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EXHIBIT 10.6
GUARANTY OF PAYMENT AND PERFORMANCE
THIS GUARANTY OF PAYMENT AND PERFORMANCE ("Guaranty"), dated as of
November 19, 1997, is made by the undersigned PROFESSIONAL TRANSPORTATION GROUP
LTD., INC., a Georgia corporation, 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 jointly,
severally and collectively referred to as "Guarantor"), with SOUTHTRUST BANK,
N.A., a national banking association ("Bank").
W I T N E S S E T H :
FOR VALUE RECEIVED, and to induce Bank to make a loan, extend credit
or make other financial accommodations available to TIMELY NORTH, INC., a
Georgia corporation (as hereinafter further defined, "Borrower"), and for the
consideration set forth below, Guarantor hereby agrees with Bank as follows:
1. PURPOSE. This Guaranty is made for the purpose of securing
for Borrower one or more loans or other extensions of credit from, or a line of
credit with, or the issuance of one or more letters of credit by, or the
acceptance of one or more bankers' acceptances by, or the lease of personal
property from or the furnishing of other financial accommodations by Bank, in
amounts and upon terms and conditions as Bank, in its sole discretion, may deem
appropriate. All such loans or other financial accommodations now or hereafter
provided by Bank to Borrower, and all extensions or renewals of debts or other
obligations now or at any time hereafter owing by Borrower to Bank, are made by
Bank in reliance on this Guaranty, are to the interest and benefit of Guarantor,
and are sufficient consideration for the execution and delivery of this Guaranty
by Guarantor. Each term and provision of every promissory note or other evidence
of debt, and every loan agreement, security agreement, mortgage, deed to secure
debt, deed of trust, letter of credit reimbursement agreement, bankers'
acceptance agreement, lease agreement and every other contract now or hereafter
executed by Borrower and delivered to Bank, shall bind Guarantor as if executed
by Guarantor as the primary and individual obligation of Guarantor.
2. GUARANTY. Guarantor, jointly and severally if more than one,
hereby unconditionally guarantees to Bank the prompt payment and performance by
Borrower when due of all the Guaranteed Obligations (as hereinafter defined).
This Guaranty is a guaranty of payment and performance and not of collection. In
the event Borrower at any time fails to pay or perform any of the Guaranteed
Obligations as and when the same become due, whether by acceleration of maturity
or otherwise, and in accordance with all applicable terms and conditions,
Guarantor agrees to pay such debt or perform such obligation immediately. Upon
failure of Guarantor to do so, Bank may, in its discretion, enforce the
collection of such debt or the performance of such obligation against Guarantor
by action in any court of competent jurisdiction, or in any other manner
provided by law, the same as if such debt or obligation were the primary and
individual debt or obligation of Guarantor, and without first seeking to enforce
such debt or obligation by action or otherwise against Borrower; or, Bank may,
in its discretion, proceed in any manner provided by law or by contract for
collection of debts against either or both Guarantor and Borrower the same as if
such debts and obligations were primarily and individually the debt of both
Guarantor and Borrower, jointly and severally.
3. CONTINUING GUARANTY. THIS GUARANTY IS AN ABSOLUTE,
UNCONDITIONAL AND CONTINUING GUARANTEE. This Guaranty extends to all Guaranteed
Obligations contracted or owing by Borrower to Bank now and at any time prior to
Bank's return of this Guaranty to Guarantor or the termination of this Guaranty
pursuant to the provisions of this paragraph, even though from time to time and
for extended periods of time there may be no debt or obligation owed to Bank by
Borrower. Subject to the following provisions, Guarantor shall have the right to
terminate this Guaranty at any time effective ten (10) days after receipt by
Bank of written notice of Guarantor's intention to terminate this Guaranty. Such
termination will not affect Guarantor's obligations with respect to, and this
Guaranty will remain in full force and effect with respect to, all of the
Guaranteed Obligations then due and owing or then contracted for or existing,
whether or not yet due, at the time such notice becomes effective, and all
obligations described in paragraph 4.e. of this Guaranty, whether then existing
or arising in the future, and also with respect to any subsequent loans,
extensions of credit, and other financial accommodations which, prior to the
effectiveness of such notice, Bank may have committed to make to Borrower
(regardless of whether Bank waives any default or condition precedent to the
making of such loans, extensions of credit, or other financial accommodations),
together with all interest thereon and all expenses, including costs of
collection and attorneys' fees, with respect to such Guaranteed Obligations and
this Guaranty.
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4. WAIVERS AND AGREEMENTS OF GUARANTOR. Guarantor hereby
irrevocably:
a. Consents to all terms, covenants, conditions and
agreements heretofore or hereafter made by Borrower with Bank, including,
without limitation, agreements regarding the manner of disposing any collateral
held as security for the Guaranteed Obligations in a commercially reasonable
manner and agreements regarding the manner and time of giving notice of any sale
or other intended disposition of any of such collateral;
b. Consents that Bank may, without discharging Guarantor or
in any way affecting the obligations of Guarantor under this Guaranty, without
notice to or further consent from Guarantor: (i) exchange, release or surrender
to Borrower or to any Guarantor or any other person, or waive, release,
subordinate, fail to perfect any lien or security interest in, or otherwise
impair, any collateral now or hereafter held as security for any of the
Guaranteed Obligations or any right of set off against any deposit account of
Borrower; (ii) waive or delay the exercise of any of its rights or remedies
against Borrower or any other person or entity, including, without limitation,
Guarantor; (iii) with or without consideration, release Borrower or any other
person or entity, including, without limitation, any other guarantor of the
Guaranteed Obligations; (iv) renew, extend, or modify the terms of any of the
Guaranteed Obligations or of any promissory note or other instrument or
agreement evidencing the same; (v) apply payments made by Borrower, Guarantor or
any other person or entity to any of the Guaranteed Obligations in such manner
and in such order as Bank may elect; (vi) apply payments received for Borrower's
account first to pay any indebtedness of Borrower that is not guaranteed by
Guarantor, if any, before reducing the Guaranteed Obligations; and (vii) in the
event of the filing of a petition (whether voluntary or involuntary) under any
chapter of the federal bankruptcy code with respect to Borrower, participate in
the bankruptcy proceedings and exercise any and all rights set forth in clauses
(i) through (vi) above or otherwise available to Bank under applicable law,
including, without limitation, voting for or against any plan of reorganization,
consenting to the use of any cash collateral, consenting to the sale, use or
lease of any collateral securing any of the Guaranteed Obligations, and entering
into any compromise or settlement regarding the Guaranteed Obligations or any
collateral therefor;
c. Waives all notices whatsoever with respect to this
Guaranty or with respect to the Guaranteed Obligations or any collateral
therefor, including, without limitation, notice of (i) Bank's acceptance of this
Guaranty or its intention to act, or its actions, in reliance hereon; (ii) the
existence, creation or incurring of any of the Guaranteed Obligations or the
terms or amounts thereof or any change therein; (iii) presentment and nonpayment
or dishonor with respect to any promissory note or other instrument or agreement
now or hereafter evidencing any of the Guaranteed Obligations, and any other
demands and notices, except any notice that may be required by law which cannot
be waived; (iv) any default by Borrower or any surety, pledgor, grantor of any
lien or security interest, or guarantor, including, without limitation,
Guarantor; (v) the obtaining or release of any guaranty or surety agreement (in
addition to this Guaranty), or any pledge, assignment, security agreement,
mortgage, deed to secure debt, deed of trust or other security for any of the
Guaranteed Obligations;
d. Waives any right to require Bank to take action against
Borrower as provided for in Section 10-7-24 of the Official Code of Georgia
Annotated or any other statute or applicable law, and waives any requirement
that suit under this Guaranty be brought within any period of time shorter than
the general statute of limitations applicable to contracts under seal;
e. Agrees that, if at any time all or any part of any
payment previously applied by Bank to any of the Guaranteed Obligations must be
returned by Bank for any reason, whether upon the claim of a preference,
fraudulent transfer, prior lien or other claim of a creditor, debtor in
possession, trustee in bankruptcy or other representative of creditors of
Borrower, or otherwise, and whether by court order, administrative order or
non-judicial settlement, this Guaranty shall continue in effect or shall be
reinstated, as the case may be, and Guarantor shall remain liable for the full
amount returned as if such amount had never been received by Bank,
notwithstanding any termination, cancellation or revocation of this Guaranty
(whether under paragraph 3 above or otherwise) or cancellation of any promissory
note or other instrument or agreement evidencing any of the Guaranteed
Obligations;
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f. Agrees that this Guaranty will be valid and binding upon
Guarantor when delivered to Bank by anyone having possession hereof after
execution of this Guaranty by Guarantor.
g. Agrees that Guarantor's liability under this Guaranty is
absolute and is not conditioned on the execution of this or any similar guaranty
by any other person or upon the occurrence or nonoccurrence of any other event;
h. Waives any right to require Bank to xxxxxxxx the assets
of Borrower or any other person and agrees that Bank may proceed against any
collateral securing the Guaranteed Obligations (whether or not Guarantor or any
other person holds a lien on only a part of such collateral) and against parties
liable on any of the Guaranteed Obligations in such order as Bank may elect, the
benefit of any rule of law or equity to the contrary being hereby expressly
waived by Guarantor;
i. Agrees that the liability of Guarantor under this
Guaranty shall not be affected or impaired by, and this Guaranty shall remain
fully enforceable against Guarantor for the full amount of the Guaranteed
Obligations less only payments thereon actually received and retained by Bank
irrespective of and without reduction on account of (i) any defense, offset or
counterclaim which Borrower may have or assert with respect to any of the
Guaranteed Obligations, including, without limitation, filing of a petition in
bankruptcy, discharge in bankruptcy, confirmation of a plan or reorganization
(whether Bank voted for or against such plan), composition with creditors
(whether or not including Bank), failure of consideration, breach of warranty,
statute of frauds, statute of limitations, accord and satisfaction, wavier,
estoppel, release, usury, or fraud or misrepresentation, (ii) termination of any
present or future relationship between Guarantor and Borrower or between
Guarantor and any other guarantor of any obligations of Borrower, or (iii)
death, incompetency, or dissolution of Guarantor or Borrower;
j. Agrees that Bank may, at its election, release or satisfy
of record any collateral for this Guaranty only after any applicable preference
periods have elapsed; and
k. Waives, renounces and agrees not to assert any right,
claim or cause of action against Borrower, including, without limitation, a
claim for reimbursement, subrogation, indemnification or otherwise. The waiver,
renunciation and agreement set forth in the preceding sentence is for the
benefit of Bank and also for the benefit of Borrower, who may assert the
benefits thereof as a third-party beneficiary and Guarantor may be released from
such waiver, renunciation and agreement only by the execution and delivery, by
Bank and Borrower, of an instrument expressly releasing Guarantor therefrom.
5. FINANCIAL STATEMENTS. Guarantor agrees, for so long as there
is any amount outstanding of the Guaranteed Obligations, to provide Bank copies
of each income tax return filed by Guarantor after the date of this Guaranty and
financial statements and other information of or concerning Guarantor, in such
detail, of such quality (i.e., audited, reviewed, unaudited or otherwise), and
with such frequency as Bank may reasonably request from time to time. All
financial statements required by Bank as set forth above shall be prepared in
accordance with generally accepted accounting principles (except for the absence
of footnotes with respect to monthly and quarterly financial statements) and
shall fairly present the financial position and results of operations of
Guarantor as of and for the periods specified.
6. STATUTE OF LIMITATIONS. Guarantor acknowledges that the
statute of limitations applicable to this Guaranty shall begin to run only upon
Guarantor's failure to refusal to pay any of the Guaranteed Obligations
following default in the payment or performance thereof by Borrower; provided,
that if subsequent to such default, Bank reaches an agreement with Borrower on
any terms causing Bank to forbear in the enforcement of its claims against
Guarantor, the statute of limitations shall be reinstated for its full duration
until Borrower again defaults.
7. COLLECTION COSTS. Guarantor hereby agrees to pay all costs
of collecting under this Guaranty, including, without limitation, court costs,
litigation expenses and attorneys' fees in an amount equal to fifteen percent
(15%) of the unpaid balance of the Guaranteed Obligations if referred to an
attorney for collection. If attorneys' fees in such amount would be prohibited
by applicable law, then Guarantor agrees to pay reasonable
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attorneys' fees not to exceed the maximum amount allowed by law.
8. NOTICES. Any and all notices, elections, demands, requests
and responses thereto permitted or required to be given under this Guaranty
shall be in writing, signed by or on behalf of the party giving the same, and
shall be deemed to have been properly given and shall be effective upon being
personally delivered, or three (3) days after being deposited in the United
States mail, postage prepaid, certified with return receipt requested, to
Guarantor if mailed to the address set forth above Guarantor's name at the end
of this Guaranty and to Bank at the address set forth in the beginning of this
Guaranty or at such other address within the continental United States for
either party as such party may designate by notice to the other given in
accordance with the provisions of this paragraph; provided, however, that the
time period in which a response to any such notice, election, demand or request
must be given shall commence on the date of receipt thereof; and provided
further that no notice of change of address shall be effective until the date of
receipt thereof. Personal delivery to a party or to any officer, partner, agent
or employee of such party at said address shall constitute receipt. Rejection or
other refusal to accept or inability to deliver because of a changed address of
which no notice has been received shall also constitute receipt.
9. CONSENT TO JURISDICTION. GUARANTOR HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF GEORGIA AND,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVES ANY OBJECTION BASED ON VENUE
OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED IN ANY SUCH COURT
AND AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION WILL BE SUFFICIENT IF
SERVED ON GUARANTOR IN CANADA OR THE UNITED STATES OF AMERICA BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED OR IN ANY MANNER PROVIDED BY LAW. NOTWITHSTANDING THE
FOREGOING, BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST
GUARANTOR OR GUARANTOR'S PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION BANK
DEEMS NECESSARY OR APPROPRIATE IN ORDER TO ENFORCE THE OBLIGATIONS OF GUARANTOR
UNDER THIS GUARANTY.
10. DEFINITIONS. As used in this Guaranty, the following terms
have the following meanings:
"Borrower" means the entity identified above in this Guaranty,
together with his, her, its or their heirs, administrators, executors,
successors and assigns, including any resulting or surviving corporation
following any merger or any other reorganization, and also includes any debtor
in possession or similar entity following the filing of a petition for relief by
or against Borrower under any chapter of the federal bankruptcy code or in any
similar proceeding under state or federal law, and also includes any
proprietorship, partnership, corporation, trust, or other entity resulting from
or arising out of the dissolution, liquidation or change in form of business
organization by Borrower or following any change of name or domicile by
Borrower.
"Guaranteed Obligations" means all debts and other obligations
now owed by Borrower to Bank, all debts and other obligations owed by Borrower
to Bank in the future, all extensions and renewals of any such debts or
obligations, and all interest and other lawful fees and charges on any or all
such debts and obligations, including, without limitation, late charges, penalty
interest, premiums and costs of collection (including reasonable attorneys'
fees) for which Borrower has agreed to pay or reimburse Bank, or for which
Borrower is obligated to pay Bank under applicable law, together with each and
every promissory note or other instrument or writing now or hereafter evidencing
the obligation of Borrower to pay any such debt, the interest thereon or such
other charges; whether such debts or other obligations are now foreseen or
unforeseen; whether now due or to become due in the future; whether incurred
with or without notice to Guarantor; whether arising from contract, tort or
otherwise; whether arising from an original obligation of Borrower to Bank or
from an obligation of Borrower which was purchased by Bank, whether from time to
time increased, reduced or entirely extinguished and then reincurred; whether
direct or indirect, absolute or contingent, liquidated or unliquidated, secured
or unsecured; whether otherwise guaranteed or not; and whether arising out of
one or more loans or other extensions of credit from, or line of credit with, or
the issuance of one or more letters of credit by, or the acceptance of one or
more bankers' acceptances by, or the lease of personal property from, or the
furnishing of other financial accommodation by Bank, or otherwise. The
Guaranteed Obligations include, without limitation, interest, fees and other
charges on any debt or obligation of Borrower to Bank accruing after the filing
of a petition under any chapter of the federal bankruptcy code by or against
Borrower and any loans or other credit or financial accommodations extended to
Borrower after the filing of
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any such petition. THE GUARANTEED OBLIGATIONS SPECIFICALLY ARE NOT LIMITED TO
DEBTS AND OTHER OBLIGATIONS CONTRACTED FOR OR ARISING CONCURRENTLY WITH OR PRIOR
TO THE EXECUTION OF THIS GUARANTY AND ARE NOT LIMITED IN AMOUNT UNLESS OTHERWISE
SPECIFICALLY SET FORTH IN WRITING IN THIS GUARANTY.
11. MISCELLANEOUS. No delay by Bank in enforcing its rights
hereunder shall prejudice its rights to enforce this Guaranty. All rights and
remedies under this Guaranty, under any other agreement and under applicable law
shall be cumulative, and any failure of Bank to exercise any such right or
remedy shall not be construed as a waiver of the right to exercise the same or
any other right or remedy at any time and from time to time, thereafter. No
waiver by Bank shall be effective unless made in writing by a duly authorized
officer or agent of Bank, and no waiver by Bank of any right or remedy shall
constitute a waiver of any other or future right or remedy. This Guaranty shall
inure to the benefit of Bank, its successors and assigns, and to any person to
whom Bank may grant an interest in any of the Guaranteed Obligations, and shall
be binding upon Guarantor, and his, her, its or their respective heirs,
executors, administrators, successors and assigns. This Guaranty sets forth the
entire agreement and understanding of Guarantor with respect to the subject
matter hereof. GUARANTOR ACKNOWLEDGES THAT NO AGENT OF BANK HAS MADE ANY
REPRESENTATION WHICH IS INCONSISTENT WITH ANY OF THE TERMS OF THIS GUARANTY AND
THAT NO OFFICER OR AGENT OF BANK HAS THE AUTHORITY TO VARY THE TERMS OF THIS
GUARANTY EXCEPT IN A WRITING SIGNED BY A DULY AUTHORIZED OFFICER OF BANK. The
making of the loans and providing of the other financial accommodations referred
to in this Guaranty shall be solely in the discretion of Bank, and reference
thereto in this Guaranty, whether in paragraph 1 hereof or elsewhere, shall not
be deemed to be a commitment by Bank to make any loan or provide any financial
accommodation. In the event any one or more of the provisions of this Guaranty
shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions of this Guaranty shall
not in any way be affected or impaired thereby. If more than one person or
entity signs this Guaranty below, the liability of such persons or entities on
this Guaranty is joint and several, and all references to the singular in this
Guaranty also include the plural. In the event of termination, cancellation,
revocation or release of this Guaranty as to any one or more Guarantors, this
Guaranty shall continue in full force and effect with respect to the remaining
Guarantors. THIS GUARANTY SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty under seal
as of the date first above written.
ADDRESSES OF
EACH GUARANTOR: 0000 XXXXXXX XXXXX XXXX
XXXXX 000
XXXXXXX, XXXXXXX 00000
GUARANTOR:
PROFESSIONAL TRANSPORTATION GROUP LTD., INC., a
Georgia corporation
By: /s/Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
TRUCK-NET, INC., a Georgia corporation
By: /s/Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
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TIMELY TRANSPORTATION, INC., a Georgia corporation
By: /s/Xxxxxx X. Xxxxx
----------------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
PTG, INC., a Georgia corporation
By: /s/Xxxxxx X. Xxxxx
----------------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
/s/Xxxxxx X. Xxxxx
---------------------------------------------
XXXXXX X. XXXXX (individually)
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