TRANSPORTATION ACCOUNTS FINANCING AND SECURITY AGREEMENT
This Transportation Accounts Financing and Security Agreement dated as of May
27, 1998 is by and between Associates Transcapital Services, a division of
ASSOCIATES COMMERCIAL CORPORATION ("Associates"), a Delaware corporation
having a place of business at 000 Xxxx Xxxxxxxxx Xxxxxxx, xxxxxx, Xxxxx 00000
and Gasel Transportation Lines, Inc. ("Borrower"), an Ohio corporation having
its chief executive office at Xx. 0 Xxx 000X Xxxxxx Xxxx 00 Xxxxxxxx, Xxxx
00000.
ARTICLE I - Definitions
1.01 As used in this Agreement, the words and phrases defined in this
Article I shall have the meanings so ascribed to them.
1.02 "Account" shall mean and refer to all of Borrower's accounts,
contract rights, instruments, documents, chattel paper, notes, drafts and
other forms of obligations owing to Borrower, however created.
1.03 "Agreement" shall mean and refer to this Accounts Financing and
Security Agreement and any supplement or amendment thereto.
1.04 "Applicable Jurisdiction" shall mean and refer to that
jurisdiction in which this Agreement is accepted by Associates.
1.05 "Business Day" shall mean calendar days other than Saturdays,
Sundays and legal holidays in the Applicable Jurisdiction.
1.06 "Collateral" shall mean and refer to all of Borrower's Accounts,
General Intangibles, acceptances, deposits, Deposit Accounts, and Records,
whether now existing or hereafter arising or acquired, and all cash and
non-cash proceeds of any of the foregoing, including, without limitation,
proceeds of insurance including returned and unearned premiums. There is also
included within the term "Collateral" all guaranties, liens and security
granted to or held by Borrower with respect to an Account or any other
obligation owing to Borrower.
1.07 "Deposit Accounts" shall mean and refer to any demand, time,
savings, passbook or like account maintained by Borrower with a bank, savings
and loan association, credit union or like organization other than an account
evidenced by a certificate of deposit.
1.08 "Eligible Accounts" shall mean and refer to those Accounts which
in the sole discretion of Associates are eligible for loans made by
Associates under this Agreement. Without limiting Associates' discretion, the
following Accounts are not Eligible Accounts and shall be ineligible for
Loans made by Associates under this Agreement: (a) Accounts which are sixty
(60) days or more past due; (b) Accounts which are more than ninety (90) days
old; (c) Accounts owing by a single account debtor if twenty percent (20%) or
more of such Accounts are sixty (60) days or more past due: (d) Accounts
owing by a single account debtor in excess of an amount equal to thirty
percent (30%) of all Accounts owing by all account debtors; (e) Accounts with
respect to which the account debtor is a subsidiary of, related to, or
affiliated with Borrower or has common shareholders, officers or directors
with Borrower; (f) Accounts in which Borrower is or may become liable to the
account debtor thereof for goods sold or services rendered by such account
debtor: (g) Accounts owing by the United States Government unless the amounts
due thereunder are to be paid to Associates under appropriate notifications
under the Assignment of Claims Act; (h) Accounts in which the account debtor
has raised any dispute or defense to payment of any kind; or (i) Accounts
owing by any account debtors not deemed by Associates to be credit worthy.
1.09 "General Intangibles" shall mean and refer to Borrower's general
intangibles, including, without limitation, all tax refunds of every kind and
nature to which Borrower is now or hereafter may be come entitled, no matter
however arising, all other refunds, goodwill, trade secrets, computer
programs, customer lists, trade names, trademarks, licenses and patents.
1. 10 "Obligations" shall mean and refer to all loans from time to time
made by Associates to Borrower and to others at the request of or for the
account of or for the benefit of Borrower, all other debts, liabilities and
obligations of Borrower to Associates of every kind and description (whether
or not evidenced by a note or other instrument and whether or not for the
payment of money), direct or indirect, absolute or contingent, joint or
several, primary or secondary, due or to become due, now existing or
hereafter arising, including, without limiting the generality of the
foregoing, any liability of Borrower to Associates as a guarantor of
indebtedness or liabilities of others and all interest, fees, charges and
expenses payable by Borrower hereunder, or any supplement or amendment hereto
or any other agreement between Borrower or Associates or any instrument
evidencing any of the foregoing.
1.11 "Person" or "Party" shall include individuals, firms,
corporations and all other entities, including, without limitation,
governments, governmental agencies and instrumentalities.
1.12 "Prime Rate" shall mean the per annum lending rate publicly
announced from time to time by The Chase Manhattan Bank, N.A. as its prime
rate, base rate or reference rate for unsecured loans of the shortest
maturity to corporate borrowers.
1.13 "Records" shall mean and refer to all of Borrower's books of
account of every kind and nature, including, without limitation, all
electronically recorded data relating to Borrower or its business and all
receptacles and containers for such records and all of Borrower's files and
correspondence.
1.14 "Receivable Loan Balance" shall mean and refer to that portion of
the Obligations which, on Associates' book of account, reflects the principal
and other charges owing from Borrower to Associates by reason of loans made
under this Agreement, or pursuant to any supplement hereto, or under any
other agreement which provides that loans thereunder shall constitute a
portion or the Receivable Loan Balance.
1.15 "Annual Period" shall mean and refer to the twelve month period
commencing on the first day of January and ending on the thirty first day of
December and each successive twelve month period thereafter.
1.16 All words and terms used in this Agreement and in any supplement
or amendment hereto other than those specifically defined in this Agreement
or such supplement or amendment shall be deemed to have the meanings accorded
to them in the Uniform Commercial Code as amended from time to time (herein
the "Code"), as in force in the Applicable Jurisdiction.
ARTICLE II - Loans. Fees and Interest
2.01 Subject to the terms and conditions of this Agreement, Associates
may from time to time lend to Borrower at Associates' sole discretion up to
85% of the face amount of Eligible Accounts outstanding from time to time or
such greater or lesser percentage as Associates may, from time to time,
establish: provided however, the aggregate amount of such outstanding loans
shall not exceed $1,000,000 ("Maximum Advance") at any time.
2.02 All loans made by Associates to Borrower pursuant to this
Agreement and all other Obligations which do not have a specific time for
payment shall be payable on demand at any time and for any reason with or
without the occurrence of any Event of Default (as hereinafter defined).
2.03 If the Receivable Loan Balance shall at any time exceed the then
effective percentage (as determined under Section 2.01) of the face amount of
Eligible Accounts, Borrower shall, on Associates'
demand, either (as specified in such demand) pay to Associates such excess or
grant and deliver to Associates such additional security as may be
satisfactory to Associates.
2.04 Until all Obligations of Borrower to Associates are fully paid and
performed, Borrower shall pay to Associates monthly, as of the last day of
each calendar month, interest at a -rate which shall be equal to the lesser
of (i) the sum of (x) the Prime Rate, plus (y) 1.0% per annum, or (ii) the
lawful maximum, if any, in effect from time to time in the Applicable
Jurisdiction for loans to borrowers of the type, in the amount, for the
purposes and otherwise of the kind herein contemplated. Such rate of interest
shall be computed on the daily IReceivable Loan Balance from the date accrued
until the date of payment and calculated on the basis of a 360-day year for
the actual number of days elapsed. The rate of interest payable hereunder
shall not be less than 8.0% per annum. The maximum increase per Annual Period
shall not exceed 2.0%.
Notwithstanding any other provision to the contrary set forth herein, if at
any time implementation of any provision hereof shall raise the interest rate
herein above the lawful maximum rate of interest, if any, in effect from time
to time in the Applicable Jurisdiction which may be charged by Associates for
loans to borrowers of the type, in the amount, for the purposes and otherwise
of the kind herein contemplated, then such interest rate shall be limited to
such lawful maximum and any excess interest inadvertently collected shall be
deemed to be a partial prepayment of principal and so applied.
2.05 Any increase or decrease in the Prime Rate shall be effective as
of the next Business Day following such adjustment and such adjusted Prime
Rate shall be the applicable Prime Rate in determining the rate of interest
payable hereunder.
2.06 All payments to be made by Borrower hereunder shall be paid to
Associates at its office designated above or at such other address as
Associates may designate in writing and Borrower unconditionally promises to
repay all loans and other obligations to Associates in the manner set forth
in this Agreement without the necessity on Associates' part of resorting to
or having recourse to the Collateral.
2.07 Associates shall furnish to Borrower monthly an extract or a
statement of Borrower's account with Associates, prepared from Associates'
records showing all applicable credits and debits, including all loans, other
charges and payments since the last statement. Each such statement shall be
considered true and correct and to have been accepted by Borrower and shall
be conclusively binding upon Borrower with respect to all matters contained
therein, unless Borrower notifies Associates in writing of any discrepancy or
exception within thirty (30)) days from the mailing by Associates to Borrower
of any such monthly statement.
2.08 In the event Associates shall so request, Borrower agrees to
execute and deliver to Associates such promissory notes, an example of which
is attached hereto as Exhibit A, as Associates shall request in order to
evidence the loans. Notwithstanding the issuance of any such note, the
monthly statements of Borrower's account with Associates shall constitute
prima facie evidence of the loans and other amounts owing from Borrower to
Associates.
2.09 Borrower shall pay Associates on the date of this Agreement a
closing fee of $5,000.00. On the first Business Day of each month after such
date, Borrower shall also pay Associates a fee in the amount of (a) the
Maximum Advance, less (b) the sum of the average daily Receivable Loan
Balance during the preceding month, multiplied by (c) one eighth of one
percent (.125%) per annum.
2.10 Borrower shall pay Associates a wire transfer fee of $10.00 for
each wire transfer Associates initiates under this Agreement and reimburse
Associates for exchange on checks, charges for returned items and all other
bank charges.
ARTICLE III- Grant of Security interest
3.01 As security for the payment and performance of all Obligations,
Borrower hereby assigns to Associates and grants to Associates a continuing
security interest in all Collateral.
3.02 Until all Obligations have been fully paid and performed, whether
or not this Agreement has been terminated as hereinafter provided, Associates
shall have and retain its security interest in and assignment of all
Collateral, whether or not any of such Collateral is deemed by Associates to
be eligible for loan purposes.
3.03 To the extent Borrower has heretofore granted or may hereafter
grant to Associates a security interest in or mortgage of any other real or
personal property, then such property shall, for the purposes of this
Agreement, be deemed to be "Collateral".
ARTICLE IV - Representations and Warranties
4.01 To induce Associates to enter into this Agreement and to make loans
hereunder, Borrower makes the representations and warranties contained in
this Article IV, each of which is acknowledged by Borrower to be a material
representation and warranty and each of which shall be deemed to be renewed
by Borrower upon each request to Associates to make a loan hereunder.
4.02 Borrower and each of its subsidiaries, if any, is a corporation
duly organized and existing under the laws of the state of its incorporation
and is in good standing
thereunder and is qualified to do business in every other state or
jurisdiction in which the nature of the business conducted or the property
owned therein requires it so to qualify.
4.03 The execution and delivery by Borrower of this Agreement and the
performance by Borrower of its Obligations hereunder are within Borrower's
corporate powers.
4.04 The execution and delivery of this Agreement has been duly
authorized by Borrower's Board of Directors and, to the extent required by
the laws of the state of its incorporation, by its stockholders.
4.05 There is no provision in the Articles of Organization, Agreement of
Association, Articles of Incorporation or the by-laws of Borrower or in any
indenture, contract or agreement to which Borrower is a party or by which
Borrower or Borrower's property is bound, which prohibits the execution and
delivery by Borrower of this Agreement or the payment and performance by
Borrower of the Obligations or pursuant to which such execution, delivery or
performance would, upon the giving of notice or the passage of time, or both,
result in a default thereunder.
4.06 Borrower has (or as to Collateral arising or acquired hereafter
will have) good, clear record and marketable title to the Collateral, free
and clear of all liens, pledges, charges, encumbrances and security interests
of every kind and nature.
4.07 All financial statements and information relating to Borrower and
each of its subsidiaries, if any, which have been furnished by Borrower to
Associates are true and correct, have been prepared in accordance with
generally accepted accounting principles consistently applied, and there has
been no material adverse change in the condition, financial or otherwise, of
Borrower or any of its subsidiaries, if any, since such submission.
4.08 There are no actions, suits, proceedings or investigations pending
or, to the knowledge of Borrower, its agents, servants or employees,
threatened against Borrower or any of its properties in any court, before any
other tribunal or before any federal, state, municipal or other governmental
authority. Neither Borrower nor any of its subsidiaries, if any, is in
default with respect to any order of any court,
other tribunal or governmental authority. The execution, delivery and
performance of this Agreement will not be a default under any order of any
court, any other tribunal or any governmental authority.
4.09 Borrower and each of its subsidiaries, if any, has duly filed all
federal, state and other governmental tax returns which it is required by law
to file and has fully paid all taxes now due to be paid and Borrower and each
of its subsidiaries, if any, now has and shall hereafter maintain reserves
adequate in amount to fully pay all such tax liabilities which may hereafter
accrue.
4.10 Borrower and each of its subsidiaries, if any, is now solvent and
able to pay its debts as they mature.
4.11 All Accounts (i) are and will be bona fide existing obligations of
the account debtor thereof created by the rendition of services to the named
account debtor in the ordinary course of business, free of liens,
encumbrances and security interests and unconditionally owed in the face
amount thereof unless otherwise indicated in the schedule relating thereto,
to Borrower by the account debtor thereof without right of rejection or
return or defense, offset or counterclaim, or claim of discount or deduction,
(ii) are and will be valid, legal, enforceable obligations of the account
debtor thereof; and (iii) do not and will not arise out of transactions with
an employee, officer, agent, director, stockholder, affiliate or subsidiary
of Borrower.
4.12 Borrower's chief executive office is at the address set forth in
the preamble to this Agreement, and Borrower has no other place of business,
except as follows: Xx. Xxxxx Xxxxx, Xxxx #00 Xxxxxxxxx, Xxx Xxxxxx 00000;
00000 X.X. Xxxxxxx 000 Xxxxx Xxxx Xxxx, Xxxxxxx 00000; 000 Xxxxxxxxxx Xxxx
XxXxxxx, Xxxxxxxx 00000. If Borrower's books and records concerning the
Accounts are not at its chief executive office, such books and records are at
____________________________________________. Except as set forth herein,
Borrower conducts business and will continue to conduct business under no
names or tradestyles other than the name set forth above Borrower's execution
of this Agreement:
ARTICLE V - Affirmative Covenants
5.01 Borrower shall:
(a) duly and punctually, pay and perform all of the Obligations;
(b) at all times keep proper books of account in which full,
true and correct entries will be made of its transactions in accordance with
generally accepted accounting principles consistently applied:
(c) at all reasonable times, make its books and records
available, in its offices, for inspection, examination and copying by
Associates and Associates' representatives and will, at all reasonable times,
permit inspection of its properties by Associates and Associates'
representatives;
(d) from time to time, furnish Associates with such information
and statements as Associates may reasonably request and with copies of all
financial statements and reports that Borrower sends or makes available to
its stockholders or to any governmental authority;
(e) furnish Associates, within twenty (20) days after the close
of each monthly period of its fiscal year, a consolidated and consolidating
balance sheet of Borrower and its affiliates, if any, and statement of profit
and loss reflecting the financial condition of Borrower at the end of such
period and the results of its operations during each such period, with a
certificate by Borrower's president or treasurer to the effect that such
balance sheet and statement of profit and loss fairly present the financial
conditions at the end of such period and the results of its operation during
such period in accordance with generally accepted accounting principles
consistently applied;
(f) furnish Associates annually, within ninety (90) days after
the close of each fiscal year, an audited consolidated and consolidating
balance sheet of Borrower and its affiliates, if any, and audited statement
of profit and loss reflecting the financial condition of Borrower and its
affiliates, if any, at the end of such fiscal year and the results of its
operations during each such fiscal year. Each such balance sheet and
statement of profit and loss is to be attested to by an independent certified
public accountant satisfactory to Associates and such certification shall be
in form and substance satisfactory to Associates;
(g) maintain its corporate existence and the corporate existence
of any and all subsidiaries in good standing and comply with all laws and
regulations of the United States or of any state or states thereof or of any
political subdivision thereof, or any governmental authority which may be
applicable to its or their business;
(h) maintain insurance at all times covering such risks and in
such amounts as Associates may require and all such insurance shall be in
such form, for such period and written by such companies as shall be
acceptable by Associates;
(i) annually, at the time of delivery to Associates of the
reports referred to in Section 5.01 (f) above, deliver to Associates
certificates signed by Borrower's president and treasurer certifying that
each such officer has reviewed the provisions of this Agreement and slating
in his opinion, if such be the fact, that Borrower has not been nor is then
in default as to any of the covenants contained in this Agreement or, in the
event of any such defaults, setting forth the details thereof;
(j) promptly notify Associates in writing of (i) any change of
its officers, directors, key employees, location of its chief executive
office or any other office or location where any books and records regarding
any Accounts are held, name or trade style, and (ii) any sale or purchase out
of the regular course of Borrower's business and any other material change in
the business or financial affairs of Borrower;
(k) pay or reimburse Associates on demand for all expenses
(including, without limitation, reasonable attorney fees and legal expenses)
incurred or paid by Associates (i) in connection with the preparation,
execution, interpretation or amendment of this Agreement and any instrument ,
agreement, or document executed and delivered pursuant thereto or in
connection therewith; (ii) for appraisers, examiners, auditors or similar
persons except for salaries of Associates' regularly employed personnel;
provided however, Borrower shall pay Associates an auditor's fee of $300.00
per day per auditor for each day Associates auditor(s) or any auditor(s)
designated by Associates is on site at Borrower's premises and reimburse
Associates for all out-of-pocket expenses incurred by such auditor(s) whom
Associates may engage with respect to rendering opinions concerning
Borrower's financial condition or the condition and/or value of the
Collateral; (iii) in connection with the enforcement by Associates of its
rights against Borrower or any other person primarily or secondarily liable
to Associates in respect to any Obligation; (iv) in connection with the
administration, supervision, protection of or realization on any Collateral
held by Associates as security for any Obligation, whether such security
interest was granted by Borrower or any other person primarily or secondarily
liable respect to any Obligation, the Collateral or this Agreement; (v) in
connection with the filing and recording of all documents required by
Associates to perfect the security interests granted to Associates in this
Agreement or in any other security interests granted to Associates,
including, without limitation, any documentary stamp tax or other taxes
incurred by Associates because of any related filing or recording; (vi) in
connection with the forwarding to Borrower or any other Person on Borrower's
behalf by Associates of proceeds of loans made by Associates to Borrower
pursuant to this Agreement and the depositing for collection by Associates of
any check or item of payment delivered to Associates on account of the
Obligations and for any claims asserted by any bank at which a blocked
account or lock box is established for the deposit of proceeds of Collateral
in connection with such blocked account or lock box or any returned or
uncollected checks received by such bank as proceeds of the Collateral; and
(vii) in establishing, maintaining and using any blocked account or lock box
for the deposit of checks and other items of payment from Borrower's
customers and account debtors under the Accounts, and
(1) use the proceeds of all loans made by Associates to
Borrower under this Agreement for business purposes.
5.02 Borrower will and will cause each of its subsidiaries, if any, to
pay all real and personal property taxes, assessments and charges and all
franchise, income, unemployment, FICA, withholding, sales and other taxes
assessed against it or payable by it at such times and in such manner to
prevent any penalty from accruing or any lien or charge from attaching to its
properties. The provisions of this section, however, shall not preclude
Borrower or its subsidiaries from contesting in good faith any such tax by
appropriate proceedings, provided an adequate book reserve, determined in
accordance with generally accepted accounting practices, is set aside; nor
shall Borrower be in default under this section by reason of the existence of
a lien for taxes not then due.
5.03 Borrower will put and maintain, and will cause each of its
subsidiaries, if any, to put and maintain, its properties in good repair,
working order and condition and from time to time make all needful and proper
repairs, renewals and replacements.
5.04 Borrower and each of its subsidiaries, if any, will comply with
all laws and all acts, rules, regulations and orders of any legislative,
administrative or judicial body or official, applicable to any Collateral or
to the operation of the business or Borrower or its subsidiaries.
ARTICLE VI - Negative Covenants
6.01 Borrower will not, without the prior written consent of
Associates, (a) guaranty or otherwise become liable in any way with respect
to the obligations of any Person, except for endorsement of items of payment
for the purpose of collection thereof; (b) pay dividends, either in cash or
in kind on any class of its stock nor make any distribution on account of its
stock, nor redeem, purchase or otherwise acquire directly or indirectly any
of its stock in excess of $100,000 per Annual Period, (c) make any loans to
any individual, firm or corporation in excess of $50,000 per Annual Period,
including, without limitation, its officers and employees; provided, that
Borrower may make loans to its employees, including its officers, with
respect to expenses incurred by such employees, which expenses are
reimbursable by Borrower; (d) invest in or purchase any stock or securities
of any person; (e) merge or consolidate or be merged or consolidated with or
into any other corporation; (f) sell or dispose of any of its assets except
for sales of inventory in the ordinary and usual course of its business;
provided, that so long as Borrower has not granted Associates a security
interest in Borrower's equipment, Borrower may dispose of equipment which is
no longer required for the conduct of Borrower's business so long as Borrower
receives therefor a sum substantially equal to such equipment's fair value;
(g) grant or suffer to exist in the favor of any party other than Associates
any mortgage, pledge, title retention agreement, security interest, lien,
charge or encumbrance with respect to the Collateral or subject the
Collateral to the payment of any indebtedness, or transfer in any manner any
of such assets with the intent or purpose, directly or indirectly, of
subjecting the Collateral to the payment of indebtedness; and (h) engage in
any business other than the business in which it is currently engaged or a
business reasonably allied thereto.
6.02 Borrower will not, except on thirty (30) days prior written notice
to Associates, change either its principal place of business or its chief
executive office or establish any additional places of business.
ARTICLE VII - Operating Procedures
7.01 From time to time at intervals designated by Associates, Borrower
shall provide Associates with schedules describing all Accounts created or
acquired by Borrower and shall execute and deliver written assignments of
such Accounts to Associates; provided however, that Borrower's failure to
execute and deliver such schedules and/or Borrower assignments shall not
affect or limit Associates' security interest or other rights in and to the
Accounts. If requested by Associates, Borrower shall furnish copies of
customers' invoices or an equivalent writing that is acceptable to
Associates, and Borrower warrants the genuineness
thereof. On demand of Associates, Borrower shall furnish to Associates the
original shipping or delivery receipts of all services rendered.
7.02 Associates or its designee may at any time and at its sole
discretion (a) notify Borrower's customers or account debtors that Accounts
have been assigned to Associates or of Associates' security interest therein:
(b) collect the Accounts directly and charge the collection costs and
expenses to the Receivable Loan Balance but, unless and until Associates so
notifies or gives Borrower other instructions, Borrower shall collect all
Accounts for Associates; provided however, Borrower shall direct its
customers and account debtors to send all payments thereon to such lock box
or blocked account as Associates may establish and designate in writing to
Borrower; (c) verify the validity and amount or any other matter relating to
any Account by mail, telephone, telecopy, telegraph or otherwise; (d) in the
name of Associates, Borrower or otherwise, enforce payment and collect by
legal proceedings or otherwise the Accounts and take control in any manner of
any cash or non-cash items of payments or proceeds of Accounts; and (e)
require Borrower to give notice of Associates' security interest in the
Accounts or any other obligation owing to Borrower to the account debtor or
other obligor with notice requiring such account debtor or other obligor to
pay the Account or other obligation directly to Associates.
7.03 All checks and other instruments received by Associates as
proceeds of Accounts will be credited (conditional upon final collection)
upon receipt to the Receivable Loan Balance; provided, however, that for
purposes of calculation of interest, such conditional credit will be made
after allowing two (2) Business Days for collection.
7.04 Borrower appoints any person Associates may from time to time
designate as Borrower's attorney with power to (a) endorse Borrower's name on
any checks, notes, acceptances, money orders, drafts or other forms of
payment or security that may come into Associates' possession; (b) sign
Borrower's name on any invoice or xxxx of lading relating to any Account, on
drafts against customers, on schedules and assignments of Accounts, on
notices of assignment, financing statements and other public records, on
verifications of Accounts and on notices to customers; (c) sign Borrower's
name to the proof of claim against any account debtor on behalf of Borrower;
(d) notify the post office authorities to change the address for delivery of
Borrower's mail to an address designated by Associates; (e) receive, open and
dispose of all mail addressed to Borrower: and (f) send requests for
verification of Accounts to customers or account debtors and to do all things
necessary to carry out this Agreement. Borrower ratifies and approves all
acts of the attorney. Neither Associates nor the attorney will be liable for
any acts or omissions nor for any error of judgment or mistake of fact or
law. This power, being coupled with an interest, is irrevocable so long as
any Accounts assigned to Associates or in which Associates has a security
interest remain unpaid or until the Obligations have been fully satisfied.
Associates may file one or more financing statements disclosing Associates'
security interest without Borrower's signature appearing thereon. If
permitted by law, Borrower agrees that a carbon, photographic or other
reproduction of this Agreement or of a financing statement may be filed as a
financing statement.
7.05 Until Borrower's authority to do so is terminated by written
notice from Associates, which notice Associates may give at any time when
Borrower's selling or collection results are not reasonably satisfactory to
Associates, or at any time after the occurrence of any Event of Default
specified in Section 8.01 herein, Borrower may grant such allowances or other
adjustments to account debtors as Borrower may reasonably deem to accord with
sound business practice; provided, however, no extension of time for payment
shall be granted without Associates' prior written consent. Borrower shall
give Associates immediate written notice of the grant of any such allowance
or other adjustment.
7.06 Associates may at all times settle Accounts or other obligations
owing to Borrower or adjust disputes and claims directly with customers or
account debtors or other obligors for such amounts and upon terms which
Associates considers advisable, and in all cases Associates will credit the
Receivable Loan Balance with only the net amounts received by Associates in
payment of Accounts.
7.07 Any and all sums at any time credited by or due from Associates to
Borrower shall at all times constitute additional security of all Obligations
of Borrower to Associates and may be setoff against any Obligation at any
time whether or not other security held by Associates is deemed to be
adequate whether or not such Obligations are then due. Any and all
instruments, documents, policies and certificates of insurance, securities,
goods, accounts receivable, choses in action, chattel paper, cash, property
and the proceeds thereof owned by Borrower or in which Borrower has an
interest, which now or hereafter are at anytime in possession or control of
Associates or in transit by mail or carrier to or from Associates or in the
possession of any third party acting in Associates' behalf, without regard to
whether Associates received the same in pledge, for safe keeping, as agent
for collection or transmission or otherwise or whether Associates has
conditionally released the same, shall constitute additional security for
such Obligations, and may be applied at any time to such Obligations whether
due or not. Associates shall have the unrestricted right from time to time to
apply (or to change any application already made of) the proceeds of any of
the Collateral to any of the Obligations, as Associates in its sole
discretion may determine. Unless otherwise agreed to in writing by
Associates, no credits or cash in which Borrower has an interest which are in
the possession or control of Associates, or any sums otherwise due from
Associates to Borrower, shall bear interest or otherwise accrue profits.
7.08 In the event that Borrower at any time or times hereafter shall
become liable to, or any lien against Borrower shall arise in favor of, any
taxing authority, whether or not the amount of such liability shall have been
assessed against Borrower and whether or not notice of such lien shall have
been filed or recorded as may be required by law, or if Borrower shall fail
to discharge any lien, claim or encumbrance, or fail to obtain or maintain
any of the policies of insurance required hereunder, or to pay any premium,
in whole or in part relating thereto, then Associates shall have the right,
but not the obligation, to pay the amount of such liability (including
interest and/or penalties thereon) and also to pay any tax or liability by
virtue of which such lien shall have arisen, or obtain and maintain such
policies of insurance and pay such premiums and any amount or amounts paid
for the discharge of any such liability or lien shall be charged to the
Receivable Loan Balance.
7.9 Borrower will furnish Associates sworn statements of the value of
the Collateral in such form and as often as Associates requires.
7.10 Borrower will deliver to Associates, duly endorsed or assigned, all
instruments, chattel paper, guaranties or security agreements immediately
upon receipt by Borrower as evidence of, in payment of or as security for any
of the Collateral.
7.11 Borrower shall furnish Associates with an aging of accounts and an
aging of Borrower's accounts payable in such form and as often as Associates
may require.
ARTICLE VIII - Remedies
8.01 Any one or more of the following events shall constitute an event
of default ("Event of Default") under this Agreement: (a) If Borrower fails
to make payment of any of the Obligations when required of Borrower, or fails
to make any remittance required by this Agreement or commits any breach of
this Agreement, or any present or future supplement hereto, or any other
agreement between Borrower and Associates or any affiliate of Associates; (b)
any default by Borrower or Borrower's subsidiaries exists under any agreement
between Borrower or any of Borrower's subsidiaries, affiliates or parents and
Associates or any affiliate of Associates, whether such agreements are now
existing or are hereafter entered into; (c) any representative covenant or
warranty made by Borrower or in connection with this Agreement is breached;
(d) any statement or data furnished by or for Borrower relating to the
Collateral or to the operation or financial condition or business affairs of
Borrower proves to be false in any material respect; (e) Borrower becomes
insolvent or is unable to meet debts as they mature, suspends operations as
presently conducted, or discontinues doing business as an ongoing concern;
(f) if any of the Collateral or any of Borrower's other assets is attached,
seized, subject to a writ or distress warrant or levied upon or if a petition
under any section or chapter of the Bankruptcy Code or any similar law or
regulation shall be filed
by or against Borrower or Borrower makes an assignment for the benefit of its
creditors or if any case or proceeding is filed by Borrower for its
dissolution or liquidation; (g) if Borrower is enjoined, restrained, or in
any way prevented by court order from (or voluntarily ceases) conducting all
or any material part of its business affairs or if a petition under any
section or chapter of the Bankruptcy Code or any similar law or regulation is
filed against Borrower or if any case or proceeding is filed against Borrower
for its dissolution or liquidation; (h) if a notice of lien, levy or
assessment is filed of record with respect to all or any of Borrower's assets
by the United States or any departments agency, or instrumentality thereof or
by any state. county, municipal or other governmental agency, including,
without limitation, the Pension Benefit Guaranty Corporation, or if any taxes
or debts owing at any time or times hereafter to any one of them becomes a
lien or encumbrance upon the Collateral or any other of Borrower's assets
unless Borrower, in good faith, shall be contesting the same in an
appropriate proceeding and Borrower has given Associates such additional
collateral and assurances as Associates deems necessary under the
circumstances; (i) if a custodian, trustee, receiver or assignee for the
benefit of creditors is appointed to take possession of any of the Collateral
or any of Borrower's other assets; (j) if there shall be a material change in
the stockholders or management of Borrower; or (k) if for any reason the
guaranty of any Person primarily or secondarily liable with respect to any of
the Obligations shall terminate without the consent of Associates.
8.02 Upon the occurrence of any Event of Default and at any time
thereafter so long as the default continues, Associates may, at its option,
with or without notice to Borrower, (a) declare this Agreement to be in
default; (b) declare all Obligations of Borrower to be immediately due and
payable; (c) cease advancing money or extending credit to or for the benefit
of Borrower under this Agreement or any other agreement; (d) cancel any
insurance and credit any refund to the Obligations; and/or (e) exercise all
of the rights and remedies of a secured party under the Code and any other
applicable laws, including, without Imitation, the right to require Borrower
to assemble the Collateral and deliver it to Associates at a place to be
designated by Associates which is reasonably convenient to both parties, and
to lawfully enter any premises where the Collateral is located without
judicial process and take possession thereof. Associates may sell and deliver
any or all Accounts and any or all other Collateral at public or private sale
for each, upon credit or otherwise, at such prices and upon such terms as
Associates deems advisable. Any requirement of reasonable notice shall be met
if such notice is mailed postage prepaid to Borrower at Borrower's address as
set forth herein at least five(5) days before the time of sale or other
disposition. The proceeds of sale shall be applied first to all costs and
expenses of sale, including attorneys' fees, and second to the payment (in
whatever order Associates elects) of all Obligations. Associates shall
dispose of any excess as required by law and Borrower shall remain liable to
Associates for any deficiency. Failure by Associates to exercise any right,
remedy or option under this Agreement or any present or future supplement
hereto or under any other agreement between Associates and Borrower, or delay
by Associates in exercising the same, will not operate as a waiver thereof.
8.03 Associates' rights and remedies under this Agreement shall be
cumulative and not alternative and shall not limit any other right or remedy
which Associates may have.
8.04 Associates shall not be required to have recourse to any
Collateral before enforcing its rights or remedies against Borrower or any
other Person primarily or secondarily liable with respect to any of the
Obligations.
8.05 Associates shall not, under any circumstances or in any event
whatsoever, have any liability for any error or omission or delay of any kind
occurring in the liquidation of any Collateral, including the settlement,
collection or payment of any Account, or for any damage resulting therefrom.
8.06 Borrower waives and releases all rights of redemption from any
sale of the Collateral and the benefit of all evaluation, appraisal and
exemption laws.
8.07 BORROWER AND ASSOCIATES EACH WAIVE THEIR RESPECTIVE RIGHT TO TRIAL
BY JURY IN ANY SUIT OR PROCEEDING ARISING UNDER OR RELATING TO THIS
AGREEMENT.
ARTICLE IX-Termination
9.01 This Agreement shall have an initial term of three (3) years from
the effective date hereof (the "Original Term") and shall be automatically
renewed for successive periods of one (1) year ("Renewal .Term"), unless
sooner terminated as hereinafter provided. Borrower may terminate this
Agreement as of the expiration of the Original Term or any Renewal Term by
giving Associates ninety (90) days prior written notice of its intention to
so terminate. Associates shall have the right to terminate this Agreement at
any time by giving Borrower at least ninety (90) days prior written notice of
its intention to terminate or at any time without notice because of the
occurrence of any Event of Default.
9.02 Upon the termination date, all Obligations shall immediately be
due and payable.
9.03 No termination hereunder shall in any way affect or impair any
right of Associates arising prior thereto or by reason thereof nor shall any
such termination relieve Borrower or any other party primarily or secondarily
liable as to the Obligations until all of the Obligations are fully paid.
9.04 Notwithstanding the provisions of Section 9.01, Borrower may
terminate this Agreement at any time upon ninety (90) days prior written
notice and by payment to Associates on the effective date of such termination
of an amount equal to the sum of (a) all Obligations, plus (b) (i) in the
event of such termination during the first two years of the Original Term,
two percent (2%) of the Maximum Advance, or (b)(ii) in the event of such
termination during the third year of the Original Term and any Renewal Term,
one percent (1%) of the Maximum Advance.
ARTICLE X - Miscellaneous
10.01 NOTWITHSTANDING THE FACT THAT THE CREDIT OF AN ACCOUNT DEBTOR
MUST BE SATISFACTORY TO ASSOCIATES, BORROWER RECOGNIZES AND AGREES THAT
BORROWER WILL MAKE ALL CREDIT DECISIONS WITH RESPECT TO BORROWER'S EXTENSION
OF CREDIT TO AN ACCOUNT DEBTOR; BORROWER WILL NOT RELY ON ASSOCIATES IN ANY
WAY FOR SUCH CREDIT DETERMINATION: NO REPRESENTATION OR AGREEMENT HAS BEEN
MADE BY ASSOCIATES THAT ASSOCIATES WILL PROVIDE CREDIT DECISIONS TO BORROWER
AND ALL REFERENCES TO CREDIT DECISIONS BY ASSOCIATES WITH RESPECT TO AN
ACCOUNT OR AN ACCOUNT DEBTOR REFER SOLELY TO ASSOCIATES' OWN DETERMINATION AS
TO THE ELIGIBILITY OF SUCH ACCOUNT OR SUCH ACCOUNT DEBTOR FOR THE PURPOSE OF
TREATING AN ACCOUNT AS AN ELIGIBLE ACCOUNT.
10.02 All loans made by Associates to Borrower under this Agreement and
under any other agreement between Associates and Borrower shall constitute
one loan secured by all of the Collateral and all other security granted to
Associates.
10.03 Borrower irrevocably (a) waives the right to direct the
application of any and all payments at any time or times hereafter which may
be received by Associates from or for the benefit of Borrower, and (b) agrees
that Associates shall have the continuing exclusive right to apply and
reapply any and all such payments received at any time or times hereafter in
such manner as Associates may deem advisable, notwithstanding any entry by
Associates upon any of its books and records.
10.04 To the extent that Borrower makes a payment(s) to Associates or
Associates enforces its security interest and lien or exercises its right of
setoff and such payment(s) or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver
or any other party under any bankruptcy law, state or federal law, common law
or equitable cause, then to the extent of such recovery, the liability or
part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment
had not been made or such enforcement or setoff had not occurred and shall be
Obligations secured by the Collateral.
10.05 This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs and representatives or
successors and assigns. Borrower may not, however, without the prior written
consent of Associates, assign this Agreement to any other person.
10.06 In the event that any provision hereof shall be deemed to be
invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Agreement shall be construed
as not containing such provision and the invalidity of such provision shall
not affect the validity of any other provision hereof and any and all other
provisions hereof which are otherwise lawful and valid shall remain in full
force and effect The captions herein contained are for convenience only, do
not form a part of this Agreement and shall not be utilized in the
construction thereof.
10.07 Borrower will, from time to time, execute and deliver all
instruments, documents or other writings, and take or cause to be taken such
other and further action as Associates may request in order to effect and
confirm or vest more securely in Associates all rights contemplated in this
Agreement.
10.08 This Agreement may be amended and Borrower may take any action
herein prohibited or omit to perform any act herein required to be performed
by it, if Borrower shall obtain Associates' prior written consent to each
such amendment, action or omission to act. No waiver on the part of
Associates on any one occasion shall be deemed a waiver on' any subsequent
occasion. No waiver by Associates will be effective unless it is in writing
and then only to the extent specifically stated.
10.09 If any of the Collateral shall at any time consist of instruments
or documents, Associates shall have no obligation to preserve rights against
prior parties.
10.10 Associates may, at any time(s) pay, acquire, satisfy, or
discharge any security interest, lien, encumbrance or claim asserted by any
Person against the Collateral. Associates shall have no obligation to
determine the validity thereof. All sums paid by Associates under the
provisions of this section and any existing or other charges relating thereto
shall be repaid by Borrower on demand and shall be a charge to the Receivable
Loan Balance.
10.11 Except as otherwise provided for in this Agreement, Borrower
expressly waives presentment, demand and protest and notice of presentment,
protest, default, non-payment, maturity, release, compromise, settlement,
extension or renewal of any or all commercial paper, accounts, contract
rights, documents, instruments, chattel paper and guaranties at any time held
by Associates on which Borrower may in any way be liable and hereby ratifies
and confirms whatever Associates may do in this regard.
10.12 This Agreement shall be governed, construed and enforced in
accordance with the laws of the Applicable Jurisdiction and applicable
Federal laws. This Agreement shall take effect as an instrument under seal.
10.13 Any notice hereunder to Borrower or to Associates shall be in
writing and, if mailed, shall be deemed to be given four (4) Business Days
after deposit in the mail, postage prepaid, and addressed to Borrower or
Associates at its address set forth in the preamble to this Agreement or at
such address as the Borrower or Associates may, by written notice, designate
its address for purposes of notice hereunder.
10.14 This Agreement has been signed and delivered to Associates on the
day and year first above written. This Agreement shall become effective only
upon the written acceptance hereof by Associates under the signature of its
duly authorized officer. When so accepted, this Agreement shall supersede all
prior verbal or written
agreements, commitments or understandings relating to Associates' loans to
Borrower measured and secured by this Agreement.
10.15 Borrower authorizes Associates to disclose such financial, credit
and other information regarding Borrower and Borrower's business as
Associates may deem appropriate to any of Associates' assignees, participants
or other persons making credit inquiries about Borrower.
19
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers duly authorized thereto.
GASEL TRANSPORTATION LINES, INC.
Borrower
By: /s/ X. X. Post
Title: President
Date: May 27, 1998
Accepted at Irving, Texas_____________ this 27th day of May, 1998
ASSOCIATES TRANSCAPITAL SERVICES, a division of ASSOCIATES COMMERCIAL
CORPORATION
By: /s/______________
Title: SENIOR VICE PRESIDENT
Date: May 27, 1998
FIRST ADDENDUM TO TRANSPORTATION ACCOUNTS FINANCING AND SECURITY AGREEMENT
This Addendum is attached to and shall modify that certain Transportation
Accounts Financing and Security Agreement dated May 27,1998, as amended ( the
"Agreement"), by and between Associates Transcapital Services, a division of
Associates Commercial Corporation ("Associates"), and Gasel Transportation
Lines, Inc. ("Borrower").
For good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, Associates and Borrower agree to amend the Agreement as
follows:
1. The Maximum Advance, as defined in Article II Section 2.01 of the
Agreement, shall be changed from the current amount of $1,000,000.00 to the
new amount of $2,000,000.00.
2. The Current Renewal Term which is due to expire on May 27,2001 shall
be extended until May 27, 2002. Subsequent Renewal Terms shall be for one
year periods of time as provided in Section 9.01 of the Agreement.
Notwithstanding anything to the contrary contained in the Agreement, if
Borrower elects to terminate the Agreement at any time prior to May 27, 2002,
then instead of paying the amount required in Section 9.04(b)(ii), Borrower
shall pay Associates an amount equal to two percent (2%) of the Maximum
Advance.
3. Section 2.09 of the Agreement shall be changed from the current amount
of $5,000.00 to $10,000.00.
4. This Addendum is effective as of November 19,1999, (the "Effective
Date") and shall not have any retroactive effect on either party's rights and
obligations under the Agreement.
5. Except as specifically modified hereby, the terms and conditions of
the Agreement shall remain in full force and effect.
ASSOCIATES TRANSCAPITAL SERVICES a division of Associates Commercial Corporation
By: /s/______________
Title: Vice President
Date: November 19,1999
Gasel Transportation Lines, Inc.
By: /s/X. X. Post
Title: President
Date: 11-22-99
GUARANTOR CONSENT
The undersigned Guarantor consents to the within Addendum to Transportation
Accounts Financing and Security Agreement and agrees that the execution
thereof by Associates and Borrower shall not impair or otherwise affect
Guarantor's obligations and duties to Associates with regard to the
Agreement, as amended.
GUARANTOR: Xxxxxxx X. Post
Signature: /s/ X X Post
(Individually)
Date: 11-22-99
