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Exhibit 10.26
LOAN DOCUMENTS MODIFICATION AGREEMENT
(December 31, 1998)
THIS LOAN DOCUMENTS MODIFICATION AGREEMENT (hereinafter referred to as
this "Amendment") is made and entered into as of the 31st day of December, 1998,
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 "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 Guarantors pursuant to separate Guaranty of Payment
and Performance, each dated November 19, 1997 (hereinafter each referred to as a
"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, and that certain
Loan Documents Modification Agreement dated October 31, 1998. 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:
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 December 31, 1998, the outstanding principal balance of the Note is
Six Million Six Hundred Seventy-Six Thousand Two Hundred Eighty-Eight and 93/100
Dollars ($6,676,288.93).
2. MODIFICATION OF NOTE. The terms of the Note are hereby
modified and amended, effective as December 31, 1998, 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:
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"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 May 31, 1999, 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
May 31, 1999.
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 Loan Agreement is further modified and amended, effective
as of the date hereof, as follows:
(i) The definition of "Eligible Accounts" set forth in
paragraph 1 of the Agreement is amended by adding to the end thereof
the following:
"Notwithstanding any other provision of this
Agreement to the contrary, Eligible Accounts shall
not include accounts shown on any Borrowing Base
Certificate delivered on or after February 2, 1999 as
"To Be Invoiced" where the account to be invoiced
results from a transaction occurring more than ninety
(90) days prior to the date of the Borrowing Base
Certificate on which it is shown."
(ii) Paragraph 9 of the Agreement is deleted in its
entirety and replaced with the following:
"9. FINANCIAL COVENANTS. Borrower covenants and
agrees that from and after the date hereof, and so
long as the Obligations remain unpaid or this
Agreement remains in effect, that:
(a) Borrower's Tangible Net Worth, as shown on
its financial statements for the period ended
September 30, 1998, shall equal or exceed One Million
Three Hundred Fifty Thousand and No/100 Dollars
($1,350,000.00) and shall increase by seventy-five
percent (75%) of net income and one hundred percent
(100%) of the amount of any Borrower-issued
debentures converted to stock measured at the end of
each fiscal quarter commencing December 31, 1998.
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(b) The ratio of Borrower's total liabilities to
its Tangible Net Worth shall be less than 14.0 : 1.0,
measured at the end of the fiscal quarters ending
September 30, 1998 and December 31, 1998, and shall
be less than 12.0 : 1.0, measured at the end of each
fiscal quarter commencing March 31, 1999.
(c) Borrower's Fixed Charge Coverage shall be
greater than 1.15 : 1.0, measured at the end of each
fiscal quarter commencing December 31, 1998 and
calculated for the four (4) fiscal quarters then
ended.
(d) Borrower shall have a fiscal year to date
cumulative net profit, measured at December 31, 1998
and at each fiscal quarter end thereafter.
(e) The ratio of Borrower's current assets to
its current liabilities shall not be less than
1.2:1.0, as of the end of any fiscal quarter of
Borrower commencing December 31, 1998.
(f) Borrower shall pay Lender a fee of $2,500.00
for each month that Borrower reports, on a
consolidated basis, a year-to-date loss."
(iii) Paragraph 6(a) of the Agreement is amended by adding
"(except Timely North, Inc.)" after the word "Obligor" on the first
line thereof. The purpose of this amendment is to acknowledge that as
of the date hereof Timely North, Inc. is not in good standing under the
laws of the State of Georgia.
(c) Paragraph 4(c) of the Security Agreement provides Lender with
the right to require Borrower to notify all account debtors or obligors on all
"Accounts" that all payments are to be made directly to Lender's "lockbox," as
therein defined. The Security Agreement further provides that "Upon request of
Secured Party, Debtor agrees immediately to notify any or all account debtors
and obligors to make payment directly to Secured Party or to such lockbox and to
place Secured Party's or such lockbox's address on Debtor's invoices and
statements as the address to which payment should be made." Lender hereby
exercises that right and requests that such notification be given to all account
debtors, so that effective as of February 28, 1999, all payments on Accounts
shall be made to Lender's designated lockbox.
(d) The notice address for Borrower in each Loan Document is
amended to read as follows:
000 Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
5. DEPOSIT OF DEBENTURE PROCEEDS. Borrower acknowledges and agree
that all proceeds received by Borrower or any Guarantor from the sale of any
corporate debentures issued by Borrower or any Guarantor shall be deposited in
Federated Investors Account No. 581915632, by and through SouthTrust Securities,
Inc. Account No. 00000000 (collectively, the "Account"), which Account has
previously been assigned to Lender by Borrower pursuant to that certain
Assignment of Bank Account and Security Agreement dated September
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4, 1998. This includes, without limitation, any proceeds received from the sale
of Professional Transportation Group, Ltd., Inc. 9% Convertible Debenture Due
December 31, 2000, No. A-1, in the amount of $250,000.00, sold to Xxxx X.
X'Xxxx, and Professional Transportation Group, Ltd., Inc. 9% Convertible
Debenture Due December 31, 2000, No. A-2, in the amount of $250,000.00, sold to
AMRO International, S.A.
6. 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.
7. NO DEFENSES; RELEASE. For purposes of this Paragraph 7, 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.
8. 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.
9. 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
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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 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.
10. 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.
11. 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.
12. 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
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Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
TIMELY NORTH, INC., a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
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GUARANTORS:
TRUCK-NET, INC., a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
TIMELY TRANSPORTATION, INC.,
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
PTG, INC., a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
/s/ Xxxxxx X. Xxxxx (SEAL)
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XXXXXX X. XXXXX
LENDER:
SOUTHTRUST BANK, N.A.,
a national banking association
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Vice President
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