------------------------------------------------
ROBERT A. MCCABE, JR. Chairman of Board Y x /S/ ROBERT A. MCCABE
--------------------------------------------------
HUGH M. QUEENER Chief Administrative Officer Y x /S/ HUGH M. QUEENER
--------------------------------------------------
</TABLE>
ACTIONS AUTHORIZED. Any two (2) of the authorized persons listed above may enter
into any agreements of any nature with Lender, and those agreements will bind
the Corporation. Specifically, but without limitation, any two (2) of such
authorized persons are authorized, empowered, and directed to do the following
for and on behalf of the Corporation:
BORROW MONEY. To borrow from time to time from Lender, on such terms as may
be agreed upon between the Corporation and Lender, such sum or sums of
money as in their judgment should be borrowed, without limitation.
EXECUTE NOTES. To execute and deliver to Lender the promissory note or
notes, or other evidence of the Corporation's credit accommodations, on
Lender's forms, at such rates of interest and on such terms as may be
agreed upon, evidencing the sums of money so borrowed or any of the
Corporation's indebtedness to Lender, and also to execute and deliver to
Lender one or more renewals, extensions, modifications, refinancings,
consolidations, or substitutions for one or more of the notes, any portion
of the notes, or any other evidence of credit accommodations.
GRANT SECURITY. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender any property now or hereafter
belonging to the Corporation or in which the Corporation now or hereafter
may have an interest, including without limitation all real property and
all personal property (tangible or intangible) of the Corporation, as
security for the payment of any loans or credit accommodations so obtained,
any promissory notes so executed (including any amendments to or
modifications, renewals, and extensions of such promissory notes), or any
other or further indebtedness of the Corporation to Lender at any time
owing, however the same may be evidenced. Such property may be mortgaged,
pledged, transferred, endorsed, hypothecated or encumbered at the time such
loans are obtained or such indebtedness is incurred, or at any other time
or times, and may be either in addition to or in lieu of any property
theretofore mortgaged, pledged, transferred, endorsed, hypothecated or
encumbered.
EXECUTE SECURITY DOCUMENTS. To execute and deliver to Lender the forms of
mortgage, deed of trust, pledge agreement, hypothecation agreement, and
other security agreements and financing statements which Lender may require
and which shall evidence the terms and conditions under and pursuant to
which such liens and encumbrances, or any of them, are given; and also to
execute and deliver to Lender any other written instruments, any chattel
paper, or any other collateral, of any kind or nature, which Lender may
deem necessary or proper in connection with or pertaining to the giving of
the liens and encumbrances. Notwithstanding the foregoing, any one of the
above authorized persons may execute, deliver, or record financing
statements.
NEGOTIATE ITEMS. To draw, endorse, and discount with Lender all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness
payable to or belonging to the Corporation or in which the Corporation may
have an interest, and either to receive cash for the same or to cause such
proceeds to be credited to the Corporation's account with Lender, or to
cause such other disposition of the proceeds derived therefrom as they may
deem advisable.
<PAGE>
CORPORATE RESOLUTION TO BORROW / GRANT COLLATERAL
(Continued) Page 2
================================================================================
FURTHER ACTS. In the case of liens of credit, to designate additional or
alternate individuals as being authorized to request advances under such
lines, and in all cases, to do and perform such other acts and things, to
pay any and all fees and costs, and to execute and deliver such other
documents and agreements, including agreements waiving the right to a trial
by jury, as the officers may in their discretion deem reasonably necessary
or proper in order to carry into effect the provisions of this Resolution.
ASSUMED BUSINESS NAMES. The Corporation has filed or recorded all documents or
filings required by law relating to all assumed business names used by the
Corporation. Excluding the name of the Corporation, the following is a complete
list of all assumed business names under which the Corporation does business:
NONE.
NOTICES TO LENDER. The Corporation will notify Lender in writing at Lender's
address shown above (or such other addresses as Lender may designate from time
to time) prior to any (A) change in the Corporation's name, (B) change in the
Corporation's assumed business name(s), (C) change in the management of the
Corporation, (D) change in the authorized signer(s), (E) change in the
Corporation's principal office address, (F) conversion of the Corporation to a
new or different type of business entity, or (G) change in any other aspect of
the Corporation that directly or indirectly relates to any agreements between
the Corporation and Lender. No change in the Corporation's name will take effect
until after Lender has been notified.
CERTIFICATION CONCERNING OFFICERS AND RESOLUTIONS. The officers named above are
duly elected, appointed, or employed by or for the Corporation, as the case may
be, and occupy the positions set opposite their respective names. This
Resolution now stands of record on the books of the Corporation, is in full
force and effect, and has not been modified or revoked in any manner whatsoever.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Resolution and
performed prior to the passage of this Resolution are hereby ratified and
approved. This Resolution shall be continuing, shall remain in full force and
effect and Lender may rely on it until written notice of its revocation shall
have been delivered to and received by Lender at Lender's address shown above
(or such addresses as Lender may designate from time to time). Any such notices
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
IN TESTIMONY WHREOF, We have hereunto set our hand, affixed the seal of the
Corporation and attest that the signatures set opposite the names listed above
are their genuine signatures.
We each have read all the provisions of this Resolution, and we each personally
and on behalf of the Corporation certify that all statements and representations
made in this Resolution are true and correct. This Corporate Resolution to
Borrow / Grant Collateral is dated February 29, 2000.
CERTIFIED TO AND ATTESTED BY:
CORPORATE By: /S/ HUGH M. QUEENER
----------------------------
Authorized Signer
SEAL By:
----------------------------
Authorized Signer
NOTE: If the officers signing this Resolution are designated by the Foregoing
document as one of the officers authorized to act on the Corporation's behalf,
it is advisable to have this Resolution signed by at least one non-authorized
officer of the Corporation.
================================================================================
<PAGE>
<TABLE>
<CAPTION>
COMMERCIAL GUARANTY
---------------------- ------------- -------------- ------------- --------- -------------- ------------- -------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER JCC INITIALS
204
------------------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit
the applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length
limitations.
------------------------------------------------------------------------------------------------------------------------------------
Borrower: TMP, INC. Lender: The Bank of Nashville
P.O. BOX 50338 401 Church Street
NASHVILLE, TN 37215-0338 Nashville, TN 37219
Guarantor: [Name]
[Address]
================================================================================
</TABLE>
AMOUNT OF GUARANTY. This is a guaranty of payment of 100.000% of the Note,
including without limitation the principal Note amount of Seven Hundred
Thousand & 00/100 Dollars ($700,000.00).
GUARANTY. For good and valuable consideration, ___________ ("Guarantor")
absolutely and unconditionally guarantees and promises to pay to The Bank
of Nashville ("Lender") or its order, in legal tender of the United States
of America, 100.000% of the Indebtedness (as that term is defined below) of
TMP, INC. ("Borrower") to Lender on the terms and conditions set forth in
this Guaranty. Guarantor agrees that Lender, in its sole discretion, may
determine which portion of Borrower's indebtedness to Lender is covered by
Guarantor's percentage guaranty.
MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty
shall not exceed at any one time 100.000% of the amount of the indebtedness
described herein, plus all costs and expenses of (A) enforcement of this
Guaranty and (B) collection and sale of any collateral securing this
Guaranty.
The above limitation on liability is not a restriction on the amount of the
Indebtedness of Borrower to Lender either in the aggregate or at any one
time. If Lender presently holds one or more guaranties, or hereafter
receives additional guaranties from Guarantor, Lender's rights under all
guaranties shall be cumulative. This Guaranty shall not (unless
specifically provided below to the contrary) affect or invalidate any such
other guaranties. Guarantor's liability will be Guarantor's aggregate
liability under the terms of this Guaranty and any such other unterminated
guaranties.
INDEBTEDNESS GUARANTEED. The indebtedness guaranteed by this Guaranty
includes the Note, including (a) all principal, (b) all interest, (c) all
late charges, (d) all loan fees and loan charges, and (e) all collection
costs and expenses relating to the Note or to any collateral for the Note.
Collection costs and expenses include without limitation all of Lender's
attorneys' fees.
DURATION OF GUARANTY. This Guaranty will take effect when received by
Lender without the necessity of any acceptance by Lender, or any notice to
Guarantor or to Borrower, and will continue in full force until all
Indebtedness shall have been fully and finally paid and satisfied and all
of Guarantor's other obligations under this Guaranty shall have been
performed in full. Release of any other guarantor or termination of any
other guaranty of the Indebtedness shall not affect the liability of
Guarantor under this Guaranty. A revocation Lender receives from any one or
more Guarantors shall not affect the liability of any remaining Guarantors
under this Guaranty. THIS GUARANTY COVERS A REVOLVING LINE OF CREDIT AND IT
IS SPECIFICALLY ANTICIPATED THAT FLUCTUATIONS WILL OCCUR IN THE AGGREGATE
AMOUNT OF INDEBTEDNESS OWING FROM BORROWER TO LENDER. GUARANTOR
SPECIFICALLY ACKNOWLEDGES AND AGREES THAT FLUCTUATIONS IN THE AMOUNT OF
INDEBTEDNESS, EVEN TO ZERO DOLLARS ($0.00), SHALL NOT CONSTITUTE A
TERMINATION OF THIS GUARANTY. GUARANTOR'S LIABILITY UNDER THIS GUARANTY
SHALL TERMINATE ONLY UPON (A) TERMINATION IN WRITING BY BORROWER AND LENDER
OF THE LINE OF CREDIT, (B) PAYMENT OF THE INDEBTEDNESS IN FULL IN LEGAL
TENDER, AND (C) PAYMENT IN FULL IN LEGAL TENDER OF ALL OF GUARANTOR'S OTHER
OBLIGATIONS UNDER THIS GUARANTY.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without
notice or demand and without lessening Guarantor's liability under this
Guaranty, from time to time: (A) to make one or more additional secured or
unsecured loans to Borrower, to lease equipment or other goods to Borrower,
or otherwise to extend additional credit to Borrower; (B) to alter,
compromise, renew, extend, accelerate, or otherwise change one or more
times the time for payment or other terms of the Indebtedness or any part
of the Indebtedness, including increases and decreases of the rate of
interest on the Indebtedness; extensions may be repeated and may be for
longer than the original loan term; (C) to take and hold security for the
payment of this Guaranty or the Indebtedness, and exchange, enforce, waive,
subordinate, fail or decide not to perfect, and release any such security,
with or without the substitution of new collateral; (D) to release,
substitute, agree not to sue, or deal with any one or more of Borrower's
sureties, endorsers, or other guarantors on any terms or in any manner
Lender may choose; (E) to determine how, when and what application of
payments and credits shall be made on the Indebtedness; (F) to apply such
security and direct the order or manner of sale thereof, including without
limitation, any nonjudicial sale permitted by the terms of the controlling
security agreement or deed of trust, as Lender in its discretion may
determine; (G) to sell, transfer, assign, or grant participations in all or
any part of the Indebtedness; and (H) to assign or transfer this Guaranty
in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants to Lender that (A) no representations or agreements of any kind
have been made to Guarantor which would limit or qualify in any way the
terms of this Guaranty; (B) this Guaranty is executed at Borrower's request
and not at the request of Lender; (C) Guarantor has full power, right and
authority to enter into this Guaranty; (D) the provisions of this Guaranty
do not conflict with or result in a default under any agreement or other
instrument binding upon Guarantor and do not result in a violation of any
law, regulation, court decree or order applicable to Guarantor; (E)
Guarantor has not and will not, without the prior written consent of
Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise
dispose of all or substantially all of Guarantor's assets, or any interest
therein; (F) upon Lender's request, Guarantor will provide to Lender
financial and credit information in form acceptable to Lender, and all such
financial information which currently has been, and all future financial
information which will be provided to Lender is and will be true and
correct in all material respects and fairly present Guarantor's financial
condition as of the dates the financial information is provided; (G) no
material adverse change has occurred in Guarantor's financial condition
since the date of the most recent financial statements provided to Lender
and no event has occurred which may materially adversely affect Guarantor's
financial condition; (H) no litigation, claim, investigation,
administrative proceeding or similar action (including those for unpaid
taxes) against Guarantor is pending or threatened; (I) Lender has made no
representation to Guarantor as to the creditworthiness of Borrower; and (J)
Guarantor has established adequate means of obtaining from Borrower on a
continuing basis information regarding Borrower's financial condition.
Guarantor agrees to keep adequately informed from such means of any facts,
events, or circumstances which might in any way affect Guarantor's risks
under this Guaranty, and Guarantor further agrees that, absent a request
for information, Lender shall have no obligation to disclose to Guarantor
any information or documents acquired by Lender in the course of its
relationship with Borrower.
<PAGE>
COMMERCIAL GUARANTY
(Continued) PAGE 2
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GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor
waives any right to require Lender (A) to continue lending money or to
extend other credit to Borrower; (B) to make any presentment, protest,
demand, or notice of any kind, including notice of any nonpayment of the
Indebtedness or of any nonpayment related to any collateral, or notice of
any action or nonaction on the part of Borrower, Lender, any surety,
endorser, or other guarantor in connection with the Indebtedness or in
connection with the creation of new or additional loans or obligations; (C)
to resort for payment or to proceed directly or at once against any person,
including Borrower or any other guarantor; (D) to proceed directly against
or exhaust any collateral held by Lender from Borrower, any other
guarantor, or any other person; (E) to give notice of the terms, time, and
place of any public or private sale of personal property security held by
Lender from Borrower or to comply with any other applicable provisions of
the Uniform Commercial Code; (F) to pursue any other remedy within Lender's
power; or (G) to commit any act or omission, of any kind, or at any time,
with respect to any matter whatsoever.
In addition to the waivers set forth above, if now or hereafter Borrower is
or shall become insolvent and the Indebtedness shall not at all times until
paid be fully secured by collateral pledged by Borrower, Guarantor hereby
forever waives and fives up in favor of Lender and Borrower and Borrower's
respective successors, any claim or right to payment Guarantor may now have
or hereafter have or acquire against Borrower, by subrogation or otherwise,
so that at no time shall Guarantor be or become a "creditor" of Borrower
within the meaning of 11 U.S.C. Section 547(b), or any successor provision
of the Federal bankruptcy laws.
Guarantor also waives any and all rights or defenses arising by reason of
(A) any "one action" or "anti-deficiency" law or any other law which may
prevent Lender from bringing any action, including a claim for deficiency,
against Guarantor, before or after Lender's commencement or completion of
any foreclosure action , either judicially or by exercise of a power of
sale; (B) any election of remedies by Lender which destroys or otherwise
adversely affects Guarantor's subrogation rights or Guarantor's rights to
proceed against Borrower for reimbursement, including without limitation,
any loss of rights Guarantor may suffer by reason of any law limiting,
qualifying, or discharging the Indebtedness; (C) any disability or other
defense of Borrower, of any other guarantor, or of any other person, or by
reason of the cessation of Borrower's liability from any cause whatsoever,
other than payment in full in legal tender, of the Indebtedness; (D) any
right to claim discharge of the Indebtedness on the basis of unjustified
impairment of any collateral for the Indebtedness; (E) any statue of
limitation, if at any time any action or suit brought by Lender against
Guarantor is commenced there is outstanding Indebtedness of Borrower to
Lender which is not barred by any applicable statute of limitations; or (F)
any defenses given to guarantors at law or in equity other than actual
payment and performance of the Indebtedness. If payment is made by
Borrower, whether voluntarily or otherwise, or by any third party, on the
Indebtedness and thereafter Lender is forced to remit the amount of that
payment to Borrower's trustee in bankruptcy or to any similar person under
any federal or state bankruptcy law or law for the relief of debtors, the
Indebtedness shall be considered unpaid for the purpose of enforcement of
this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of
setoff, counterclaim, counter demand, recoupment or similar right, whether
such claim, demand or right may be asserted by the Borrower, the Guarantor,
or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and
agrees that each of the waivers set forth above is made with Guarantor's
full knowledge of its significance and consequences and that, under the
circumstances, the waivers are reasonable and not contrary to public policy
or law. If any such waiver is determined to be contrary to any applicable
law or public policy, such waiver shall be effective only to the extent
permitted by law or public policy.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the
Indebtedness of Borrower to Lender, whether now existing or hereafter
created, shall be prior to any claim that Guarantor may now have or
hereafter acquire against Borrower, whether or not Borrower becomes
insolvent. Guarantor hereby expressly subordinates any claim Guarantor may
have against Borrower, upon any account whatsoever, to any claim that
Lender may now or hereafter have against Borrower. In the event of
insolvency and consequent liquidation of the assets of Borrower, through
bankruptcy, by an assignment for the benefit of creditors, by voluntary
liquidation, or otherwise, the assets of Borrower applicable to the payment
of the claims of both Lender and Guarantor shall be paid to Lender and
shall be first applied by Lender to the Indebtedness of Borrower to Lender.
Guarantor does hereby assign to Lender all claims which it may have or
acquire against Borrower or against any assignee or trustee in bankruptcy
of Borrower; provided however, that such assignment shall be effective only
for the purpose of assuring to Lender full payment in legal tender of the
Indebtedness. If Lender so requests, any notes or credit agreements now or
hereafter evidencing any debts or obligations of Borrower to Guarantor
shall be marked with a legend that the same are subject to this Guaranty
and shall be delivered to Lender. Guarantor agrees, and Lender hereby is
authorized, in the name of Guarantor, from time to time to execute and file
financing statements and continuation statements and to execute such other
documents and to take such other actions as Lender deems necessary or
appropriate to perfect, preserve and enforce its rights under this
Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part
of this Guaranty:
AMENDMENTS. This Guaranty, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Guaranty. No alteration of or
amendment to this Guaranty shall be effective unless given in writing
and signed by the party or parties sought to be charged or bound by
the alteration or amendment.
ATTORNEYS' FEES; EXPENSES. Guarantor agrees to pay upon demand all of
Lender's costs and expenses, including attorneys' fees and Lender's
legal expenses, incurred in connection with the enforcement of this
Guaranty. Lender may hire or pay someone else to help enforce this
Guaranty, and Guarantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and
legal expenses whether or not there is a lawsuit, including attorneys'
fees and legal expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and
any anticipated post-judgment collection services. Guarantor also
shall pay all court costs and such additional fees as may be directed
by the court.
CAPTION HEADINGS. Caption headings in this Guaranty are for
convenience purposes only and are not to be used to interpret or
define the provisions of this Guaranty.
GOVERNING LAW. This Guaranty will be governed by, construed and
enforced in accordance with federal law and the laws of the State of
Tennessee. This Guaranty has been accepted by Lender in the State of
Tennessee.
CHOICE OF VENUE. If there is a lawsuit, Guarantor agrees upon Lender's
request to submit to the jurisdiction of the courts of the State of
Tennessee, in the county in which Borrower's following address is
located: P.O. BOX 50338, NASHVILLE, TN 37215-0338.
INTEGRATION. Guarantor further agrees that Guarantor has read and
fully understands the terms of this Guaranty; Guarantor has had the
opportunity to be advised by Guarantor's attorney with respect to this
Guaranty; the Guaranty fully reflects Guarantor's intentions and parol
evidence is not required to interpret the terms of this Guaranty.
Guarantor hereby indemnifies and holds Lender harmless from all
losses, claims, damages, and costs (including Lender's attorneys'
fees) suffered or incurred by Lender as a result of any breach of
Guarantor of the warranties, representations and agreements of this
paragraph.
<PAGE>
COMMERCIAL GUARANTY
(Continued) PAGE 3
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INTERPRETATION. In all cases where there is more than one Borrower or
Guarantor, then all words used in this Guaranty in the singular shall
be deemed to have been used in the plural where the context and
construction so require; and where there is more than one Borrower
named in this Guaranty or when this Guaranty is executed by more than
one Guarantor, the words "Borrower" and "Guarantor" respectively shall
mean all and any one or more of them. The words "Guarantor" "Borrower"
and "Lender" include the heirs, successors, assigns, and transferees of
each of them. If a court finds that any provision of this Guaranty is
not valid or should not be enforced, that fact by itself will not mean
that the rest of this Guaranty will not be valid of enforced.
Therefore, a court will enforce the rest of the provisions of this
Guaranty even if a provision of this Guaranty may be found to be
invalid or unenforceable. If any one or more of Borrower or Guarantor
are corporations, partnerships, limited liability companies, or similar
entities, it is not necessary for Lender to inquire it. The powers of
Borrower or Guarantor or of the officers, directors, partners,
managers, or agents acting or purporting to act on their behalf, and
any Loan Indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Guaranty.
NOTICES. Any notice required to be given under this Guaranty shall be
in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law),
when deposited with a nationally recognized overnight courier, or, if
mailed, when deposited in the United States mail, as first class,
certified or registered mail postage prepaid, directed to the addresses
shown near the beginning of this Guaranty. Any party may change its
address for notices under this Guaranty by giving formal written notice
to the other parties, specifying that the purpose of the notice is to
change the party's address. For notice purposes, Guarantor agrees to
keep Lender informed at all times of Guarantor's current address.
Unless otherwise provided or required by law, if there is more than one
Guarantor, any notice given by Lender to any Guarantor is deemed to be
notice given to all Guarantors.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any
rights under this Guaranty unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Guaranty shall
not prejudice or constitute a waiver of Lender's right otherwise to
demand strict compliance with that provision or any other provision of
this Guaranty. No prior waiver by Lender, nor any course of dealing
between Lender and Guarantor, shall constitute a waiver of any of
Lender's rights or of any of Guarantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Guaranty, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this
Guaranty on transfer of Guarantor's interest, this Guaranty shall be
binding upon and inure to the benefit of the parties, their successors
and assigns.
WAIVE JURY. Lender and Guarantor hereby waive the right to any jury
trial in any action, proceeding, or counterclaim brought by either
Lender or Borrower against the other.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Guaranty. Unless specifically stated to the contrary,
all references to dollar amounts shall mean amounts in lawful money of the
United States of America. Words and terms used in the singular shall include the
plural, and the plural shall include the singular, as the context may require.
Words and terms not otherwise defined in this Guaranty shall have the meanings
attributed to such terms in the Uniform Commercial Code:
BORROWER. The word "Borrower" means TMP, INC., and all other persons
and entities signing the Note in whatever capacity.
GUARANTOR. The word "Guarantor" means each and every person or entity
signing this Guaranty, including without limitation ____________.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to
Lender, including without limitation a guaranty of all or part of the
Note.
INDEBTEDNESS. The word "Indebtedness" means Borrower's indebtedness to
Lender as more particularly described in this Guaranty.
LENDER. The word "Lender" means The Bank of Nashville, its successors
and assigns.
NOTE. The word "Note" means the promissory note dated February 29,
2000, in the original principal amount of $700,000.00 from Borrower to
Lender, together with all renewals of, extensions of, modifications
of, refinancings of, consolidations of, and substitutions for the
promissory note or agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection
with the indebtedness.
GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL
GUARANTY AND GUARANTOR AGREES TO ITS TERMS. THIS COMMERCIAL GUARANTY IS DATED
FEBRUATY 29, 2000. GUARANTOR:
x
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[Guarantor's Name], individually
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