1
EXHIBIT 10.7
AMSOUTH(R) BANK
MASTER NOTE FOR BUSINESS AND COMMERCIAL LOANS Montgomery, Alabama
$ 2,500,000.00 July 7, 2000
Date
FOR VALUE RECEIVED, the undersigned (hereinafter called, whether one or
more, the "Borrower"), jointly and severally (if more than one) promises to pay
to the order of AmSouth Bank, its successors and assigns (hereinafter sometimes
called the "Bank" and sometimes, together with any other holder of this note,
called "Holder"), at any office of Holder or at such other place as Holder may
from time to time designate, the sum of ***Two Million Five Hundred Thousand and
00/100***Dollars ($ 2,500,000), or so much thereof as the Bank has advanced to
the Borrower hereunder (the "Loan"), plus interest from the date hereof until
maturity (whether by acceleration or otherwise) on the outstanding unpaid
principal balance of the Loan, at the rate of [check (1), (2), or (3)]:
[ ] (1)________ % per annum.
[ ] (2)________ % per annum in excess of the prime rate of the Bank in
effect from time to time as designated by the Bank (the "Prime Rate"),
with changes in the interest rate on this note caused by changes in the
Prime Rate to take effect on the date the Prime Rate changes without
notice to the Borrower or any action by Holder.
[x] (3) See Exhibit "A" attached hereto and by this reference becomes a
party hereto.
Interest will be computed on the basis of the actual number of days elapsed
over (check one) [x] to the extent allowed by applicable law, an assumed 360-day
year, [ ] a 365 (or 366-, if leap year) day year.
If none of the foregoing provisions for a rate of interest is checked, the
rate of interest payable on the Loan until maturity (whether by acceleration or
otherwise) shall be the Prime Rate of the Bank in effect from time to time, or
such lesser rate as shall be the maximum permitted by law, computed on the basis
of the actual number of days elapsed over an assumed 360-day year.
Notwithstanding anything to the contrary contained in this note, the amount
paid or agreed to be paid as interest on the principal
The Borrower hereby agrees to repay principal and interest as follows:
The Borrower will pay the principal amount of the Loan (check one and
complete if applicable:)
[ ] on demand, [x] 364 days after date, or
[ ] _______________________________________________________________________
______________________________________________________________________,
and will pay the interest on the Loan (check one and complete if
applicable):
[ ] at maturity, [x] in monthly installments on the 6th day of each
month hereafter, and at maturity
[ ] in quarterly installments on the _____ day of each __________, _______,
_____________, and ______________________ hereafter and at maturity, or
[ ] _______________________________________________________________________
______________________________________________________________________.
For purposes of sending periodic billing statements in advance of each
interest payment date, at the Holder's option, the Prime Rate in effect 15 days
prior to each interest payment date shall be deemed to be the Prime Rate that
continues in effect until the date prior to such interest payment date for
purposes of computing the amount of interest payable on such interest payment
date. If the Prime Rate changes during such 15-day period, the difference
between the amount of interest that in fact accrues during such period and the
amount of interest actually paid will be added to or subtracted from, as the
case may be, the interest otherwise payable in preparing the periodic billing
statement for the next succeeding interest payment date. In determining the
amount of interest payable at the final maturity or upon full prepayment of
this Master Note, all changes in the Prime Rate occurring on or prior to the
day before the final maturity date or the date of such full prepayment shall be
taken into account.
If none of the foregoing provisions for the repayment of principal and/or
interest is checked, the principal, if not checked, and interest, if not
checked, due hereunder shall be payable on demand of the Holder.
For purposes of sending periodic billing statements in advance of each
interest payment date, at the Holder's option, the Prime Rate in effect 15 pays
prior to each interest payment date shall be deemed to be the Prime Rate that
continues in effect until the date prior to such interest payment date for
purposes of computing the amount of interest payable on such interest payment
date. If the Prime Rate changes during such 15-day period, the difference
between the amount of interest that in fact accrues during such period and the
amount of interest actually paid will be added to or subtracted from, as the
case may be, the interest otherwise payable in preparing the periodic billing
statement for the next succeeding interest payment date. In determining the
amount of interest payable at the final maturity or upon full prepayment of
this Master Note, all changes in the Prime Rate occurring on or prior to the
day before the final maturity date or the date of such full prepayment shall be
taken into account.
If none of the foregoing provisions for the repayment of principal and/or
interest is checked, the principal, if not checked, and interest, if not
checked, due hereunder shall be payable on demand of the Holder.
If permitted under applicable law, the Borrower agrees to pay to Holder, on
demand, a late charge. This late charge will be 5% of any installment that is
not paid within 12 days after it is due and will be 5% of the interest portion
of the payment due upon the final maturity date of this note if that payment is
not paid within 12 days after it is due. This late charge will never be less
than $10 nor more than $250 on each payment. This provision shall not be deemed
to excuse a late payment or be deemed a waiver of any other right Holder may
have, including, without limitation, the right to declare the entire unpaid
principal and interest immediately due and payable.
All payments coming due on this Master Note shall be made in cash or
immediately available funds at the Holder's office at which the payment is made.
At its option, the Holder may elect to give the Borrower credit for any payment
made by check or other instrument in accordance with the Holder's availability
schedule in effect from time to time for such items and instruments, which the
Holder will make available to the Borrower on request. Each payment on the
indebtedness evidenced hereby will first reduce charges owed by the Borrower
that are neither principal nor interest. The remainder of each payment will be
applied first to accrued but unpaid interest and then to unpaid principal. Any
partial prepayments of principal will be applied to installments due in the
inverse order of their maturity and no such partial prepayment of principal will
have the effect of postponing, satisfying, reducing, or otherwise affecting any
scheduled installment before the principal of and interest on the Loan is, and
all other charges due hereunder are, paid in full.
This note is a master note, and it is contemplated that the proceeds of the
Loan evidenced hereby will be advanced from time to time to the Borrower by
Holder in installments, as requested by the Borrower and agreed to by Xxxxxx. It
is further contemplated that any amounts advanced under this note may be prepaid
from time to time by the Borrower and subsequently re-advanced by Xxxxxx, so
long as the principal amount outstanding does not exceed the face amount of this
note. By reason of prepayments hereon there may be times when no indebtedness is
owing hereunder, and notwithstanding any such occurrence, this note shall remain
valid and shall be in full force and effect as to each subsequent principal
advance made hereunder. The Holder shall maintain a record (by computer or
otherwise) of all principal advances and repayments under this Master Note and
that record shall be presumed to be correct in the absence of clear and
convincing evidence to the contrary.
Unless the Holder has otherwise agreed in writing, the Holder is not
obligated to make any advances or re-advances hereunder, and all advances and
re-advances shall be made at the option of Xxxxxx. This note shall be valid and
enforceable as to the aggregate amount advanced at any time hereunder, whether
or not the full face amount hereof is advance.
If the Loan is payable on demand, this paragraph is inoperative and is not
applicable; otherwise, this paragraph is operative and applies to the Loan in
accordance with its terms. In the event of default in the payment of any one or
more installments of principal or interest which may become due hereunder, when
and as the same fall due, or in the payment of all of principal and interest due
hereunder at maturity, or the failure of any maker, endorser, surety or
guarantor hereof (hereinafter called the "Obligors") to pay when due or perform
any of the Obligations (meaning thereby this note and any and all renewals and
extensions thereof and all other liabilities and indebtedness of the Borrower to
Holder, now existing or hereafter incurred or arising, direct or indirect, and
however incurred) or any part thereof or the failure of any Obligor to pay when
due any other liability to Holder, in the event a default occurs under the terms
of any loan agreement or other instrument (other than this note), document or
paper evidencing, securing, guaranteeing, or executed in connection with all or
any part of the Obligations (hereinafter, together with this note, collectively
called the "Loan Documents"), or in the event Holder shall in good xxxxx xxxx
itself insecure for any reason, or on the happening of any one or more of said
events, Holder shall have the right at its election and without notice to any
Obligor to declare the Obligations immediately due and payable with interest to
date. No delay in making such election shall be construed to waive the right to
make such election. Holder may note the fact of acceleration hereon without
stating the ground therefor and whether or not noted hereon such election to
accelerate shall be effective.
In the event of death of, insolvency of, general assignment by, judgment
against, filing of a petition in bankruptcy by or against, filing a petition for
the reorganization of, filing of application in any court for receiver for, or
issuance of a writ of garnishment or attachment in a suit or action against any
Obligor or against any of the assets of any Obligor, or on the happening of any
one or more of said events, the Obligations shall, without notice to or demand
upon any Obligor, immediately become due and payable with interest to date
unless Holder shall on notice of such event elect to waive such acceleration by
written notation hereon.
Each of the Obligors hereby severally (a) waives as to this debt or any
renewal or extension thereof all rights of exemption under the Constitution or
laws of Alabama or any other state as to personal property; (b) waives demand
(unless this note is payable on demand), presentment, protect, notice of
protest, notice of dishonor, suit against any party and all other waivable
requirements necessary to hold any Obligor liable; (c) agrees that time of
payment may be extended one or more times for any period of time (whether such
period is shorter or longer than the initial term of this note) or renewal notes
taken or other indulgence granted without notice of or consent to such action
and without release of liability as to any Obligor; (d) as to all or any part of
the Obligations, consents to Holder's releasing, agreeing not to sue, suspending
the right to enforce this instrument against or otherwise discharging or
compromising any Obligation of any Obligor or other person against whom any
Obligor has to the knowledge of Holder a right of recourse, all without notice
to or further reservations of rights against any Obligor, and all without in any
way affecting or releasing the liability of any Obligor; (e) consents to
Holder's releasing, exchanging or otherwise dealing in any manner with all or
any portion of any collateral, lien, or right of set-off which may now or
hereafter secure this note, all without notice to or further reservations of
rights against any Obligor, and all without in any way affecting or releasing
the liability of any Obligor, even though such release, exchange or other
dealing may in any manner and to any extent impair any such collateral, lien or
right of set-off; (f) agrees to pay all costs of collecting or securing or
attempting to collect or secure this note or defending any unsuccessful claim
asserted against the Holder in connection with this note, including reasonable
attorneys' fees; and (g) warrants that this Loan is for business, commercial or
agricultural purposes.
In addition to all liens upon, and rights of set-off against, any monies,
securities, or other property of any of the Obligors given to Holder by law,
Holder shall have a lien upon and a right of set-off against all monies,
securities and other property of any of the Obligors now or hereafter in the
possession of, or on deposit with, Holder, whether held in a general or special
account or deposit, for safekeeping, or otherwise; and every such lien and right
of set-off may be exercised without demand upon or notice to any Obligor, and
the Bank shall have no liability with respect to any of Obligor's checks or
other items which may be returned or other funds transfers which may not be made
due to insufficient funds thereafter.
The Borrower understands that the Bank may from time to time enter into a
participation agreement or agreements with one or more participants pursuant to
which such participant or participants shall be given participations in the Loan
and that such participants may from time to time similarly grant to other
participants sub-participations in the Loan. The Borrower agrees that any
participant may exercise any and all rights of banker's lien or set-off whether
arising by operation of law or given to Holder by the provisions of this note,
with respect to the Borrower as fully as if such participant had made the Loan
directly to the Borrower. For the purposes of this Paragraph only, the Borrower
shall be deemed to be directly obligated to each participant or subparticipant
in the amount of its participating interest in the principal of, and interest
on, the Loan.
Neither any failure nor any delay on the part of Holder in exercising any
right, power or privilege under this note shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise or the exercise of any other right power or privilege. No modification,
amendment or waive of any provisions of this note shall be effective unless in
writing and signed by a duly authorized officer of Holder, and then the same
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Obligor in any case shall entitle Obligor
to any other or further notice or demand in the same, similar or other
circumstances.
Any provision of this note which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
The provisions of this note shall inure to the benefit of the Holder, its
successors and assigns and shall be binding upon their heirs, successors and
assigns of each Obligor, except that no Obligor may assign or transfer his, her
or its obligation hereunder without the written consent of Xxxxxx.
All rights, powers and remedies of Holder under this note and now or
hereafter existing at law, in equity or otherwise shall be cumulative and may be
exercised successively or concurrently.
The Loan Documents contain the entire understanding and agreement between
the Borrower and the Holder with respect to the Loan and supersede any and all
prior agreements, understandings, promises, and statements with respect to the
Loan. This Master Note may not be modified, amended, or supplemented in any
manner except by a written agreement executed by both the Borrower and the
Holder.
This note shall be construed in accordance with and governed by the laws
of the State of Alabama.
This agreement is executed under seal by the Borrower of each of them.
CAUTION-IT IS IMPORTANT THAT YOU THOROUGHLY READ THIS MASTER NOTE
BEFORE YOU SIGN IT
No. 468156 702159 Xxxx Xxxxxxxx Transportations, Inc.
-------------- ----------------------------------- [SEAL]
Due July 6, 2001 By: /s/ Xxxxxxx X. Xxxxxx
-------------- ----------------------------------- [SEAL]
Its: CFO
----------------------------------- [SEAL]
----------------------------------- [SEAL]
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2
GUARANTY OF NOTE
For value received and in consideration of the credit extended or to be
extended to the maker or makers (whether one or more, called the "Maker") of the
master note on the reverse side hereof (together with any extension and renewal
thereof called the "Note") by the payee hereof (together with its successors and
assigns and every subsequent holder of the Note called the "Holder"), which the
undersigned requested, and in further consideration of the sum of ten dollars
and other good and valuable consideration to the undersigned in hand paid by
said payee, the receipt and sufficiency of which are hereby acknowledged, the
undersigned (if more than one, jointly and severally) hereby (a) unconditionally
and absolutely guarantees to the Holder the prompt payment, when and as due and
payable (whether by acceleration or otherwise), of all indebtedness evidenced by
the Note, including without limitation principal, interest, Recovered payments
(as hereinafter defined), costs, and expenses (collectively, the "Debts") and
agrees to pay any of the Debts on demand at any time after the maturity thereof;
(b) agrees to be bound by all of the terms and provisions of the Note (including
the terms waiving notice and agreeing to pay costs and expenses of collection,
such as reasonable attorneys' fees, in the event of default); (c) agrees that
the Holder will not be required first to resort to the maker or any other
endorser, surety, or guarantor (each maker, other endorser, surety, or guarantor
being hereinafter individually called an "Obligor") or to any guaranty or other
security (collectively, the "Collateral") pledged or granted to it by any
instrument or agreement (collectively, the "Security Documents" and individually
, a "Security Document"), or otherwise assigned or conveyed to it, but in case
of default in the payment of any of the Debts, the Holder may forthwith look to
the undersigned, jointly and severally, for payment under the provisions hereof;
(d) agrees that the obligations of the undersigned hereunder are absolute,
unconditional, present and continuing guaranties of payment and not collectively
and shall not be subject to any counterclaim, recoupment, set-off, reduction or
defense based upon any claim that the undersigned, or any of them, may have
against the Maker, the Holder or any Obligor; (e) agrees that any of the Debts
may be renewed, extended or modified, in whole or in part, by the execution of a
new Note or otherwise, and this guaranty shall be made to extend to and cover
such extended, renewed or modified Debts, on whatever terms and conditions the
same may be extended, renewed or modified, without the necessity for the
undersigned to execute any new guaranty agreement guaranteeing or Note
evidencing the same or any other document and without regard to the number of
times or the manner in which the same may have been or shall be extended,
renewed or modified; (f) agrees that the obligations and liabilities of the
undersigned hereunder shall not be discharged, impaired, modified or otherwise
affected by (i) the unenforceability, non-existence, invalidity, non-perfection,
or impairment of the Note, any of the Debts, any Collateral or any Security
Document, (ii) any understanding or agreement that any other person, firm or
corporation was or is to sign, guarantee or become bound on or for the Note or
any Security Document, (iii) the Holder's resort or failure or refusal to resort
to any other security or remedy for the collection of any of the Debts, (iv) the
sale, exchange, release or surrender of any of the Collateral or the release or
discharge of any Obligor, (v) the death or bankruptcy of any Obligor, or in the
case of such death or bankruptcy, the failure of the Holder to file a claim
against the estate of such deceased or bankrupt Obligor, (vi) any renewal,
extension, modification, amendment, supplement, or change in the status or terms
of the Note, the Debts, any Collateral, or Security Document, (vii) any default
by the maker under the Note or any Security Document, (viii) any compromise,
settlement, release, discharge, termination, waiver, or extension of time for
payment, performance, or observance of any of the Debts, (ix) the application of
any payments, proceeds of Collateral or other sums to the Debts or any other
indebtedness, obligations or liabilities of the Maker to the Holder, now or
hereafter existing, in such order as the Holder may elect, (x) any exercise or
non-exercise of any right, remedy, power, or privilege of the Holder with
respect to the Debts, any Collateral or any Obligor, (xi) any failure, omission,
delay or lack of diligence on the part of Holder to enforce, assert or exercise
any such right, power, privilege, or remedy, or (xii) any claim (including, but
not limited to, a counterclaim) that any Obligor may have against the Holder,
(viii) any other event, circumstance, or condition, and (g) agrees that it shall
not be necessary for the Holder to give the undersigned notice of, or obtain
consent or approval of the undersigned in connection with, (i) the making of any
advances or extensions of credit under the Note, (ii) any of the matters set
forth in clauses (a) through (f) hereof, or (iii) the Holder's acceptance of
this agreement and reliance thereon.
This Guaranty, and the undersigned's obligations hereunder shall
continue to be effective or be automatically reinstated, as the case may be,
any time payment of all or any part of the Debts is recovered (a "Recovered
Payment") from the Holder as a result of a preference or other claim made under
any bankruptcy, insolvency, dissolution, liquidation, reorganization,
receivorship, or similar law or otherwise. The collateral, if any, securing this
Guaranty may be held by the Holder until it is satisfied that all time periods
during which the payment of all or any part of the Debts may be recovered from
the Holder as a result of a preference or other claim under any bankruptcy,
insolvency, dissolution, liquidation, reorganization, receivorship, or similar
law or otherwise have elapsed.
Any act or circumstance that shall toll any statute of limitations
applicable to the Debts shall also toll the statute of limitations applicable to
the undersigned's liability for the Debts under this Guaranty.
Each of the undersigned who now is or hereafter becomes an "insider,"
as defined in the 11 U.S.C. ss. 101 (or any amendment or successor thereto or
replacement thereof), of the maker herby waives and relinquishes all rights
(including without limitation rights or subrogation) that such undersigned now
has or hereafter may have to recover from or be reimbursed by the Maker or the
Maker's property, or from any person, firm, or corporation that may now or
hereafter have such a right to recover from or be reimbursed by the Maker or the
Maker's property, any amounts paid by such undersigned to satisfy, in whole or
in part, the Debts. The provisions of this paragraph are made for the express
benefit of the maker as well as the Holder and may be enforced independently by
the Maker.
This Guaranty, the Mater Note on the other side and all other
agreements or instruments evidencing, guaranteeing, securing, or executed in
connection with the Debts contain the entire understanding and agreement between
the undersigned and the Holder and supersede any and all prior agreements,
understandings, promises, and statements with respect to the Debts.
CAUTION-IT IS IMPORTANT THAT YOU THOROUGHLY READ THIS CONTRACT
BEFORE YOU SIGN IT.
[SEAL]
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[SEAL]
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3
EXHIBIT A
The interest rate on this note shall be one and three quarters percent (1.75%)
per annum in excess of the average offered rate in the London interbank market
for deposits in U.S. dollars for ninety (90) days (the "LIBOR Rate") as
published in the Wall Street Journal or such other comparable financial
information reporting service used by the Bank at the time such rate is
determined.
Xxxx Xxxxxxxx Transportation, Inc.
By: /s/ Xxxxxx Xxxxxx
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Its: CFO
July 7, 2000
