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EXHIBIT 10.1
CREDIT AND SECURITY AGREEMENT
THIS CREDIT AND SECURITY AGREEMENT is being executed and entered into
as of the 16th day of March, 1999, by and among XXXX XXXXXXXX TRANSPORTATION
COMPANY, INC., an Alabama corporation, which conducts its business at Xxxxx 0,
Xxx 00, Xxxxxxx, Xxxxxxx 00000 ("BORROWER", whether one or more) and COMPASS
BANK, an Alabama state banking corporation, 000 X. Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000 ("BANK").
PREAMBLE
BORROWER has applied to BANK for, and BANK has agreed, upon the terms
and subject to the conditions herein set forth, to extend to BORROWER, a loan in
the amount of up to TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) (THE "LOAN")
the proceeds of which are to be made available to Borrower for use between the
date hereof and March 16, 2000 (the "ADVANCE PERIOD") for BORROWER to finance
the purchase of tractors and flatbed trailers to be used in BORROWER'S trucking
business (collectively, the "TRUCK EQUIPMENT").
AGREEMENT
NOW, THEREFORE, in consideration of the premises, the mutual
obligations of the parties as contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties, intending to be legally bound hereby, agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.01 "BORROWER'S LOAN ACCOUNT" means the account on the books
of BANK in which will be recorded loans and advances made by BANK to BORROWER
pursuant to this Agreement, payments made on such loans and other appropriate
debits and credits as provided by this Agreement.
Section 1.02 "COLLATERAL" means any and all property of BORROWER in
which BANK now has, by this Agreement, or by any other Loan Document acquires,
or hereafter acquires, a security interest.
Section 1.03 "EQUIPMENT" means all tangible personal property
including, without limitation, machinery, furniture and furnishings now owned or
hereafter acquired for use primarily in the business of BORROWER.
Section 1.04 "INDEBTEDNESS" means all indebtedness, liabilities and
obligations, matured or unmatured, liquidated or unliquidated, direct or
indirect, primary, secondary, absolute or contingent, and whether arising by
contract, operation of law or otherwise, including without limitation,
obligations to creditors (including without limitation BANK), for borrowed money
or the deferred purchase price of property or services, and all obligations
under real property leases and under leases of personal property.
Section 1.05 "INSOLVENCY" of BORROWER or any other person means that
there shall have occurred with respect to that person one or more of the
following events: dissolution, termination of existence, insolvency, business
failure,
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appointment of a receiver of 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 proceedings under any bankruptcy or insolvency laws, or any
laws relating to the relief of debtors, readjustment of indebtedness,
reorganization, composition or extension, by or against such person, or if any
action shall be taken for the purpose of effecting any of the foregoing.
Section 1.06 "LIABILITIES" means any and all liabilities of BORROWER to
BANK of every kind and description, direct or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising, regardless of how they
arise or by what agreement or instrument they may be evidenced or whether
evidenced by any agreement or instrument. "Liabilities" includes obligations to
perform acts and refrain from taking action as well as obligations to pay money.
Section 1.07 "LOAN DOCUMENTS" means this Agreement, the Note (as
defined in Section 2.04 hereof), the Security Agreement from BORROWER to BANK
dated as of the date hereof, and all other documents and instruments evidencing,
securing, guaranteeing, relating to, or executed or delivered in connection with
the Loan.
Section 1.08 UNDEFINED TERMS. Except as otherwise defined in this
Agreement, whether in this Article 1, or in a parenthetical or other reference
in this Agreement, accounting terms used herein shall have the meanings given to
them under generally accepted accounting principles, and terms defined in the
Alabama Uniform
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Commercial Code, as the same may be amended from time to time, shall have the
meanings given them in the Code.
ARTICLE 11
THE LOAN
Section 2.01 Loan. Subject to the terms and conditions hereof, during
the Advance Period provided that BANK has not demanded payment in full under the
Note and BORROWER shall not be in default hereunder or with respect to any other
Liability to BANK, the BANK will make advances under the Loan to BORROWER, or
directly to BORROWER'S suppliers, up to a maximum aggregate principal amount of
$10,000,000 to pay for BORROWER'S purchase of the Truck Equipment to be used as
Equipment in BORROWER'S business ("Advances"). BANK may, but shall not have any
obligation to, make any Advances hereunder at any time after or during which an
Event of Default (as defined herein) shall have occurred or exists.
Section 2.02 BORROWER'S LOAN ACCOUNT. All such Advances shall be
entered as debits in the BORROWER'S Loan Account. BANK may, if it so elects,
require each request for any Advance pursuant to this Agreement to be
accompanied by certification of the number, identity and continued use of Truck
Equipment purchased with the proceeds of the Loan, in form and substance
satisfactory to BANK. BANK shall also record in the BORROWER'S Loan Account, in
accordance with customary accounting practice, all other charges, expenses and
other items properly chargeable to BORROWER; all payments made by BORROWER on
account of
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Indebtedness evidenced by BORROWER'S Loan Account; and other appropriate debits
and credits. The debit balance of BORROWER'S Loan Account shall reflect the
amount of BORROWER'S Indebtedness to BANK from time to time by reason of
Advances and other appropriate charges hereunder.
Section 2.03 USE OF LOAN PROCEEDS. The Loan proceeds shall be used by
BORROWER to finance its purchase of the Truck Equipment.
Section 2.04 NOTE. Each Advance under the Loan shall be evidenced by a
separate promissory note (collectively, the "NOTE"), in form and substance
acceptable to BANK. Each Note shall bear interest from the date of the Advance
thereunder at the rate and calculated in the manner provided therein, and shall
be otherwise payable as set forth therein. Dates and amounts of Advances, and
payments received by BANK, shall be evidenced by entries upon the books and
records of BANK, and shall be reflected in monthly statements, which shall be
conclusive evidence of such dates and amounts of Advances, and payments.
Section 2.05 DURATION; EXTENSION. Availability of funds under the Loan
shall terminate on the last day of the Advance Period; provided, however, that
the parties recognize that they may wish to extend the expiration date by mutual
agreement to be negotiated prior to such expiration date. It is understood that
any extension may require a revision of certain provisions of this Agreement.
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ARTICLE III
SECURITY FOR LOAN
Section 3.01 SECURITY INTEREST OF BANK IN COLLATERAL. As security for
the payment and performance of all Liabilities, BANK shall have, and is hereby
granted a continuing security interest in the following Collateral, whether now
owned or existing or hereafter created, acquired or arising and wheresoever
located:
(a) (i) The Truck Equipment described on Exhibit "A" hereto
and (ii) all Truck Equipment or other Equipment and other personal property of
BORROWER purchased with the proceeds of the Loan;
(b) All goods, instruments, certificates or other documents of
title, policies and certificates of insurance, securities, chattel paper,
deposits, cash or other property owned by BORROWER or in which BORROWER has an
interest which are now or may hereafter be in the possession of BANK or as to
which BANK may now or hereafter control possession by documents of title or
otherwise;
(c) Proceeds and products (including tort and insurance
claims) of all of the foregoing.
Section 3.02 AFTER-ACQUIRED PROPERTY. No submission by BORROWER is
necessary to vest in BANK a security interest in hereafter created or acquired
Collateral, but, rather such title and security interest shall vest in BANK
immediately upon the creation or acquisition of any item of Collateral, without
the necessity for any other or further action by BORROWER or BANK.
Section 3.03 OTHER APPLICABLE LAW. If, by reason of location of
Collateral or otherwise, the creation, validity or perfection of security
interests provided for herein are governed by the law of a jurisdiction other
than Alabama, BORROWER shall
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take such steps and execute and deliver such papers as BANK may from time to
time request to comply with the Uniform Commercial Code, the Uniform Trust
Receipts Act, the Factors Lien Act or other laws of another state or states.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce BANK to enter into this Agreement, BORROWER represents
warrants as follows:
Section 4.01 ORGANIZATION AND AUTHORITY. Each BORROWER (a) is an
Alabama corporation which is duly organized, validly existing and in good
standing under the laws of the State of Alabama; (b) has all necessary corporate
power and authority, and possesses all licenses and permits as are required for
BORROWER to own its assets and conduct its business as now conducted or
presently proposed to be conducted; (c) has no subsidiaries other than Xxxx
Xxxxxxxx Truck and Tractor; and (d) is duly qualified and in good standing in
the State of Alabama and in every other jurisdiction wherein its ownership or
leasing of assets or conduct of its business makes such qualification necessary.
Section 4.02 BORROWER'S AUTHORIZATION. The execution, delivery and
performance of this Agreement, the Note, the Security Agreement, and the other
Loan Documents, the granting of the power of attorney under Section 8.03 hereof,
and the borrowing hereunder and under the Note, are within BORROWER'S corporate
powers and authority, have been duly and validly authorized by all necessary
corporate and
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other action including, without limitation, any necessary shareholder action,
are not in contravention of law or the terms of BORROWER'S Articles of
Incorporation, By-Laws or other incorporation documents, or of any indenture,
agreement or undertaking or any law, regulation, or order to which BORROWER is a
party or by which it is bound.
Section 4.03 ENFORCEABILITY. Upon execution and delivery hereof and
thereof, this Agreement, the Note, the Security Agreement, and the other Loan
Documents will constitute valid and binding obligations of the respective
parties thereto, enforceable in accordance with their respective terms.
Section 4.04 OWNERSHIP OF COLLATERAL. Except for the security interests
granted in connection herewith, or heretofore granted to BANK, BORROWER is, and
as to assets to be acquired after the date hereof, shall be, the owner of all
Collateral with respect to which it grants a security interest hereunder, free
from any lien, security interest or encumbrance, and BORROWER shall defend its
assets against all claims and demands of all persons at any time claiming the
same or any interest therein.
Section 4.05 OTHER COLLATERAL. At the time BORROWER pledges, sells,
assigns, or transfers to BANK any instrument, document of title, security,
chattel paper or other property or any interest therein, BORROWER shall be the
lawful owner thereof and shall have good right to pledge, sell, assign or
transfer the same; none of such property shall have been pledged, sold, assigned
or transferred to any person other than BANK or in any way encumbered; and
BORROWER shall defend the same against the lawful claims and demands of all
persons.
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Section 4.06 FINANCIAL INFORMATION. Subject to any limitations stated
therein or in connection therewith, all financial statements which have been or
may hereafter be furnished to BANK to induce it to enter into this Agreement, to
extend credit from time to time hereunder, or otherwise in connection herewith,
do or shall fairly represent the financial condition of BORROWER or other person
or entity reported on therein, as of the dates and, in the case of BORROWER, the
results of its operations for the periods for which the same are furnished, in
accordance with ,generally accepted accounting principles consistently applied,
and all other information, reports and other papers and dates furnished to BANK
are or shall be, at the time the same are so furnished, accurate and correct in
all material respects and complete insofar as completeness may be necessary to
give BANK a true and accurate knowledge of the subject matter. There has been no
material adverse change in the business, properties, prospects, or condition
(financial or otherwise) of the BORROWER since the dates of the most recent
financial statements provided to the BANK. BORROWER has good and marketable
title to all the properties and assets reflected on its balance sheet furnished
to BANK, free and clear of mortgages, pledges, liens, charges and other
encumbrances, other than encumbrances in favor of BANK and encumbrances securing
indebtedness reflected on such balance sheet.
Section 4.07 NO VIOLATIONS. BORROWER is not now in default under any
agreement evidencing an obligation for the payment of money, performance of a
service or delivery of goods, the demand for performance under which, or
acceleration which, or acceleration
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of the maturity of which, would render BORROWER insolvent or unable to meet its
other debts as they become due or conduct its business as usual.
Section 4.08 LITIGATION. There is no action, suit, or proceeding at law
or in equity or by or before any governmental instrumentality or other agency
now pending, or, to the knowledge of the BORROWER, threatened or in prospect
against or affecting the BORROWER or any properties or rights of the BORROWER,
which, if adversely determined, would (i) materially impair the right of the
BORROWER to carry on business substantially as now conducted or (ii) materially
and adversely affect the financial condition of the BORROWER. BORROWER is not
currently affected by any strike or other labor disturbance nor is BORROWER in
default in any material respect under any judgment, order, injunction, rule,
ruling, of any court or governmental commission, agency, or instrumentality.
ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.01 FINANCIAL STATEMENTS. BORROWER shall furnish or cause to
be furnished to BANK, (a) on a quarterly basis, within sixty (60) days after the
end of each quarter, internally prepared profit and loss statements for
BORROWER; and (b) on an annual basis, audited year-end financial statements
prepared by a certified public accountant acceptable to BANK. Statements
required under Section 5.01 (b) immediately preceding shall be provided as soon
as available after the end of the fiscal period reported on therein, but no
later than ninety (90) days after the end of such
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period. In addition, BORROWER shall furnish BANK, on an annual basis, year-end
financial statements on any guarantor of the Loan in a form acceptable to BANK,
as soon as available, but no later than 60 days after the end of each year.
Section 5.02 CERTIFICATIONS. All statements and reports required by
this Article V shall be certified as true and correct by the President or a
Vice-President of BORROWER, or in the case of Guarantor, by or on behalf of the
Guarantor.
Section 5.03 EXPENSES. BORROWER shall pay any and all taxes, charges
and expenses of every kind or description paid or incurred by BANK under or with
respect to the Loan or any Collateral therefor or the collection of or
realization upon the same. BORROWER hereby authorizes BANK to charge interest,
charges, taxes and expenses provided for herein to BORROWER'S Loan Account.
Section 5.04 INSURANCE. BORROWER shall have and maintain at all
times liability insurance and, with respect to the Collateral and other assets
of BORROWER, insurance against risks of fire, so-called extended coverage, and
other risks customarily insured against by companies engaged in similar business
to that of BORROWER, in amounts, containing such terms, in such form, for such
periods and written by such companies as may be satisfactory to BANK. Where
insurance covers Collateral for loans to BORROWER from BANK, such insurance
shall be payable to BANK and to BORROWER as their interests may appear, pursuant
to a long-form New York standard non-contributory mortgagee clause or
endorsement. All policies of insurance shall provide for ten (10) days' written
minimum cancellation notice to BANK. In the event of BORROWER'S failure to
provide and maintain insurance as herein provided, BANK
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may, at its option, provide such insurance and charge the amount thereof to the
BORROWER'S Loan Account or add the same to the principal balance of the Loan.
BORROWER shall furnish to BANK certificates or other evidence satisfactory to
BANK of compliance with the foregoing insurance provisions. Notwithstanding
anything to the contrary contained or implied herein, BORROWER may self-insure
its fleet of vehicles (including the Collateral) as to physical damage, but
shall obtain insurance against catastrophic loss (in excess of an aggregate of
$500,000) of Collateral and other assets. BORROWER shall provide BANK evidence
satisfactory to BANK the existence of such catastrophic insurance, which policy
of insurance shall name BANK as loss payee pursuant to a New York standard
non-contributory endorsement or clause. In the event of any loss with respect to
any item of Collateral, BORROWER will make an additional payment under the Loan
in an amount equal to the portion of the outstanding Loan balance representing
the purchase money advanced against the Collateral with respect to which such
loss has occurred.
Section 5.05 INFORMATION REGARDING COLLATERAL. BORROWER shall furnish
to BANK information adequate to identify and evaluate the Collateral at times
and in form and substance as may be requested by BANK.
Section 5.06 REGISTRATION AND TITLING. BORROWER shall cause all
Collateral that is required to be registered, to be properly registered in
BORROWER'S name, and will cause the title certificates for all Collateral to
reflect BORROWER'S ownership and BANK'S lien.
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Section 5.07 RECORDS REGARDING COLLATERAL. BORROWER shall give BANK
written notice of each location at which Collateral and records regarding
Collateral are or will be kept other than for temporary processing, storage or
like purposes. Except as such notice is given, and except as Collateral is moved
from place to place in the ordinary course of BORROWER'S trucking business, all
Collateral and records are and shall be kept at BORROWER'S address as it appears
in Section 10.04 of this Agreement.
Section 5.08 INSPECTION. BORROWER shall at all reasonable times and
from time to time allow BANK, by or through any of its officers, agents,
attorneys, or accountants, to examine, inspect or make extracts from BORROWER'S
books and records and to arrange for verification of Collateral, under
reasonable procedures and by reasonable methods, and shall do, make, execute and
deliver all such additional and further acts, things, deeds, assurances and
instruments as the BANK may require more completely to vest in and assure to the
BANK its rights hereunder or in any Collateral.
Section 5.09 TAXES. BORROWER will promptly pay or cause to be paid
all taxes, customs fees, and freight charges on the Collateral and will at all
times keep the Collateral free and clear of all liens and claims whatsoever,
other than the security interests granted hereby. BORROWER agrees to do and
cause to be done all things that the BANK may request to establish and maintain
a valid title and security interest in the Collateral, free of all other liens
and claims whatsoever, to secure the payment of the Liabilities. If such taxes
or other assessments remain unpaid after the date fixed for the payment of the
same, or if any lien shall be claimed which, in the opinion of the
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BANK, could create a valid obligation having priority over the rights of the
BANK in the Collateral, the BANK may, without notice to the BORROWER, pay such
taxes, assessments, charges or claims, and the BORROWER unconditionally promises
to reimburse BANK for any amounts so paid upon demand.
Section 5.10 CONTINUED EXISTENCE, PROTECTION OF PROPERTY, INSURANCE.
BORROWER shall do or cause to be done all that is necessary (a) to preserve its
existence and in keep in full force and effect all of its governmental permits,
licenses, charters, consents and franchises, and to comply with all applicable
laws; (b) to conduct and operate its business in a prudent and careful manner;
(c) to preserve its properties; and (d) subject to the limitation regarding
self-insurance in Section 6.04 hereof, to maintain adequate insurance with
insurance companies of recognized responsibility, including without limitation,
(i) insurance coverage to such extent and against such risks, including fire,
casualty, and theft, as is customary in BORROWER'S business, (ii) necessary
workmen's compensation insurance; (iii) such other insurance or bonds as may be
required by law or reasonably requested in writing by BANK; and (iv) pay all
taxes applicable to it or levied against any of its properties as and when the
same shall become due and payable.
Section 5.11 RECORDS. BORROWER shall keep or cause to be kept accurate
records concerning its business and shall maintain or cause to be maintained a
system of accounting and proper books of record and account in accordance with
general accepted accounting principles applicable to the particular entity, and
will set aside on its books all proper and adequate reserves for taxes,
depreciation, depletion,
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obsolescence, loan losses, amortization, contract cancellations, defaults, or
other breaches of contract, and otherwise as may be appropriate in accordance
with said principles.
Section 5.12 CERTIFICATES. On a quarterly basis, and at such other
times as BANK shall request, BORROWER shall supply to BANK a written certificate
as to the following:
(i) that there does not exist any default or Event of Default,
or any condition or event which, with the giving of notice or the
passage of time, or both, would constitute such an Event of Default,
under the Agreement, the Note, or any other Loan Documents;
(ii) that all representations, warranties and covenants
contained in this Agreement and the other Loan Documents remain true
and accurate through the date of such certificate, except as may be
noted and acceptable to BANK;
(iii) that all conditions precedent to BANK'S obligation to
make advances under the Loan have been and remain fully satisfied; and
(iv) that all of the Collateral is in good repair and useful
in BORROWER'S business.
Section 5.13 NOTICE OF ADVERSE EVENTS. BORROWER shall promptly notify
BANK of the filing of any notice, suit, claim, action, proceeding, or
investigation in or by any court or by any governmental authority in which an
adverse decision reasonably could be expected to have a material adverse effect
upon the BORROWER, and shall
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promptly notify BANK of the occurrence of any material adverse order, judgment,
settlement, determination, or other adverse event, or of any default or Event of
Default or any condition or event which, with the giving of notice or the
passage of time, or both, would constitute such an Event of Default, under this
Agreement or under any of the other Loan Documents. BORROWER also shall promptly
notify BANK of the occurrence of any other condition or event which could have a
material adverse effect upon it.
Section 5.14 YEAR 2000 COMPLIANCE. On or prior to the date hereof (the
"Compliance Date"), Borrower shall have taken all actions necessary to ensure
that the automated systems used by Borrower that are material to its operations
(collectively, "Mission-Critical Systems"), including, without limitation,
software, hardware and other data processing devices, shall not fail,
malfunction or produce incorrect results with respect to data, calculations and
other processing involving dates before, as of or after December 31, 1999,
regardless of the form the date data is received or processed (collectively
"Year 2000 Compliant" or "Year 2000 Compliance"). Without limiting the
generality of the foregoing, on or prior to the Compliance Date, Borrower shall
test and certify that its Mission-Critical Systems are Year 2000 Compliant in
accordance with commercially reasonable practices and industry standards.
Borrower agrees that upon the reasonable request of Bank, Borrower will make its
employees, consultants, premises, records and documentation available to Bank
with respect to Borrower's Year 2000 Compliance efforts.
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ARTICLE VI
NEGATIVE COVENANTS
BORROWER covenants and agrees that from the date hereof until payment
in full of the Loan, and any other indebtedness and Liabilities, and the
termination of this Agreement, unless BANK shall otherwise consent in writing,
BORROWER will not either directly or indirectly:
Section 6.01 CASH FLOWS-TO-CURRENT MATURITIES OF LONG-TERM DEBT. Cause
or allow the ratio of BORROWER'S cash flows-to-current maturities of long-term
debt to be less than 1.3:1. As used in this Section, "CASH FLOWS" means net
profits less dividends, plus lease expense and depreciation and any other
expenses which would be classified as non-cash expenses in accordance with
generally accepted accounting principles and "CURRENT MATURITIES OF LONG TERM
DEBT" means the outstanding principal balance of indebtedness and lease expense
due within twelve (12) months.
Section 6.02 CONSOLIDATED NET WORTH. Cause or allow BORROWER'S
Consolidated Tangible Net Worth to be less than $14,800,000. As used herein,
"CONSOLIDATED TANGIBLE NET WORTH" means an amount equal to the Shareholders'
equity of the BORROWER (including capital stock, capital surplus and retained
earnings, but excluding any unpaid amounts due for sale of stock) less (i) the
book value of any shares of common stock of the BORROWER held by the BORROWER
and treated as an asset in computing such stockholder's equity, (ii) all
unamortized debt costs, patents, tradenames, licenses, franchises, good will
and other intangible assets, (iii) the aggregate balance of loans, notes
receivable, accounts receivable and other
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advances to and or owing from BORROWER'S affiliates, subsidiaries, shareholders,
employees officers, directors or any other related entity, and (iv) taxes, the
payment of which has been deferred. All financial ratios in this Agreement shall
be determined on a combined basis in accordance with generally accepted
accounting principles applied on a consistent basis.
Section 6.03 NO ENCUMBRANCES ON COLLATERAL. BORROWER shall not pledge,
mortgage, sell, assign or create, or suffer to exist a security interest in
Collateral in favor of any person other than BANK.
Section 6.04 MANAGEMENT; OWNERSHIP. Cause or allow any material change
in the ownership or senior management of BORROWER, including without limitation
any change in the officers of the BORROWER at or above the level of its vice
president.
Section 6.05 DEBT-TO-TANGIBLE NET WORTH. Cause or allow the BORROWER'S
ratio of total debt (defined as all of BORROWER'S Indebtedness and Liabilities
to whomsoever the same may be owing, whether now or hereafter existing, created
or arising, absolute or contingent, direct or indirect, joint or several,
including without limitation, all indebtedness under the Loan)-to-Consolidated
Tangible Net Worth (as defined in Section 6.02 hereof) to be greater than 2:1.
Section 6.06 LOANS TO RELATED PARTIES. Cause or allow BORROWER'S loans
or other advances to BORROWER'S shareholders, officers, partnerships,
subsidiaries, affiliates, directors or other related entities to exceed
$2,000,000 at any time outstanding.
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ARTICLE VII
CONDITIONS
BANK'S obligation to make the Loan available to BORROWER, and to make
any advance thereunder, is subject to the full satisfaction of the following
conditions precedent:
Section 7.01 NO DEFAULT. There shall not exist any default or Event of
Default, or any condition or event which, after notice or lapse of time or both,
would constitute such an Event of Default hereunder or under any other Loan
Documents.
Section 7.02 OPINION OF COUNSEL. BANK shall have received from counsel
to BORROWER a favorable opinion in satisfactory scope and form as to all matters
reasonably requested by BANK.
Section 7.03 DELIVERY OF DOCUMENTS. Delivery to BANK of the purchase
orders and Certificates of Title for the Collateral to be purchased with the
proceeds of the requested advance, the duly-executed Note and Guaranty, and all
other documents or instruments which BANK shall require in connection with
making the Loan.
Section 7.04 TERMS AND CONDITIONS. Continued fulfillment and
satisfaction through the date hereof and as of the date of any requested advance
of all the terms, representations, warranties, conditions and covenants hereof.
Section 7.05 OFFICER'S CERTIFICATE. BANK shall have received a
certificate of the President or other officer authorized by resolution of
BORROWER stating that all representations and warranties contained in this
Agreement and all other Loan Documents are and remain true and accurate as of
the date of such advance and that
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there exists no default or Event of Default hereunder or under any other Loan
Document, or any condition or event which, with the giving of notice or the
passage of time, or both, would become an Event of Default hereunder or under
any other Loan Document.
ARTICLE VIII
DEFAULT AND REMEDIES ON DEFAULT
Section 8.01 EVENTS OF DEFAULT; Acceleration. At the option of BANK
and notwithstanding any time or credit allowed by any instrument evidencing any
of the Liabilities, any or all of the Liabilities of BORROWER or any other
person to BANK hereunder shall immediately become due and payable upon the
occurrence of any of the following events of default ("EVENTS OF DEFAULT"),
without notice or demand to BORROWER, Guarantor, or any other person: (a)
default in the payment or performance, when due or payable, of any of the
Liabilities of BORROWER or any other person or entity, or of any endorser or
Guarantor for any of the Liabilities of BORROWER or any other person or entity
to BANK or the occurrence of any Event of Default under any Loan Document; (b)
failure of BORROWER to pay any tax; (c) if any representation or warranty
contained herein is or becomes inaccurate or if BORROWER or Guarantor have made,
or hereafter make any misrepresentation to BANK for the purpose of obtaining
credit or an extension of credit; (d) failure of BORROWER to furnish or cause to
be furnished financial information or to permit or cause to be permitted the
inspection of books or records; (e) issuance of an injunction or
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attachment against property of BORROWER or any Guarantor; (f) calling of a
meeting of creditors, appointment of a committee of creditors or liquidating
agents, or offering of a composition or extension to creditors by, for or of
BORROWER or any endorser or Guarantor of any of the Liabilities of BORROWER to
BANK; (g) insolvency of BORROWER or any endorser or Guarantor of any of the
Liabilities of BORROWER to BANK; (h) such a material change in the condition or
affairs (financial or otherwise) of BORROWER or of any endorser or Guarantor of
any of the Liabilities of BORROWER to BANK as in the opinion of BANK impairs
BANK'S security or increases its risk; (i) failure by BORROWER or any Guarantor
to comply with any of the provisions of this Agreement; (j) failure to make any
payments required by this Agreement; (k) default shall be made with respect to
any Indebtedness (other than the Note) of the BORROWER or the Guarantor, when
due, or the performance of the other obligation incurred in connection with any
Indebtedness for borrowed money of the BORROWER, or the Guarantor, if the effect
of such default is to accelerate the maturity of such Indebtedness or to permit
the holder thereof to cause such Indebtedness to become due prior to its stated
maturity, or any such Indebtedness shall not be paid when due; or (1) if there
shall occur any default or Event of Default, or any condition or event which
with the giving of notice or the passage of time, or both, would become an Event
of Default, under, pursuant to or with respect to any Indebtedness or loan
transaction or any document or instrument evidencing, securing, guaranteeing, or
relating to any Indebtedness or loan transaction of BORROWER.
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Section 8.02 RIGHTS UPON DEFAULT. Upon the occurrence of any one or
more of the above Events of Default and at any time thereafter, such default not
having previously been cured, BANK shall have, in addition to all other rights
and remedies, the remedies of a secured party under the Alabama Uniform
Commercial Code, regardless whether the Code has been enacted in the
jurisdiction where rights or remedies are asserted, including without
limitation, the right to take possession of the Collateral, and for that purpose
BANK may, so far as BORROWER or Guarantor can give authority therefor, enter
upon any premises on which the Collateral may be situated and remove the same
therefrom or store the same on the premises pending disposition. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, BANK shall give to BORROWER at
least five (5) days' prior written notice of the time and place of any public
sale of Collateral or of the time after which any private sale or any other
intended disposition is to be made. Upon fifteen (15) days' prior written notice
to BORROWER, BANK may at any time in its discretion transfer any securities or
other property constituting Collateral into its own name or that of its nominee
and receive the income thereon and hold the same as security for Liabilities or
apply it on principal or interest due on Liabilities. Insofar as Collateral
shall consist of insurance policies, instruments, chattel paper, choices in
action or the like, BANK may demand, collect, receipt for,- settle, compromise,
adjust, xxx for, foreclose or realize upon Collateral, as BANK may determine,
whether or not Liabilities or Collateral are then due, and for the purpose of
realizing BANK'S rights therein, BANK may receive, open and dispose of
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mail addressed to BORROWER and endorse notes, checks, drafts, money orders,
documents of title or other evidences of payment, shipment or storage or any
form of Collateral on behalf of and in the name of BORROWER. The enumeration of
the foregoing rights is not intended to be exhaustive, and the exercise of any
right shall not preclude the exercise of any other rights, all of which shall be
cumulative. As against the obligations secured hereby, BORROWER hereby expressly
waives all claims and all rights to claim any exemptions, both as to personal
and real property, allowed or allowable under the Constitution or laws of the
United States, the State of Alabama or any other jurisdiction. Any notice to
BORROWER of sale, disposition or other intended action by BANK, required by law
to be given to BORROWER, sent to BORROWER at the address of BORROWER shown
hereinabove or at such other address of BORROWER as may from time to time be
shown on BANK'S records, at least five days prior to such action, shall
constitute reasonable notice to BORROWER.
Section 8.03 POWER OF ATTORNEY. BORROWER hereby requests, authorizes and
empowers Xxxxx X. Xxxxxxx, or any other officer or employee of BANK who may be
designated by BANK for that purpose to make, execute and file, any financing
statements, documents or certificates of title, or other documents, and to take
any and all such other steps as BANK deems necessary or desirable to perfect and
continue the perfection of BANK'S security interest in the Collateral. No
failure by BANK to exercise for any period the powers herein granted shall
operate or be construed as a waiver of BANK'S rights thereafter to exercise such
authorizations and powers. The foregoing power of attorney is coupled with an
interest and shall be irrevocable so long
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as any Liabilities or Indebtedness hereunder, under the Note, or under the other
Loan Documents remain outstanding.
Section 8.04 SET OFF. BANK hereby is given a continuing lien as
security for BORROWER'S obligations hereunder upon any and all moneys,
securities and other property of BORROWER, and the proceeds thereof, now or
hereafter held or received by or in transit to BANK from or for BORROWER,
whether for safekeeping, custody, pledge, transmission, collection or otherwise,
and also upon any and all deposit balances, general or special, and credits of
BORROWER with, and any and all claims of BORROWER against BANK at any time
existing, and upon an Event of Default hereunder, BANK may apply or set off the
same against the Liabilities hereby secured.
ARTICLE IX
MISCELLANEOUS
Section 9.01 WAIVERS. BORROWER hereby waives demand, notice, protest,
notice of acceptance of this Agreement, notice of loans made, credit extended,
Collateral received or delivered or other action taken in reliance hereon and
all other demands and notices of any description. With respect both to
Liabilities and Collateral, BORROWER assents to any extension or postponement of
the time of payment or any other indulgence, to any substitution, exchange or
release of any Collateral which may now or hereafter secure Liabilities, to the
addition or release of any party or person primarily or secondarily liable, to
the acceptance of partial payments hereon and to the settlement, compromise or
adjustment of any thereof, all
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in such manner and at such time or times as BANK may in its sole discretion deem
advisable. BANK shall have no duty as to the collection or protection of any
Collateral or any income thereon, nor as to the preservation of rights against
prior parties, nor as to the preservation of any rights pertaining thereto
beyond the safe custody thereof. BANK may exercise its rights with respect to
any Collateral without resorting or regard to other Collateral or sources of
reimbursement for Liabilities. BANK shall not be deemed to have waived any of
its rights upon or under Liabilities or Collateral unless such waiver is in
writing and signed by BANK. No delay or omission on the part of BANK in
exercising any right shall operate as a waiver of such right or any other right.
A waiver on any one occasion shall not be construed as a bar to or waiver of any
right on any future occasion. All rights and remedies of BANK with respect to
Liabilities or Collateral, whether evidenced hereby or by any other instrument,
shall be cumulative and may be exercised separately or concurrently.
Section 9.02 EXPENSES; PROCEEDS OF COLLATERAL. BORROWER shall pay to
BANK on demand any and all expenses, including reasonable attorneys' fees,
incurred or paid by BANK in collecting or otherwise protecting or enforcing or
attempting to collect, protect or enforce its rights upon or under Liabilities
or Collateral. After deducting all of said expenses, the residue of any proceeds
of collection or sale of Liabilities or Collateral shall be applied to the
payment of principal or interest on Liabilities, in such order of preference as
BANK may determine with proper allowance for interest on Liabilities not then
due being made, and any excess shall be returned to BORROWER and BORROWER shall
remain liable for any deficiency.
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Section 9.03 AMENDMENT. No modification or amendment of this
Agreement shall be effective unless placed in writing and duly executed by the
BORROWER and the BANK. By guaranteeing the Liabilities described herein,
Guarantor expressly agrees that BORROWER and BANK may, without notice to or
consent by Guarantor, modify or amend this Agreement. Neither party shall be
obligated in any respect to extend the termination date hereof.
Section 9.04 GENERAL. Any demand upon or notice that BANK may elect
to give to BORROWER and any notice required to be given to BANK shall be
effective three (3) days after the same has been deposited in the United States
mail, first class with postage prepaid and addressed to such party at the
following addresses, as applicable, if such party has notified BANK in writing
of a change of address, to the last address so notified:
IF TO BORROWER: Xxxx Xxxxxxxx Transportation
Company, Inc.
Xxxxx 0, Xxx 00
Xxxxxxx, Xxxxxxx 00000
IF TO BANK: Compass Bank
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: City Executive
with a copy to: Xxx Xxxxx
Vice President - Loan Administration
Compass Bank
P. 0. Xxx 00000
Xxxxxxxxxx, Xxxxxxx 00000
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Demands or notices addressed to BORROWER'S address at which BANK customarily
communicates with BORROWER, shall also be effective. If at any time or times by
assignment or otherwise BANK transfers any of the Liabilities or Collateral
therefor, such transfer shall include BANK'S power and rights under this
Agreement with respect to the Liabilities or Collateral transferred, and the
transferee shall become vested with said powers and rights whether or not they
are specifically referred to in the transfer. If and to the extent BANK retains
any of the Liabilities or Collateral, BANK will continue to have the rights and
powers herein set forth with respect thereto. This Agreement shall bind and
inure to the benefit of the parties hereto and their respective successors,
assigns, heirs, personal representatives, and estates; provided, however, that
BORROWER shall not assign or delegate any of its rights or obligations hereunder
without the express written consent of BANK. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original, but when
taken together shall constitute one agreement. This Agreement is being executed
under the seal of the parties hereto and is intended to constitute and have
effect as a sealed instrument according to law.
Section 9.05 Governing Law; Jurisdiction. This Agreement, the Note,
the Security Agreement and the other Loan Documents, and the rights and the
obligations of the parties hereunder and thereunder, shall be governed by and be
construed in accordance with the laws of the State of Alabama. BORROWER
acknowledges that the negotiation of the provisions of the Note, this Agreement,
the Security Agreement, and all other Loan Documents took place in the State of
Alabama; that all of such
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documents were executed in Jefferson County, Alabama, or if executed elsewhere,
will be or were delivered to BANK in said county and state subject to BANK'S
acceptance thereof in Birmingham, Jefferson County, Alabama, and that all of
such documents were or will be executed and delivered to BANK to induce BANK to
extend the Loan to BORROWER. BANK shall be under no obligation to give BORROWER
notice of acceptance of any Loan Documents for said documents and instruments to
become effective. BORROWER acknowledges further that the negotiation, execution
and delivery of this Agreement, the Note, the Security Agreement and the other
Loan Documents constitutes the transaction of business within the State of
Alabama and that any cause of action arising under any of said documents will be
a cause of action arising from such transaction of business. BORROWER hereby
submits itself to jurisdiction in the State of Alabama for any cause of action
or action arising out of or in connection with this Agreement, the Note, or any
of the other Loan Documents, and agrees that venue for any such action shall be
in Jefferson County, Alabama, and waives any and all rights under the laws of
any state to object to jurisdiction or venue within Jefferson County, Alabama.
Notwithstanding the foregoing, nothing contained in this Section 9.05 shall
prevent BANK from bringing any action or exercising any rights against BORROWER,
any security for the Loan or against any of BORROWER'S properties in any other
state or jurisdiction. Initiating any such action or proceeding or taking any
such action in any other state shall in no event constitute a waiver by BANK of
any of the foregoing.
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Section 9.06 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
covenants, agreements, representations, and warranties made herein and in the
certificates delivered pursuant hereto shall survive the making by the BANK of
the Loan herein contemplated and the execution and delivery to the BANK of the
Note evidencing such Loan and shall continue in full force and effect so long as
the Note is outstanding and unpaid. Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises, and
agreements by or on behalf of the BORROWER which are contained in this Agreement
shall bind the successors and assigns of BORROWER and inure to the benefit of
the successors and assigns of the BANK; provided, however, that BORROWER shall
not assign or delegate this Agreement, the Loan, or its rights, duties, or
obligations hereunder without the written consent of BANK.
Section 9.07 NO CONFLICT, ETC. No provision of this Agreement or of the
Note or the other Loan Documents shall be deemed in conflict with any other
provision thereof, and the BORROWER acknowledges that no such provisions or any
interpretation thereof shall be deemed to diminish the rights of the BANK, any
assignee, or the holder or holders of the Note under the terms and conditions or
any other provisions thereof. BANK may at its option exhaust its remedies
hereunder, under the Note, and under the other Loan Documents, either
concurrently or independently, and in such order as it may determine.
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Section 9.08 HEADINGS; UNDER SEAL; ENTIRE AGREEMENT; NO THIRD PARTY
BENEFICIARY. Article and section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement or be used to construe any provision hereof or for any other purpose.
This Agreement is intended to be under the seal of all parties hereto and to
have the effect of a sealed instrument in accordance with the law. This
Agreement, together with the other Loan Documents, embodies the entire agreement
and understanding between the parties, supersedes all prior agreements and
understandings related to the Loan, and may not be amended except by written
agreement between BORROWER and BANK. This Agreement shall not benefit, and may
not be relied upon by, any person other than the persons who sign this
Agreement. There are no third party beneficiaries to this Agreement or any
negotiations, statements, or representations related to this Agreement.
Section 9.09 NO PARTNERSHIP OR JOINT VENTURE. Notwithstanding anything
to the contrary herein contained or implied, BANK, by this Agreement, or by any
action pursuant thereto or hereto, shall not be deemed a partner, joint
venturer, or participant in the venture with BORROWER, and BORROWER hereby
indemnifies and agrees to defend and hold BANK harmless (including the payment
of reasonable attorneys' fees) from any and all damages resulting from such a
construction of the parties' relationship. The requirements herein, and the
restrictions imposed in this Agreement, are for the sole protection and benefit
of BANK.
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Section 9.10 INDEMNIFICATION. BORROWER shall indemnify and hold
harmless BANK from and against any and all claims, charges, losses, expenses and
costs, including reasonable attorneys' fees, resulting from any claims, actions
or proceedings in connection with the execution, delivery and performance of
this Agreement, the Note, and other Loan Documents. The indemnification provided
in this section shall survive the payment in full of the Loan.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed by their duly authorized officers as of the date
first set forth above.
BORROWER:
WITNESS: XXXX XXXXXXXX TRANSPORTATION
COMPANY, INC.
/s/ Xxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------- ------------------------------------
Its: Xxxxxxx X Xxxxxx - CFO/Exec VP
BANK:
WITNESS: COMPASS BANK
/s/ By: /s/ Xxxxx X. Xxxxxxx
----------------------------- ----------------------------------
Its: Xxxxx X. Xxxxxxx-City President
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