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EXHIBIT 10.24
LOAN DOCUMENTS MODIFICATION AGREEMENT
(January 15, 2000)
THIS LOAN DOCUMENTS MODIFICATION AGREEMENT (hereinafter referred to as
this "Amendment") is made and entered into as of the 15th day of January, 2000,
by and among PROFESSIONAL TRANSPORTATION GROUP LTD., INC., a Georgia
corporation, and TIMELY NORTH, INC., a Georgia corporation (hereinafter
collectively referred to as "Borrower"), TRUCK-NET, INC., a Georgia
corporation, TIMELY TRANSPORTATION, INC., a Georgia corporation, PTG, INC., a
Georgia corporation, and XXXXXX X. XXXXX, a Georgia resident (hereinafter
collectively referred to as the "PTG Guarantors"), U.S. TRUCKING, INC., a
_________ corporation, and LOGISTICS MANAGEMENT, LLC, a ___________ limited
liability company (hereinafter collectively referred to as the "Logistics
Guarantors," and together with each PTG Guarantor, hereinafter collectively
referred to as the "Guarantors"), and SOUTHTRUST BANK, N.A., a national banking
association (hereinafter referred to as "Lender").
BACKGROUND STATEMENT
Borrower and Lender are parties to that certain Amended, Restated and
Consolidated Commercial Revolving Note dated March 2, 1998, in the original
principal amount of $9,000,000.00 (hereinafter referred to as the "Note", and
the loan evidenced thereby as the "Loan"). The Note is secured by (a) that
certain Amended and Restated General Security Agreement from Borrower and
Guarantors, as "Debtor" therein, to Lender, as "Secured Party" therein, dated
November 19, 1997 (hereinafter referred to as the "Security Agreement"), and
(b) all of the "Loan Documents," as that term is defined in that certain
Amended and Restated Commercial Loan Agreement dated March 2, 1998 (hereinafter
referred to as the "Loan Agreement"). Certain payment and performance
obligations of Borrower provided for in the Note, the Security Agreement, and
the other Loan Documents are guaranteed by PTG Guarantors pursuant to separate
Guaranty of Payment and Performance, each dated November 19, 1997 (hereinafter
each referred to as a "PTG Guaranty"). Certain payment and performance
obligations of Borrower provided for in the Note, the Security Agreement, and
the other Loan Documents are guaranteed by the Logistics Guarantors pursuant to
that certain Guaranty of Payment and Performance dated January 15, 2000
(hereinafter referred to as the "Logistics Guaranty," and together with each
PTG Guaranty, hereinafter collectively referred to as the "Guaranty,"). The
Loan Documents have previously been amended pursuant to that certain Loan
Documents Modification Agreement dated June 30, 1998, that certain Loan
Documents Modification Agreement dated September 15, 1998, that certain Loan
Documents Modification Agreement dated October 31, 1998, that certain Loan
Documents Modification Agreement dated December 31, 1998, that certain Loan
Documents Modification Agreement dated May 31, 1999, that certain Loan
Documents Modification Agreement dated September 30, 1999, that certain Loan
Documents Modification Agreement dated October 31, 1999, and that certain Loan
Documents Modification Agreement dated November 30, 1999. Borrower and Lender
have agreed to amend the Note and all of the other Loan Documents, Guarantors
have each agreed to reaffirm their Guaranty, and the parties hereto are
entering into this Amendment to evidence their agreements.
AGREEMENT
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, Borrower,
Guarantors and Lender do hereby agree as follows:
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1. LOAN BALANCE. The foregoing recitals are true and correct and are
incorporated herein by reference. Borrower and Lender acknowledge and agree
that as of January 4, 2000, the outstanding principal balance of the Note is
Six Million Three Hundred Sixty-Five Thousand Seven Hundred Forty-Two and
30/100 Dollars ($6,365,742.30).
2. MODIFICATION OF NOTE. The terms of the Note are hereby modified and
amended, effective as January 15, 2000, by deleting the principal and interest
payment schedule set forth in the Note in the paragraph titled "Payment
Schedule" and replacing it with the following:
"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 March 30, 2000, all unpaid principal, plus
accrued and unpaid interest, shall be due and payable in full."
The purpose of this modification is to extend the maturity date of the Loan to
March 30, 2000.
3. RATIFICATION; EXPENSES. Except as herein expressly modified or
amended, all the terms and conditions of the Note are hereby ratified,
affirmed, and approved. In consideration of Lender agreeing to extend the
maturity date of the Note, Borrower agrees to pay all fees and expenses
incurred in connection with this Amendment.
4. MODIFICATION OF LOAN DOCUMENTS. (a) As of the date hereof, Borrower
and Guarantors hereby reaffirm and restate each and every warranty and
representation set forth in the Loan Documents. The terms of the Loan Documents
are hereby modified and amended, effective as of the date hereof, so that any
reference in any of the Loan Documents (including, without limitation, the Loan
Agreement) to the Note shall refer to the Note as herein amended.
(b) The definition of "Borrowing Base" set forth in paragraph 1 of the
Loan Agreement is deleted in its entirety and replaced with the following:
"Borrowing Base" shall mean eighty percent (80%) of Eligible
Accounts; provided, however, if prior to February 15, 2000 Bank
provides Borrower with a written notice indicating that the
results of an audit of Borrower's Eligible Accounts being
performed by or on behalf of Bank require, in Bank's sole and
absolute discretion, the Borrowing Base to be a different percent
of Eligible Accounts (which may be greater than or less than
eighty percent [80%]), then as of the date of said notice to
Borrower, Borrowing Base shall mean that percent of Eligible
Accounts set forth in said notice to Borrower."
(c) Paragraph 7(c) of the Loan Agreement is modified by deleting the
second sentence thereof, which presently reads "In addition to the quarterly
Borrowing Base Certificate and aging of Borrower's accounts receivable,
Borrower shall also provide Lender a Borrowing Base Certificate on a weekly
basis and an aging of Borrower's accounts receivable dated the 2nd and the 16th
of each calendar month, together with acceptable supporting documentation
enabling Bank to determine the amount of Eligible Accounts" and replacing it
with the following:
"Borrower shall also provide Bank with a Notice of Revolving
Credit Advances on a daily basis, and a Borrowing Base Certificate
and an aging of Borrower's accounts receivable on a weekly basis
(said weekly Borrowing Base Certificate
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and aging of accounts receivable to be provided to Bank each
Monday and reflect all activities through the prior Wednesday),
which Borrowing Base Certificate and accounts receivable aging
shall also include acceptable supporting documentation enabling
Bank to determine the amount of Eligible Accounts."
5. GUARANTOR'S REAFFIRMATION. The undersigned Guarantors hereby
ratify, confirm, reaffirm and covenant that the Guaranty which they have
executed is validly existing and binding against them under the terms of such
Guaranty. Guarantors hereby reaffirm and restate, as of the date hereof, all
covenants, representations and warranties set forth in the Guaranty.
6. NO DEFENSES; RELEASE. For purposes of this Paragraph 6, the terms
"Borrower Parties" and "Lender Parties" shall mean and include Borrower and
Guarantors, and Lender, respectively, and each of their respective
predecessors, successors and assigns, and each past and present, direct and
indirect, parent, subsidiary and affiliated entity of each of the foregoing,
and each past and present employee, agent, attorney-in-fact, attorney-at-law,
representative, officer, director, shareholder, partner and joint venturer of
each of the foregoing, and each heir, executor, administrator, successor and
assign of each of the foregoing; references in this paragraph to "any" of such
parties shall be deemed to mean "any one or more" of such parties; and
references in this sentence to "each of the foregoing" shall mean and refer
cumulatively to each party referred to in this sentence up to the point of such
reference. Borrower hereby acknowledges, represents and agrees: that Borrower
has no defenses, setoffs, claims, counterclaims or causes of action of any kind
or nature whatsoever with respect to the Note and the other Loan Documents or
the indebtedness evidenced and secured thereby, or with respect to any other
documents or instruments now or heretofore evidencing, securing or in any way
relating to the Loan, or with respect to the administration or funding of the
Loan, or with respect to any other transaction, matter or occurrence between
any of the Borrower Parties and any Lender Parties or with respect to any acts
or omissions of any Lender Parties (all of said defenses, setoffs, claims,
counterclaims or causes of action being hereinafter referred to as "Loan
Related Claims"); that, to the extent that Borrower may be deemed to have any
Loan Related Claims, Borrower does hereby expressly waive, release and
relinquish any and all such Loan Related Claims, whether or not known to or
suspected by Borrower; that Borrower shall not institute or cause to be
instituted any legal action or proceeding of any kind based upon any Loan
Related Claims; and that Borrower shall indemnify, hold harmless and defend all
Lender Parties from and against any and all Loan Related Claims and any and all
losses, damages, liabilities, costs and expenses suffered or incurred by any
Lender Parties as a result of any assertion or allegation by any Borrower
Parties of any Loan Related Claims or as a result of any legal action related
thereto. Borrower hereby reaffirms and restates, as of the date hereof, all
covenants, representations and warranties set forth in the Loan Documents.
7. NO NOVATION. Borrower and Lender hereby acknowledge and agree that
this Amendment shall not constitute a novation of the indebtedness evidenced by
the Loan Documents, and further that the terms and provisions of the Loan
Documents shall remain valid and in full force and effect except as may be
hereinabove modified and amended.
8. NO WAIVER OR IMPLICATION. Borrower hereby agrees that nothing
herein shall constitute a waiver by Lender of any default, whether known or
unknown, which may exist under the Note or any other Loan Document. Borrower
hereby further agrees that no action, inaction or agreement by Lender,
including, without limitation, any extension, indulgence, waiver, consent or
agreement of modification which may have occurred or have been granted or
entered into (or which
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may be occurring or be granted or entered into hereunder or otherwise) with
respect to nonpayment of the Loan or any portion thereof, or with respect to
matters involving security for the Loan, or with respect to any other matter
relating to the Loan, shall require or imply any future extension, indulgence,
waiver, consent or agreement by Lender. Borrower hereby acknowledges and agrees
that Lender has made no agreement, and is in no way obligated, to grant any
future extension, indulgence, waiver or consent with respect to the Loan or any
matter relating to the Loan.
9. NO RELEASE OF COLLATERAL. Borrower further acknowledge and agree
that this Agreement shall in no way occasion a release of any collateral held
by Lender as security to or for the Loan, and that all collateral held by
Lender as security to or for the Loan shall continue to secure the Loan.
10. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of Borrower, Guarantors and Lender and their respective
heirs, successors and assigns, whether voluntary by act of the parties or
involuntary by operation of law.
11. AUTHORITY. By executing this Amendment as hereinafter provided,
Xxxxxx X. Xxxxx hereby certifies that he is the President of each Borrower and
is duly authorized to execute this Amendment on behalf of each Borrower.
IN WITNESS WHEREOF, this Amendment has been duly executed under seal
by Borrower, Guarantors and Lender, as of the day and year first above written.
BORROWER:
PROFESSIONAL TRANSPORTATION GROUP LTD.,
INC., a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
TIMELY NORTH, INC., a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
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GUARANTORS:
TRUCK-NET, INC., a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
TIMELY TRANSPORTATION, INC., a Georgia
corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
/s/ Xxxxxx X. Xxxxx
---------------------------------------(SEAL)
XXXXXX X. XXXXX
PTG, INC., a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
U.S. TRUCKING, INC., a _________ corporation
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Xxxxxxx Xxxx, Chairman
By: /s/ Xxx Xxxxxx
-----------------------------------
Xxx Xxxxxx, President
[CORPORATE SEAL]
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LOGISTICS MANAGEMENT, LLC, a ___________
limited liability company
By: /s/ Xxxxxxx Xxxx
-----------------------------------(SEAL)
-------------------------, Manager
LENDER:
SOUTHTRUST BANK, N.A., a national banking
association
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
Vice President
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