Exhibit 10.18
LOAN AND SECURITY AGREEMENT
DATED AS OF May 10, 2002
BETWEEN
TRANSPORTATION RECEIVABLES 1992, LLC
AS LENDER
AND
TRAILER BRIDGE, INC.
AS BORROWER
This LOAN AND SECURITY AGREEMENT is dated as of May 10, 2002 and agreed to by
and between TRAILER BRIDGE, INC., a Delaware corporation ("Borrower") and
TRANSPORTATION RECEIVABLES 1992, LLC, a Delaware limited liability company
("Lender").
RECITALS
A. Borrower desires to obtain the Loan and other financial accommodations
from Lender and Lender is willing to provide the Loan and accommodations all in
accordance with the terms of this Agreement.
B. All schedules, attachments, addenda and exhibits hereto, or expressly
identified to this Agreement, are incorporated herein by reference, and taken
together with this Agreement, constitute but a single agreement.
C. Capitalized terms used in this Agreement and the other Loan Documents
shall have (unless otherwise provided elsewhere in this Agreement or in the
other Loan Documents) the meanings as set forth on Schedule A hereto.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. AMOUNT
1.1 Loan. Subject to the terms and conditions of this Agreement, on the
Closing Date Lender agrees to loan $5,000,000 (the "Loan") to the Borrower,
which Loan consists of a $2,000,000 future advance (the "Future Advance")
evidenced by that certain Future Advance Note dated of even date herewith, and
the assignment to Lender of an existing $3,000,000 obligation of Borrower (as
specified in section 1.3 below, the "Existing Obligation"). Together, the Future
Advance and the Existing Obligation have been consolidated to form the Loan, as
evidenced by that certain Consolidated Promissory Note dated of even date
herewith, a copy of which is attached hereto as Schedule D
1.2 Term and Prepayment. (a) On May ___, 2004, Borrower shall pay to Lender
in accordance with the Consolidated Promissory note, in cash, the Loan and all
accrued and unpaid interest thereon;
(b) Borrower shall have the right, at any time upon 5 days prior
written notice to Lender to prepay the Loan, all accrued and unpaid interest
thereon, and any other amounts due hereunder.
1.3 Use of Proceeds. Borrower shall use the proceeds of the Loan (i) to
repay accrued interest on the $3,000,000 Term Note issued by the Borrower to
Estate of X. X. XxXxxx, dated as of November 30, 2001, and to repay accrued
interest on the $4,000,000 Demand Promissory Note issued by the Borrower to
Lender dated as of April 2, 2002; and (ii) for working capital and other general
corporate purposes.
1.4 Interest. (a) Borrower shall pay interest to Lender on the Loan at
8.03% percent per annum.
(b) Interest shall be payable on the Loan (i) in arrears as provided
for in the Note, (ii) on the Maturity Date, and (iii) if any interest accrues or
remains payable after the Maturity Date, upon demand by Lender.
(c) If any interest or any other payment to Lender under this
Agreement becomes due and payable on a day other than a Business Day, such
payment date shall be extended to the next succeeding Business Day and interest
thereon shall be payable at the then applicable rate during such extension.
2. CONDITIONS PRECEDENT
2.1 Conditions to the Loan. Lender shall not be obligated to make the Loan
or to perform any other action hereunder, until the Loan Documents to be
delivered on or before the Closing Date shall have been duly executed and
delivered by the appropriate parties.
3. REPRESENTATIONS, WARRANTIES AND AFFIRMATIVE COVENANTS
To induce Lender to enter into this Agreement and to make the Loan, Borrower, by
executing this Agreement, represents and warrants to Lender (each of which
representations and warranties shall survive the execution and delivery of this
Agreement), and promises to and agrees with Lender as follows:
3.1 Corporate Existence; Compliance with Law. Borrower: (a) is, as of the
Closing Date, and will continue to be (i) a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, (ii) duly qualified to do business and in good
standing in each other jurisdiction where its ownership or lease of property or
the conduct of its business requires such qualification, except where the
failure to be so qualified could not reasonably be expected to have a Material
Adverse Effect, and (iii) in compliance with all Requirements of Law and to the
extent failure to comply therewith could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and (b) has and will
continue to have (i) the requisite corporate power and authority and the legal
right to execute, deliver and perform its obligations under the Loan Documents,
and to own, pledge, mortgage or otherwise encumber and operate its properties,
to lease the property it operates under lease, and to conduct its business as
now, heretofore or proposed to be conducted, and (ii) all licenses, permits,
franchises, rights, powers, consents or approvals from or by all
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Persons or Governmental Authorities having jurisdiction over Borrower which are
necessary or appropriate for the conduct of its business.
3.2 Corporate Power; Authorization; Enforceable Obligations. The execution,
delivery and performance by Borrower of the Loan Documents to which it is a
party, and the creation of all Liens provided for herein and therein: (a) are
and will continue to be within such Borrower's power and authority; (b) have
been and will continue to be duly authorized by all necessary or proper action;
(c) are not and will not be in violation of any Requirement of Law and (d) do
not and will not require the consent or approval of any Governmental Authority.
As of the Closing Date, each Loan Document shall have been duly executed and
delivered on behalf of Borrower, and each such Loan Document upon such execution
and delivery shall be and will continue to be a legal, valid and binding
obligation of Borrower, enforceable against it in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency and other
similar laws affecting creditors' rights generally.
3.3 Conduct of Business. Borrower (a) shall conduct its business
substantially as now conducted or as otherwise permitted hereunder, and (b)
shall at all times maintain, preserve and protect all of Borrower's property,
used or useful in the conduct of its business and keep the same in good repair,
working order and condition and make, or cause to be made, all necessary or
appropriate repairs, replacements and improvements thereto consistent with
industry practices.
4. SECURITY INTEREST
4.1 Grant of Security Interest. (a) As collateral security for the prompt
and complete payment and performance of the Obligations, the Borrower hereby
grants to the Lender a security interest in and Lien upon all assets listed on
Schedule C (the "Collateral").
(b) Borrower, and Lender agree that this Agreement creates, and is
intended to create, valid and continuing Liens upon the Collateral in favor of
Lender and that upon proper filing in the States of Illinois and Tennessee of
such Liens upon the titles of the equipment such security interest shall become
perfected. Borrower represents, warrants and promises to Lender that: (i)
Borrower is the sole owner of each item of the Collateral upon which it purports
to xxxxx x Xxxx pursuant to the Loan Documents, and has good and marketable
title thereto free and clear of any and all Liens or claims of others, other
than Permitted Encumbrances; (ii) the security interests granted pursuant to
this Agreement, upon completion of the proper and necessary filings will
constitute valid perfected first priority security interests in all of the
Collateral in favor of the Lender as security for the prompt and complete
payment and performance of the Obligations, enforceable in accordance with the
terms hereof against any and all creditors of and purchasers from the Borrower
(other than purchasers of Inventory in the ordinary course of business) and such
security interests are prior to all other Liens on the Collateral in existence
on the date hereof except for Permitted Encumbrances which have priority by
operation of law; and (iii) no effective security agreement, financing
statement, equivalent security or Lien instrument or continuation statement
covering all or any part of the Collateral is or will be on file or of record in
any public office, except those relating to Permitted Encumbrances or otherwise
consented to by Lender in writing. Borrower promises to defend the right, title
and interest of Lender in and to
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the Collateral against the claims and demands of all Persons whomsoever, and
each shall take such actions, including (x) the prompt delivery of all original
instruments, chattel paper and certificated stock owned by Borrower granting a
Lien on Collateral to Lender, (y) notification of Lender's interest in
Collateral at Lender's request, and (z) the institution of litigation against
third parties as shall be prudent in order to protect and preserve Lender's
interests in the Collateral.
5. EVENTS OF DEFAULT: RIGHTS AND REMEDIES
5.1 Events of Default. The occurrence of any one or more of the following
events (regardless of the reason therefore) shall constitute an "Event of
Default" hereunder which shall be deemed to be continuing until cured or waived
in writing by Lender in accordance with Section 7.2:
(a) Borrower fails to make any payment of principal of, or interest
on, the Loan or any of the other Obligations when due and payable; or
(b) a case or proceeding shall have been commenced involuntarily
against Borrower in a court having competent jurisdiction seeking a decree or
order: (i) under the United States Bankruptcy Code or any other applicable
Federal, state or foreign bankruptcy or other similar law, and seeking either
(x) the appointment of a custodian, receiver, liquidator, assignee, trustee or
sequestrator (or similar official) for such Person or of any substantial part of
its properties, or (y) the reorganization or winding up or liquidation of the
affairs of any such Person, and such case or proceeding shall remain undismissed
or unstayed for sixty (60) consecutive days or such court shall enter a decree
or order granting the relief sought in such case or proceeding; or (ii)
invalidating or denying any Person's right, power, or competence to enter into
or perform any of its obligations under any Loan Document or invalidating or
denying the validity or enforceability of this Agreement or any other Loan
Document or any action taken hereunder or thereunder; or
(c) Borrower shall (i) commence any case, proceeding or other action
under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, conservatorship or relief of
debtors, seeking to have an order for relief entered with respect to it or
seeking appointment of a custodian, receiver, liquidator, assignee, trustee or
sequestrator (or similar official) for it or any substantial part of its
properties, or (ii) make a general assignment for the benefit of creditors; or
(d) any provision of any Loan Document shall for any reason cease to
be valid, binding and enforceable in accordance with its terms, or any Lien
granted, or intended by the Loan Documents to be granted, to Lender shall cease
to be a valid and perfected Lien having the first priority (or a lesser priority
if expressly permitted in the Loan Documents) in any of the Collateral.
5.2 Remedies. (a) If any Event of Default shall have occurred and be
continuing, Lender may, without notice, take any one or more of the following
actions: (i) declare all or any portion of the Obligations to be forthwith due
and payable, whereupon such Obligations shall become and be due and payable; or
(ii) exercise any rights and remedies provided to Lender under the Loan
Documents or at law or equity, including all remedies provided under the Code;
provided,
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that upon the occurrence of any Event of Default specified in Sections 5.1 (b),
or (c), the Obligations shall become immediately due and payable without
declaration, notice or demand by Lender.
(b) Without limiting the generality of the foregoing, Borrower
expressly agrees that upon the occurrence of any Event of Default, Lender may
collect, receive, assemble, process, appropriate and realize upon the
Collateral, or any part thereof, and may forthwith sell, lease, assign, give an
option or options to purchase or otherwise dispose of and deliver said
Collateral (or contract to do so), or any part thereof, in one or more parcels
at public or private sale or sales, at any exchange at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk. Lender shall have the right upon any such public sale, to the
extent permitted by law, to purchase for the benefit of Lender the whole or any
part of said Collateral so sold, free of any right of equity of redemption,
which equity of redemption Borrower hereby releases. Such sales may be adjourned
or continued from time to time with or without notice. Lender shall have the
right to conduct such sales on Borrower's premises or elsewhere and shall have
the right to use Borrower's premises without rent or other charge for such sales
or other action with respect to the Collateral for such time as Lender deems
necessary or advisable.
(c) Upon the occurrence and during the continuance of an Event of
Default and at Lender's request, Borrower agrees to assemble the Collateral and
make it available to Lender at places which Lender shall reasonably select,
whether at its premises or elsewhere. Until Lender is able to effect a sale,
lease, or other disposition of the Collateral, Lender shall have the right to
complete, assemble, use or operate the Collateral or any part thereof, to the
extent that Lender deems appropriate, for the purpose of preserving such
Collateral or its value. Lender shall have no obligation to Borrower to maintain
or preserve the rights of Borrower as against third parties with respect to any
Collateral while such Collateral is in the possession of Lender. Lender may, if
it so elects, seek the appointment of a receiver or keeper to take possession of
any Collateral and to enforce any of Lender's remedies with respect thereto
without prior notice or hearing. To the maximum extent permitted by applicable
law, Borrower waives all claims, damages, and demands against Lender, its
Affiliates, agents, and the officers and employees of any of them arising out of
the repossession, retention or sale of any Collateral except such as are
determined in a final judgment by a court of competent jurisdiction to have
arisen solely out of the gross negligence or willful misconduct of such Person.
Borrower agrees that ten (10) days prior notice by Lender to Borrower of the
time and place of any public sale or of the time after which a private sale may
take place is reasonable notification of such matters. Borrower shall remain
liable for any deficiency if the proceeds of any sale or disposition of the
Collateral are insufficient to pay all amounts to which Lender is entitled.
(d) Lender's rights and remedies under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies which Lender may
have under any Loan Document or at law or in equity. Recourse to the Collateral
shall not be required. All provisions of this Agreement are intended to be
subject to all applicable mandatory provisions of law that may be controlling
and to be limited, to the extent necessary, so that they do not render this
Agreement invalid or unenforceable, in whole or in part.
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5.3 Waivers by Borrower. Except as otherwise provided for in this Agreement
and to the fullest extent permitted by applicable law, Borrower waives: (a)
presentment, demand and protest, and notice of presentment, dishonor, intent to
accelerate, acceleration, protest, default, nonpayment, maturity, release,
compromise, settlement, extension or renewal of any or all Loan Documents, and
hereby ratifies and confirms whatever Lender may do in this regard; (b) all
rights to notice and a hearing prior to Lender's taking possession or control
of, or to Lender's replevy, attachment or levy upon, any Collateral or any bond
or security which might be required by any court prior to allowing Lender to
exercise any of its remedies; and (c) the benefit of all valuation, appraisal
and exemption laws. Borrower acknowledges that it has been advised by counsel of
its choices and decisions with respect to this Agreement, the other Loan
Documents and the transactions evidenced hereby and thereby.
5.4 Proceeds. The Proceeds of any sale, disposition or other realization
upon any Collateral shall be applied by Lender upon receipt to the Obligations
in such order as Lender may deem advisable in its sole discretion and after the
indefeasible payment and satisfaction in full in cash of all of the Obligations,
and after the payment by Lender of any other amount required by any provision of
law, including Section 9-504(1)(c) of the Code (but only after Lender has
received what Lender considers reasonable proof of a subordinate party's
security interest), the surplus, if any, shall be paid to Borrower or its
representatives or to whomsoever may be lawfully entitled to receive the same,
or as a court of competent jurisdiction may direct.
6. SUCCESSORS AND ASSIGNS
Each Loan Document shall be binding on and shall inure to the benefit of
Borrower executing such Loan Document, Lender, and their respective successors
and assigns, except as otherwise provided herein or therein. Borrower may not
assign, transfer, hypothecate, delegate or otherwise convey its rights,
benefits, obligations or duties under any Loan Document without the prior
express written consent of Lender. Any such purported conveyance by Borrower or
such Credit Party without the prior express written consent of Lender shall be
void. There shall be no third party beneficiaries of any of the terms and
provisions of any of the Loan Documents. Lender reserves the right at any time
to create and sell participations in the Loan and the Loan Documents and to
sell, transfer or assign any or all of its rights in the Loan and under the Loan
Documents.
7. MISCELLANEOUS
7.1 Complete Agreement; Modification of Agreement. This Agreement and the
other Loan Documents constitute the complete agreement between the parties with
respect to the subject matter hereof and thereof, supersede all prior
agreements, commitments, understandings or inducements (oral or written,
expressed or implied). No Loan Document may be modified, altered or amended
except by a written agreement signed by Lender. Borrower shall have all duties
and obligations under this Agreement and such other Loan Documents from the date
of its execution and delivery, regardless of whether the initial Loan has been
funded at that time.
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7.2 No Waiver. Neither Lender's failure, at any time, to require strict
performance by Borrower of any provision of any Loan Document, nor Lender's
failure to exercise, nor any delay in exercising, any right, power or privilege
hereunder, shall operate as a waiver thereof or waive, affect or diminish any
right of Lender thereafter to demand strict compliance and performance
therewith. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or future exercise thereof or the exercise of
any other right, power or privilege. Any suspension or waiver of a Default or
other provision under the Loan Documents shall not suspend, waive or affect any
other Default or other provision under any Loan Document, and shall not be
construed as a bar to any right or remedy which Lender would otherwise have had
on any future occasion. None of the undertakings, indemnities, agreements,
warranties, covenants and representations of Borrower to Lender contained in any
Loan Document and no Default by Borrower under any Loan Document shall be deemed
to have been suspended or waived by Lender, unless such waiver or suspension is
by an instrument in writing signed by an officer or other authorized employee of
Lender and directed to Borrower specifying such suspension or waiver (and then
such waiver shall be effective only to the extent therein expressly set forth),
and Lender shall not, by any act (other than execution of a formal written
waiver), delay, omission or otherwise, be deemed to have waived any of its
rights or remedies hereunder.
7.3 Severability; Section Titles. Wherever possible, each provision of the
Loan Documents shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of any Loan Document shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of such
Loan Document. Except as otherwise expressly provided for in the Loan Documents,
no termination or cancellation (regardless of cause or procedure) of any
financing arrangement under the Loan Documents shall in any way affect or impair
the Obligations, duties, covenants, representations and warranties, indemnities,
and liabilities of Borrower or the rights of Lender relating to any unpaid
Obligation, (due or not due, liquidated, contingent or unliquidated), or any
transaction or event occurring prior to such termination, or any transaction or
event, the performance of which is not required until after the Commitment
Termination Date, all of which shall not terminate or expire, but rather shall
survive such termination or cancellation and shall continue in full force and
effect until the Termination Date; provided, that all indemnity obligations of
the Credit Parties under the Loan Documents shall survive the Termination Date.
The Section titles contained in any Loan Document are and shall be without
substantive meaning or content of any kind whatsoever and are not a part of the
agreement between the parties hereto.
7.4 Authorized Signature. Until Lender shall be notified in writing by
Borrower to the contrary, the signature upon any document or instrument
delivered pursuant hereto and believed by Lender or any of Lender's officers,
agents, or employees to be that of an officer of Borrower shall bind Borrower
and be deemed to be the act of Borrower affixed pursuant to and in accordance
with resolutions duly adopted by Borrower's Board of Directors, and Lender shall
be entitled to assume the authority of each signature and authority of the
person whose signature it is or appears to be unless the person acting in
reliance thereon shall have actual knowledge to the contrary.
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7.5 Notices. Except as otherwise provided herein, whenever any notice,
demand, request or other communication shall or may be given to or served upon
any party by any other party, or whenever any party desires to give or serve
upon any other party any communication with respect to this Agreement, each such
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three (3)
days after deposit in the United States Mail, registered or certified mail,
return receipt requested, with proper postage prepaid, (b) upon transmission,
when sent by telecopy or other similar facsimile transmission (with such
telecopy or facsimile promptly confirmed by delivery of a copy by personal
delivery or United States Mail as otherwise provided in this Section 6.5), (c)
one (1) Business Day after deposit with a reputable overnight courier with all
charges prepaid or (d) when hand-delivered, all of which shall be addressed to
the party to be notified and sent to the address or facsimile number indicated
in Schedule B or to such other address (or facsimile number) as may be
substituted by notice given as herein provided. Failure or delay in delivering
copies of any such communication to any Person (other than Borrower or Lender)
designated in Schedule B to receive copies shall in no way adversely affect the
effectiveness of such communication.
7.6 Counterparts. Any Loan Document may be executed in any number of
separate counterparts by any one or more of the parties thereto, and all of said
counterparts taken together shall constitute one and the same instrument.
7.7 GOVERNING LAW. THE LOAN DOCUMENTS AND THE OBLIGATIONS ARISING UNDER THE
LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF Florida APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING
CONFLICTS OF LAWS.
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IN WITNESS WHEREOF, this Loan and Security Agreement has been duly executed as
of the date first written above.
TRAILER BRIDGE, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: VP and CFO
TRANSPORTATION RECEIVABLES 1992, LLC
By The Estate of X. X. XxXxxx, Member
By: /s/ Xxxx X. XxXxxx
--------------------------------------
Name: Xxxx X. XxXxxx
Title: Co-Executor
By: /s/ X. Xxxxxxxx Meyercord
--------------------------------------
Name: X. Xxxxxxxx Xxxxxxxxx
Title: Co-Executor
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SCHEDULE A - DEFINITIONS
Capitalized terms used in this Agreement and the other Loan Documents shall have
(unless otherwise provided elsewhere in this Agreement or in the other Loan
Documents) the following respective meanings:
"Agreement" shall mean this Agreement including all appendices, exhibits or
schedules attached or otherwise identified thereto, restatements and
modifications and supplements thereto, and any appendices, exhibits or schedules
to any of the foregoing, each as in effect at the time such reference becomes
operative; provided, that except as specifically set forth in this Agreement,
any reference to the Disclosure Schedules to this Agreement shall be deemed a
reference to the Disclosure Schedules as in effect on the Closing Date or in a
written amendment thereto executed by Borrower and Lender.
"Books and Records" shall mean all books, records, board minutes, contracts,
licenses, insurance policies, environmental audits, business plans, files,
computer files, computer discs and other data and software storage and media
devices, accounting books and records, financial statements (actual and pro
forma), filings with Governmental Authorities and any and all records and
instruments relating to the Collateral or Borrower's business.
"Borrower" shall mean the Person identified as such in the preamble of this
Agreement.
"Business Day" shall mean any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York.
"Closing Date" shall mean the Business Day on which the conditions precedent set
forth in Section 2 have been satisfied or specifically waived in writing by
Lender, and the initial Loan has been made.
"Code" shall mean the Uniform Commercial Code as the same may, from time to
time, be in effect in the States of Illinois, Tennessee, or Delaware, as
applicable; provided, that in the event that, by reason of mandatory provisions
of law, any or all of the attachment, perfection or priority of Lender's
security interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the States of Illinois, Tennessee, or
Delaware, the term "Code" shall mean the Uniform Commercial Code as in effect in
such other jurisdiction for purposes of the provisions of this Agreement
relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
"Default" shall mean any Event of Default or any event which, with the passage
of time or notice or both, would, unless cured or waived, become an Event of
Default.
"Event of Default" shall have the meaning assigned to it in Section 4.1.
"Governmental Authority" shall mean any nation or government, any state or other
political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Lender" shall mean Transportation Receivables 1992, LLC and its successors and
assigns.
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"Lien" shall mean any mortgage, security deed or deed of trust, pledge,
hypothecation, assignment, deposit arrangement, lien, charge, claim, security
interest, security title, easement or encumbrance, restriction or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including any lease or title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of, or agreement to give, any financing statement
perfecting a security interest under the Code or comparable law of any
jurisdiction).
"Loan Documents" shall mean this Agreement, the Future Advance Note, the
Consolidated Promissory Note, the Receipt for Future Advance and Mortgage and
Mortgage Note Modification, Consolidation and Extension Agreement from Borrower
to Lender, and notices at any time delivered by any Person (other than Lender)
in connection with any of the foregoing.
"Note" shall mean the Consolidated Promissory Note delivered by the Borrower to
the Lender substantially in the form of Schedule D.
"Obligations" shall mean the Borrower's obligations under the Loan, the Note,
and this Agreement, collectively.
"Permitted Encumbrances" shall mean the following encumbrances: (i) that certain
mortgage from Borrower in favor of First Union National Bank dated as of April
18, 1996, recorded in Volume 8333, page 1312 of the Official Records of Xxxxx
County, Florida; (ii) Liens for taxes or assessments or other governmental
Charges or levies, either not yet due and payable; (iii) inchoate and
unperfected workers', mechanics', or similar liens arising in the ordinary
course of business; and (iv) Liens in favor of Lender securing the Obligations.
"Person" shall mean any individual, sole proprietorship, partnership, limited
liability partnership, joint venture, trust, unincorporated organization,
association, corporation, limited liability company, institution, public benefit
corporation, entity or government (whether Federal, state, county, city,
municipal or otherwise, including any instrumentality, division, agency, body or
department thereof), and shall include such Person's successors and assigns.
All undefined terms contained in this Agreement or the other Loan Documents
shall, unless the context indicates otherwise, have the meanings provided for by
the Code. The words "herein," "hereof" and "hereunder" or other words of similar
import refer to this Agreement as a whole, including the exhibits and schedules
thereto, as the same may from time to time be amended, modified or supplemented,
and not to any particular section, subsection or clause contained in this
Agreement.
For purposes of this Agreement and the other Loan Documents, the following
additional rules of construction shall apply, unless specifically indicated to
the contrary: (a) wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and the
plural; (b) the term "or" is not exclusive; (c) the term "including" (or any
form thereof) shall not be limiting or exclusive; (d) all references to statutes
and related regulations shall include any amendments of same and any successor
statutes and regulations; and (e) all references to any instruments or
agreements, including references to any of the Loan Documents, shall include any
and all modifications or amendments thereto and any and all extensions or
renewals thereof.
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Schedule B
LENDER'S AND BORROWER'S ADDRESS FOR NOTICES
Lender's Address
Name: Transportation Receivables 1992, LLC
Address: c/o Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Borrower's Address
Name: Trailer Bridge, Inc.
Address: 00000 Xxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a Copy to:
Name: Xxxxxxx X. Xxxxxxx, Xx., Esq.
Address: 000 Xxxxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Schedule C
COLLATERAL
Mortgage dated December 31, 2001, executed by Trailer Bridge, Inc. in favor of
Estate of X.X. XxXxxx and recorded in Book 10298, Page 2376 of the Official
Records of Xxxxx County, Florida.
Schedule D
FORM OF NOTE
Consolidated Promissory Note
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$5,000,000.00 May __, 0000
Xxx Xxxx, Xxx Xxxx
For value received, the receipt and sufficiency of which are hereby
acknowledged, TRAILER BRIDGE, INC., a Delaware corporation ("Borrower"),
promises to pay to the order of Transportation Receivables 1992, LLC ("Lender"),
FIVE MILLION DOLLARS ($5,000,000.00), or if less, the aggregate unpaid principal
amounts of the Loan advanced by Lender to Borrower under the LOAN AND SECURITY
AGREEMENT dated as of May __, 2002 by and between Borrower and Lender (said
agreement, as the same may be amended, restated or supplemented from time to
time, being herein called the "Agreement") together with interest on the unpaid
balance of such amount from the date of this Note. This Note is the Note issued
under the Agreement to which a reference is made for a statement of all of the
terms and conditions of the Loan evidenced hereby. Capitalized terms not defined
in this Note shall have the respective meanings assigned to them in the
Agreement. This Note is secured by the Agreement and the Collateral, and is
entitled to the benefit of the rights and security provided thereby.
Interest on the outstanding principal balance under this Note is payable at the
rate of 8.03% per annum, and, in the event of a default of the terms of this
Note, at Default Rate that is 3.00% greater than the otherwise applicable rate,
in immediately available United States Dollars quarterly commencing three months
from the date of this Note. The outstanding principal and interest under this
Note shall be immediately due and payable on the date two (2) years from the
date of this Note.
Payments received by Lender shall be applied against principal and interest as
provided for above. To the fullest extent permitted by applicable law, Borrower
waives: (a) presentment, demand and protest, and notice of presentment,
dishonor, intent to accelerate, acceleration, protest, default, nonpayment,
maturity, release, compromise, settlement, extension or renewal of any or all of
the Obligations, the Loan Documents or this Note; (b) all rights to notice and a
hearing prior to Lender's taking possession or control of, or to Lender's
replevy, attachment or levy upon, the Collateral or any bond or security that
might be required by any court prior to allowing Lender to exercise any of its
remedies; and (c) the benefit of all valuation, appraisal and exemption laws.
Borrower acknowledges that this Note is executed as part of a commercial
transaction and that the proceeds of this Note will not be used for any personal
or consumer purpose.
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THIS NOTE CONSOLIDATES THAT CERTAIN PROMISSORY NOTE IN THE AMOUNT OF $3,000,000
MADE BY THE BORROWER IN FAVOR OF THE ESTATE OF X. X. XxXXXX AND ASSIGNED TO THE
LENDER, AND THAT CERTAIN $2,000,000 FUTURE ADVANCE NOTE MADE BY THE BORROWER IN
FAVOR OF THE LENDER, WHICH NOTES ARE ATTACHED HERETO AND AS TO WHICH DOCUMENTARY
STAMP AND INTANGIBLES TAXES HAVE BEEN PAID.
Upon the occurrence of any one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable, all as provided therein.
BORROWER ACKNOWLEDGES THAT BORROWER HAS WAIVED THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING ON THIS NOTE. THIS NOTE IS GOVERNED BY THE LAW OF THE STATE
OF FLORIDA.
TRAILER BRIDGE, INC.
By:______________________________________
Name: ________________________________
Title: ________________________________
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