EXHIBIT 10.6
SECURITY AGREEMENT
Borrower/Debtor: Lender/Secured Party:
Central Freight Lines, Inc., SunTrust Bank
a Texas Corporation 000 Xxxxxx Xxxxxx Xxxxx
0000 Xxxx Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx 00000
Xxxx, Xxxxx 00000
THIS SECURITY AGREEMENT is entered into this 30th day of April, 2002,
by and among CENTRAL FREIGHT LINES, INC., a Texas corporation with its chief
executive and principal office located at the address set forth above
("BORROWER"), XXXXX X. XXXXX ("XXXXX"), an individual and resident of the State
of Arizona and SUNTRUST BANK, a Georgia state banking corporation with offices
located at the address set forth above ("LENDER").
BACKGROUND:
A. Borrower and Lender have executed that certain Loan Agreement
dated as of the date hereof (as now or hereafter amended, modified, extended,
supplemented and/or restated, the "LOAN AGREEMENT"), and one of the conditions
of the Loan Agreement is that Borrower enter into this Agreement and grant
Lender a security interest in certain property of Borrower (as described herein)
to secure repayment of all indebtedness described in Section 2 hereof.
B. Borrower is the holder and payee of that certain $8,000,000
promissory note dated as of the date hereof executed by Moyes (as it may be
amended or restated or replaced in accordance with the terms hereof, the "Moyes
Note"). Moyes joins in the execution of this Security Agreement to acknowledge
the security interest hereby and to make other representations, warranties and
covenants as set forth herein.
C. Terms not defined herein shall have the meanings ascribed to
such terms in the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. SECURITY INTEREST. As security for the repayment of the
Indebtedness (as defined in Section 2), Borrower hereby collaterally assigns to
Lender and grants Lender a security interest in all of Borrower's present and
future right, title and interest in and to the Moyes Note, including but not
limited to amounts payable, or other rights of Borrower arising under the Moyes
Note, whether such amounts or rights exist or hereafter arise including all
proceeds attributable to or arising from any of such property (collectively, the
"Collateral").
2. INDEBTEDNESS. The security interest in the Collateral shall
secure prompt and full performance and payment of the following (the
"INDEBTEDNESS"):
(a) Indebtedness evidenced by a Revolving Credit Note of
even date herewith executed by Borrower to Lender pursuant to the Loan
Agreement, and all extensions and modifications and renewals thereof,
all whether now existing or hereafter arising (as extended, replaced,
amended and/or restated from time to time, the "NOTE"), and all
indebtedness and obligations of Borrower to Lender at any time
evidenced by or arising under or in connection with this Agreement, the
Loan Agreement, the Note, any obligation of Borrower under a Hedging
Agreement, or any other loan document executed in connection with the
Loan Agreement and/or the Note (collectively, the "LOAN DOCUMENTS");
and
(b) All costs and expenses incurred by Lender in
enforcing or protecting its rights with respect to the Collateral or
the indebtedness secured by the Collateral, including, but not limited
to, attorneys' fees.
3. BORROWER'S GENERAL REPRESENTATIONS AND WARRANTIES. Borrower
hereby represents and warrants to Lender that the following are true and
correct:
(a) Borrower is the sole and lawful owner of the
Collateral, and has an unrestricted right to grant a security interest
in the Collateral.
(b) There are no claims, liens, security interests or
encumbrances against the Collateral.
(c) Borrower has concurrently herewith delivered the
original of the Moyes Note to Lender, and such instrument represents
the entire agreement between Borrower and Moyes with respect to the
subject matter thereof;
(d) Borrower is duly authorized and empowered to execute,
deliver, and perform its obligations under this Agreement. All
corporate action required for Borrower's due execution, delivery, and
performance of this Agreement has been duly and effectively taken.
Borrower's execution and performance of this Agreement will not
conflict with its articles or by-laws or any other document or
instrument to which it is a party or by which Borrower or it property
is subject.
4. MOYES' GENERAL REPRESENTATIONS AND WARRANTIES. Moyes hereby
represents and warrants to Lender that the following are true and correct:
(a) Moyes is the sole obligor under the Moyes Note;
(b) There are no agreements or documents, other than the
Moyes Note, which govern or otherwise affect the terms of payment as
set forth in the Moyes Note;
(c) To the best of his knowledge, there are no claims,
liens, security interests or encumbrances against the Moyes Note;
(d) Moyes' execution and performance of his obligations
under this Agreement will not conflict with any other document or
instrument to which he is a party or by which any of his property is
subject; and
2
(e) The Moyes Note is fully recourse to Moyes and is a
valid and binding obligation of Moyes, without any rights of setoff,
counterclaim or other defenses against Borrower.
5. BORROWER'S GENERAL COVENANTS. Borrower hereby covenants and
agrees that, until the Indebtedness shall have been paid in full and the Loan
Agreement is terminated:
(a) Borrower shall keep the Collateral free from any
adverse lien, security interest or encumbrance (other than the security
interest granted herein). Borrower is not authorized to, and shall not,
sell, transfer, deliver, dispose of, encumber or grant security
interests in the Collateral.
(b) Borrower shall and does hereby agree to indemnify and
hold Lender harmless against all claims, defenses, liabilities and
costs (including attorneys' fees) arising out of or in connection with
Borrower's ownership of the Collateral.
(c) Borrower shall ensure that Lender's security interest
in the Collateral is now, and will at all times hereafter remain, a
perfected, first priority security interest. Borrower shall (at its
expense) execute, obtain, deliver and (if applicable) file or record
all financing statements, consents, notices, control agreements and
other documents, and take all other actions, that Lender may reasonably
deem necessary or advisable to perfect or protect Lender's security
interest in the Collateral against the interests of third parties. To
the extent permitted by law, Borrower hereby authorizes Lender to file
a financing statement, in the applicable filing office, describing the
Collateral. Borrower agrees to pay all costs, taxes and fees payable in
connection with any such filings. Lender is hereby irrevocably
appointed Borrower's attorney-in-fact, which appointment is coupled
with an interest, to do all acts and things that Lender may deem
necessary to perfect and/or continue the perfection of the security
interest created by this Agreement and to protect the Collateral.
Borrower further agrees to pay all costs, taxes and fees payable in
connection with the filing or recording of any financing statements,
amendments, continuation statements or other filings.
(d) Borrower shall not change its chief executive offices
and principal places of business without giving Lender at least thirty
(30) days prior written notice thereof and (at Borrower's expense)
taking all steps necessary or advisable to preserve the perfection and
priority of the security interests granted to Lender herein.
(e) Borrower shall not change its name or the state in
which it is formed, without giving Lender at least thirty (30) days
prior written notice thereof and (at Borrower's expense) taking all
steps necessary or advisable to preserve the perfection and priority of
the security interests granted to Lender herein.
(f) Borrower will maintain adequate books and records
pertaining to the Collateral, in such detail, as Lender shall
reasonably require. Borrower will make a notation upon the Note (and
any permitted replacements thereof) to evidence Lender's security
interest hereunder.
3
6. BORROWER NOTIFICATION. Borrower will promptly notify Lender of
any default or breach by Moyes under the Moyes Note or any event that would have
a material adverse effect on the financial condition of Moyes or Lender's
security interest in the Collateral.
7. JOINT COVENANTS OF BORROWER AND MOYES. Borrower and Moyes each
severally covenant and agree that, until the Indebtedness is paid in full and
the Loan Agreement is terminated:
(a) Neither Borrower or Moyes will amend, restate, modify
or replace the Moyes Note or enter into any other indebtedness between
them, without the written consent of Lender;
(b) Borrower and Moyes agree and acknowledge that upon
the occurrence of an Event of Default or any continuation thereof, the
Lender may accelerate and demand full payment by Moyes of all amounts
outstanding under the Moyes Note, and Moyes shall make such payments
directly to Lender (for application to the Indebtedness) upon written
demand therefor. Moyes shall make such payment without any set-off,
counterclaim, or defenses he may have against Borrower;
(c) Neither Borrower nor Moyes may assign any right,
title, interest or obligation under the Moyes Note without the written
consent of Lender.
(d) The Borrower shall not waive or release any of its
rights or any obligations of Moyes under the Moyes Note or terminate
the Moyes Note (except upon full payment thereof) without the written
consent of Lender.
8. SPECIAL REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
BORROWER. With respect to the Collateral, Borrower represents, warrants and
agrees with Lender as follows:
(a) Representations. The original of the Note has been
delivered to Lender, and such Note is the only original thereof and is
genuine and in all respects, and arises out of a bona fide
indebtedness; the amount of the Note represented as owing is the
correct amount actually and unconditionally owing; and the Note
complies with applicable law.
(b) Collections. Effective upon the occurrence of and
during the continuation of an Event of Default, Lender shall have the
right to receive all payments under the Moyes Note and at Borrower's
expense, enforce, collect and receive all amounts owing on the Moyes
Note. Borrower will notify Moyes to make payment of all amounts due
under the Moyes Note directly to Lender. Any such amounts transmitted
to Lender may be deposited in an account in the name of Lender and
under its dominion and control pending its application to the
Indebtedness. Borrower shall not have any right, title or interest in
said account or in the amounts at any time to the credit thereof. All
proceeds so received by Lender shall be applied to the Indebtedness,
whether or not such Indebtedness shall by its terms then be due in
accordance with the Loan Agreement. Following the occurrence of an
Event of Default and during a continuation thereof, amounts received by
Borrower under the Moyes Note shall not be commingled with Borrower's
other property, but shall be segregated, held by Borrower in trust for
Lender
4
as Lender's exclusive property and immediately delivered by Borrower to
Lender in the identical form as that in which received, with proper
endorsements.
(c) Reports. Together with the fiscal period financial
information required under the Loan Agreement, Borrower shall submit to
Lender statements of the outstanding principal balance under the Moyes
Note.
9. BORROWER'S USE OF THE COLLATERAL. As long as no Event of
Default has occurred, Borrower may collect all amounts paid thereunder, subject
to any conditions set forth in this Agreement. Upon the occurrence of an Event
of Default and during a continuation thereof, Borrower's right to collect any
amounts paid under the Collateral shall terminate automatically until further
written notice from Lender.
10. EVENTS OF DEFAULT. Any of the following events shall be
considered an "EVENT OF DEFAULT" (and shall be considered a "DEFAULT" pending
the passage of time, giving of notice or other condition specified below):
(a) Loan Agreement. An "Event of Default," as such term
is defined in the Loan Agreement, occurs; or
(b) Perfection. Lender's security interest in the
Collateral fails to be a perfected, first-priority security interest
therein; or
(c) Moyes Default. Moyes shall default under or breach
any provision of the Moyes Note; or
(d) Representations and Warranties. Any representation,
warranty, statement, certification or data made or furnished by or on
behalf of Borrower or Moyes hereunder is incorrect in any material
respect as of the date as of which the facts therein set forth were
stated or certified; or
(e) Obligations. Borrower or Moyes fails to perform any
of its respective promises, agreements, covenants or obligations (which
failure or breach is not otherwise an Event of Default under any other
subsections hereof) contained in or required by this Agreement and such
failure is not cured within twenty (20) days from Lender's written
notice thereof; or
(f) Collateral. The Collateral is sold, transferred,
assigned, encumbered or otherwise disposed of without the prior written
consent of Lender; or
(g) Insolvency. Any bankruptcy case, assignment for the
benefit of creditors, receivership or other state, federal or foreign
insolvency proceeding is commenced with respect to Moyes, or Moyes
becomes insolvent or is generally not paying his debts as they become
due.
11. REMEDIES. Upon the occurrence of any Event of Default, and at
any time thereafter, at the option of Lender, any and all Indebtedness shall
become immediately due and payable without presentment or demand or any notice
to Borrower or any other entity obligated
5
thereon, and Lender shall have and may exercise any or all of the rights and
remedies of a secured party under the applicable Uniform Commercial Code as now
or hereafter adopted (the "UCC"), and as otherwise contractually granted herein
or under any other applicable law or under any other agreement executed by
Borrower in favor of Lender. Lender shall have the right to collect on the
Collateral, to demand full payment of the Moyes Note within thirty (30) days of
written demand by Lender, and to exercise and enforce any of Borrower's rights
with respect to any Collateral (including supporting obligations), all in any
manner authorized or permitted under the UCC. Lender shall apply the proceeds
thereof toward payment of the Indebtedness in the manner as set forth in the
Loan Agreement.
12. WAIVERS. Except as expressly provided herein, and to the
fullest extent permitted by law, Borrower and Moyes hereby waive (i)
presentment, demand and protest and notice of presentment, protest, default, non
payment; (ii) any bond or security that might be required by any court before
allowing Lender to exercise any of Lender's remedies; (iii) any marshalling of
assets, or any right to compel Lender to resort first or in any particular order
to any other collateral or other entities before enforcing its rights as to the
Collateral; (iv) the benefit of all valuation, appraisement and exemption laws
(v) notice of acceptance hereof; and (vi) any other claims and defenses based on
principles of suretyship or impairment of collateral.
13. GENERAL AUTHORITY. Effective immediately but exercisable by
Lender (or by any person or entity designated by Lender) only upon the
occurrence of and during the continuation of an Event of Default, Borrower
hereby irrevocably appoints Lender (or any person or entity designated by
Lender) as Borrower's true and lawful attorney-in-fact, which appointment is
hereby coupled with an interest, with full power of substitution, in Lender's
name or Borrower's name or otherwise, for Lender's sole use and benefit, but at
Borrower's cost and expense, to exercise at any time and from time to time all
or any of the following powers with respect to all or any of the Collateral:
(a) To receive all payments under the Moyes Note;
(b) To take or bring, in Borrower's name or Lender's
name, all actions, suits or proceedings deemed by Lender necessary or
desirable to effect collection of the Moyes Note, and to compromise or
adjust payments under the Moyes Note;
(c) To require payment of the entire principal balance
and all accrued interest or other payments under the Moyes Note (as set
forth in Section 11 hereof), whether or not due and whether or not a
default exists under the terms of the Moyes Note; and
(d) In general, to do all things necessary to perform the
terms of this Agreement and to take any action or proceedings that
Lender deems necessary or appropriate to protect and preserve Lender's
security interest in the Collateral.
In any event, however, Lender's exercise of or failure to exercise any such
authority shall in no manner affect Borrower's liability to Lender hereunder or
in connection with the Indebtedness; Lender shall be under no obligation or duty
to exercise any of the powers hereby conferred upon Lender; and Lender shall
have no liability for any act or failure to act in connection with the
Collateral.
6
14. LENDER'S POWERS AND LIMITED DUTIES.
(a) Lender shall be under no duty to collect any amount
that may be or become due under the Collateral, to redeem or realize on
Collateral, to collect principal or interest, to make any presentments,
demands or notices of protest in connection with the Collateral, to
take any steps necessary to preserve rights in any instrument against
third parties or to preserve rights against prior parties, to remove
any liens or to do anything for the enforcement, collection or
protection of Collateral, except to the extent, if any, that the UCC
requires Lender to use reasonable care with respect to Collateral while
in its possession; and
(b) Without limiting the generality of any of the
foregoing, Lender shall be in no way liable to or responsible for any
diminution in the value of the Collateral from any cause whatsoever.
15. MISCELLANEOUS
(a) Notices. Any notices, requests, demands, directions
and other communications (collectively "Notices") required under this
Agreement shall be in writing and shall be deemed to be communicated
upon the earliest of (i) personal delivery, (ii) the third business day
after the record is deposited in the United States mail, with prepaid
postage, for delivery by registered or certified mail with return
receipt requested, (iii) the business day after the notice is
delivered, with prepaid postage, for overnight delivery, to a
nationally known courier service maintaining records of receipt and
(iv) twelve (12) hours after sender receives confirmation of successful
transmission by facsimile. Except as expressly provided otherwise
herein, all notices shall be communicated to the following addresses:
If to Lender: If to Borrower:
SunTrust Bank Central Freight Lines, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxx Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
If to Moyes: With a copy to:
Xxxxx Xxxxx Xxxxxxx Law Firm
0000 Xxxxx 00xx Xxxxxx 000 Xxxxxxxx
X. X. Xxx 00000 000 X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000 Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000 Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
The applicable address stated above shall be effective for a party
until the party changes such address by writing communicated by such
party in accordance with this Section.
7
(b) Invalidity. If any one or more of the provisions
contained in this Agreement for any reason shall be held invalid,
illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provision of this
Agreement.
(c) Survival of Agreements. All representations and
warranties of Borrower and Moyes in this Agreement and all covenants
and agreements in this Agreement not fully performed before the
execution of this Agreement shall survive the execution hereof.
(d) Successors and Assigns. This Agreement shall be
binding on and inure to the benefit of Lender and its successors and
assigns, shall be binding on Borrower, its permitted successors and
assigns, and Moyes, his estate and his permitted successors or assigns.
Lender may assign the Indebtedness and/or enter into participation or
syndication agreements with other lenders on such terms and conditions
as Lender shall deem advisable. Neither Borrower nor Moyes shall assign
their respective rights or delegate their respective duties under this
Agreement without the written consent of Lender.
(e) Renewal, Extension, or Rearrangement. All provisions
of this Agreement relating to Indebtedness shall apply with equal force
and effect to each and all promissory notes or other agreements
executed hereafter that in whole or in part represent a renewal,
extension for any period, increase, or rearrangement of any part of the
Indebtedness originally represented by any part of such other
Indebtedness.
(f) Waivers. No custom, conduct, action or course of
dealing on the part of Lender, its officers, employees, consultants, or
agents, nor any failure or delay by Lender with respect to exercising
any right, power, or privilege of Lender hereunder shall operate as a
waiver thereof. Lender may from time to time waive any requirement
hereof, including any conditions precedent, but no waiver shall be
effective unless in writing and signed by Lender. The execution by
Lender of any waiver shall not obligate Lender to grant any further,
similar, or other waivers. No waivers shall be implied hereunder as a
result of Lender's disbursements or investigations or any other action
other than a specific written waiver.
(g) Amendments. This Agreement may not be modified or
amended except in writing signed by Borrower, Moyes and Lender.
(h) Remedies. All remedies provided in this Agreement
shall be cumulative, in addition to all other remedies available to
Lender under any other agreement or the principles of law and equity or
pursuant to any other body of law, statutory or otherwise, and the
exercise or partial exercise of any such right or remedy shall not
preclude the exercise of any other right or remedy. All such remedies
may be exercised separately, successively or concurrently
(i) No Fiduciary Relationship. Nothing contained herein
or in any related document shall be deemed to create any partnership,
joint venture or other fiduciary relationship among Lender, Borrower
and Moyes for any purpose.
8
(j) Time of Essence. Time is of the essence with regard
to each and every provision of this Agreement.
(k) Costs, Expenses, and Taxes. Borrower agrees to pay on
demand all out-of-pocket costs and expenses of Lender (including the
reasonable fees and out-of-pocket expenses of Lender's attorneys)
incurred by Lender in connection with enforcement of this Agreement, or
in the protection of Lender's rights hereunder. Upon Lender's request,
Borrower shall promptly reimburse Lender for all amounts expended,
advanced, or incurred by Lender in endeavoring to satisfy any
obligation of Borrower under this Agreement, or to perfect a lien in
favor of Lender, or to protect the Collateral or to collect the
Indebtedness, or to enforce or protect the rights of Lender under this
Agreement, and all such amounts shall bear interest the default rate
payable under the Note (but not in excess of the maximum rate permitted
under applicable law) until paid in full. All obligations under this
Section shall be part of the Indebtedness and shall survive any
termination of this Agreement.
(l) Counterparts. This Agreement may be executed in any
number of counterparts or counterpart signature pages (by facsimile
transmission or otherwise), each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute but one
and the same instrument.
(m) Distribution of Information. Under the terms and
provisions of the Loan Agreement, Borrower hereby authorizes Lender, as
Lender may elect in its sole discretion, to discuss with and furnish to
any affiliate of Lender, to any government or self-regulatory agency
with jurisdiction over Lender, or to any participant or prospective
participant, all financial statements, audit reports and other
information pertaining to Borrower and/or its subsidiaries whether such
information was provided by Borrower or prepared or obtained by Lender
or third parties. Neither Lender nor any of its employees, officers,
directors or agents make any representation or warranty regarding any
audit reports or other analyses of Borrower which Lender may elect to
distribute, whether such information was provided by Borrower or
prepared or obtained by Lender or third parties, nor shall Lender or
any of its employees, officers, directors or agents be liable to any
party receiving a copy of such reports or analyses for any inaccuracy
or omission contained in such reports or analyses or relating thereto.
(n) Jurisdiction; Venue; Service of Process. BORROWER,
MOYES AND LENDER HEREBY IRREVOCABLY CONSENT TO THE JURISDICTION OF THE
COURTS LOCATED IN DAVIDSON COUNTY, TENNESSEE, INCLUDING FEDERAL COURTS
SITTING IN THE MIDDLE DISTRICT OF TENNESSEE AND THE CHANCERY COURT FOR
DAVIDSON COUNTY, TENNESSEE, FOR ANY SUIT BROUGHT OR ACTION COMMENCED IN
CONNECTION WITH THIS AGREEMENT. Borrower and Moyes irrevocably consent
to the service of process of any such courts in any such action or
proceeding by registered or certified mail, postage prepaid, return
receipt requested, to Borrower at the address provided pursuant to
Section 15(a) hereof, and agree that such service shall become
effective thirty (30) days after such mailing. However, nothing herein
shall affect the right of Lender, Moyes or Borrower to serve process in
any other manner permitted by law or to
9
commence legal proceedings or otherwise proceed against Lender, Moyes
or Borrower in any other jurisdiction. This Section does not confer or
expand any standing to Borrower to bring any cause of action.
(o) Jury Waiver. EACH OF BORROWER, MOYES AND LENDER
HEREBY KNOWINGLY, WILLINGLY AND IRREVOCABLY WAIVES THEIR RIGHTS TO
DEMAND A JURY TRIAL IN ANY ACTION OR PROCEEDING INVOLVING THIS
AGREEMENT.
(p) Waiver of Damages. IN ANY ACTION TO ENFORCE THIS
AGREEMENT, EACH OF THE PARTIES HERETO, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS UNDER THE LAWS OF ANY STATE
TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR
OTHER DAMAGES OTHER THAN ACTUAL DIRECT DAMAGES.
(q) Governing Law. This Agreement constitutes a contract
made under and shall be construed and interpreted in accordance with
the laws of the State of Tennessee (without regard to its rules on
conflicts of laws), except to the extent, if any, that the location of
the Borrower or the Collateral may require the application of other law
to govern the perfection of security interests in the Collateral.
(r) No Third Party Beneficiary. This Agreement is for the
sole benefit of Lender, Moyes and Borrower and is not for the benefit
of any third party.
(s) Dealings With Borrower. It is expressly understood
and agreed that, notwithstanding anything else contained in this
Agreement, Lender may for all purposes hereof deal solely with Borrower
in connection therewith, and nothing herein or in any other Loan
Document shall be construed so as to require dealings with, consent of
or notice to any other entities, parties or persons, including Moyes.
(t) Further Assurances. Borrower and Moyes agree that
they will without further consideration execute and deliver such other
documents and take such other action as Lender may reasonably request
from time to time to implement the transactions contemplated hereby.
(u) Continuation and Survival. All covenants, agreements,
representations and warranties made in or pursuant to this Agreement
shall be deemed continuing and made at and as of the date hereof and at
and as of all times thereafter. All statements contained in any
certificate, financial statement or other instrument delivered by
Borrower pursuant to or in connection with this Agreement shall
constitute additional representations and warranties made under this
Agreement.
16. CONSTRUCTION AND USAGE.
(a) Defined Terms. In addition to other words and terms
defined in this Agreement, the following terms have the following
meanings herein, unless the context expressly requires otherwise:
10
"BUSINESS DAY" means any day other than a Saturday, Sunday or
day on which commercial banks are authorized to close under the laws of
the State of Tennessee.
"ENTITY" or "PERSON" means any individual, corporation,
partnership, joint venture, association, limited liability company,
joint stock company, trust, unincorporated organization, government, or
any agency or political subdivision thereof, or any other form of
entity.
"HEREOF", "HEREIN" and "HEREUNDER" and words of similar import
in this Agreement refer to this Agreement as a whole and not to any
particular provision, and references to Sections, subsections,
schedules and exhibits are to this Agreement unless otherwise
specified.
"INCLUDES" and "INCLUDING" and words of similar import are
inclusive and not exclusive terms, and are not intended to create any
limitation.
(b) Usage; Captions. All definitions and other terms used
in this Agreement are equally applicable to the singular and plural
forms thereof, and all references to any gender include all other
genders. The captions in this Agreement are for convenience only, and
in no way limit or amplify the provisions hereof.
(c) UCC Terms. Terms used in this Agreement that are
defined in Article 9 of the UCC shall have the same meanings herein,
except as otherwise expressly provided or amplified (but not limited)
herein.
(d) References to Documents and Laws. All defined terms
and references in this Agreement with respect to any agreements, notes,
instruments, certificates or other documents shall be deemed to refer
to such documents and to any amendments, modifications, renewals,
extensions, replacements, restatements, substitutions and supplements
of and to such documents. Unless otherwise provided, all references to
statutes and related regulations shall include any amendments thereof
and any successor statutes and regulations.
(e) Exhibits. The exhibits and schedules attached to this
Agreement are incorporated in this Agreement and shall be considered a
part of this Agreement, except that in the event of any conflict
between an exhibit and this Agreement, the provisions of this Agreement
shall prevail over the exhibit.
(f) Computations; Accounting Principles. Where the
character or amount of any asset or liability or item of income or
expense is required to be determined, or any consolidation or other
accounting computation is required to be made for the purposes of this
Agreement, such determination or calculation, to the extent applicable
and except as otherwise specified in this Agreement, shall be made in
accordance with generally accepted accounting principles applied on a
consolidated basis consistent with those in effect on the date hereof.
11
17. ENTIRE AGREEMENT.
(a) Complete Agreement. This Agreement, together with the
Note, the Loan Agreement and the other Loan Documents, represents the
entire and complete agreement between the parties hereto with respect
to the subject matter hereof and supersedes any and all other
agreements, promises or representations existing prior to or made
simultaneously with this Agreement, whether written, oral or implied.
Any oral statements regarding the subject matter of this Agreement are
merged herein.
12
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date set forth above.
BORROWER: LENDER:
CENTRAL FREIGHT LINES, INC., SUNTRUST BANK
a Texas Corporation
By: /s/ Xxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- -------------------------------
Name: Xxxxxxx X. Curryt Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President Title: Vice President
/s/ Xxxxx X. Xxxxx
-----------------------------------
XXXXX X. XXXXX
13
