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EXHIBIT 10.5
AMENDED AND RESTATED
GENERAL SECURITY AGREEMENT
THIS AMENDED AND RESTATED GENERAL SECURITY AGREEMENT ("Agreement"),
dated as of November 19, 1997, is made by the undersigned PROFESSIONAL
TRANSPORTATION GROUP LTD., INC., a Georgia corporation, TRUCK-NET, INC., a
Georgia corporation, TIMELY TRANSPORTATION, INC., a Georgia corporation, PTG,
INC., a Georgia corporation, and TIMELY NORTH, INC., a Georgia corporation
(hereinafter collectively referred to as "Debtor"), with SOUTHTRUST BANK, N.A.,
a national banking association ("Secured Party").
W I T N E S S E T H:
FOR VALUE RECEIVED, and in consideration of loans, extensions of credit
or other financial accommodations previously, now or hereafter made by Secured
Party to Debtor or which are otherwise to the direct interest and benefit of
Debtor, Debtor hereby agrees with Secured Party as follows:
1. SECURITY INTEREST. As security for the full and prompt payment
and performance of the Secured Obligations (as hereinafter defined), Debtor
hereby grants, bargains, sells, conveys, assigns and sets over to Secured Party,
and grants to Secured Party a security interest in, the following property and
rights of Debtor:
A. (Inventory and Documents) all inventory of Debtor, whether now owned
or hereafter acquired by Debtor and wherever
located, including, without limitation, all
goods, merchandise, raw materials, work in
process, finished goods, and other tangible
personal property held for sale or lease or
furnished under contracts of service or used
or consumed in Debtor's business and all
returned, reclaimed and repossessed goods
(collectively, the "Inventory"), together
with all documents now or hereafter
representing any such Inventory
(collectively, the "Documents"), and all
proceeds and products of the foregoing.
B. (Accounts) all accounts, contract rights, instruments
and chattel paper whether arising from the
sale of Inventory or the rendering of
services by Debtor or otherwise and whether
now owned or hereafter acquired by Debtor
and whether now existing or hereafter
arising and all returned, reclaimed and
repossessed goods (collectively, the
"Accounts"), together with all books and
records relating to such Accounts, and all
proceeds of the foregoing.
C. (Intangibles) all general intangibles of Debtor, whether
now owned or hereafter acquired by Debtor,
including, without limitation, any goodwill,
choses in action, causes of action, literary
rights, rights to performance, confidential
information, purchase orders, trade secrets,
trademarks, service marks, patents,
copyrights, inventions and other proprietary
information (collectively, the
"Intangibles"), together with all books and
records relating to such Intangibles, and
all proceeds of the foregoing.
D. (Equipment) all equipment of Debtor, whether now owned
or hereafter acquired by Debtor and wherever
located, including, without limitation, all
machinery, computer equipment and
peripherals, furniture, furnishings, and
motor vehicles, and all replacements thereof
and substitutes therefor, and all
accessories, additions, attachments and
other goods now or hereafter installed in or
affixed thereto or used in connection
therewith (collectively, the "Equipment"),
together with all warranties and service
contracts relating to such Equipment, and
all proceeds of the foregoing. The term
"Equipment," as used in this Agreement, also
includes fixtures, including leasehold
improvements and machinery and appliances
which are attached to real property in such
a manner as to become fixtures
(collectively, the "Fixtures").
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(All of the property and rights described in paragraphs A, B, C and D above, as
applicable, are sometimes hereinafter collectively referred to as the
"Collateral.")
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR. Debtor
covenants, represents and warrants to Secured Party that:
(a) Each entity comprising Debtor is duly organized, existing and in
good standing under the laws of the state of its incorporation and is duly
qualified and in good standing in every other state in which the nature of its
business or the ownership of its properties makes qualification necessary
(except where the failure to be so qualified would not have a material adverse
effect on Debtor taken as a whole), and the execution, delivery and performance
of this Agreement are within Debtor's corporate powers, have been duly
authorized, are not in contravention of any law, judgment, order, writ or decree
of any court or governmental authority or the terms of Debtor's certificate of
incorporation, by-laws or other incorporation papers, or of any agreement or
undertaking to which Debtor is a party or by which Debtor or its property is
bound.
(b) Debtor agrees to make all records concerning or constituting the
Collateral available to Secured Party, its agents, attorneys and accountants,
upon request at any reasonable time and without hindrance or delay, and to allow
Secured Party to inspect, audit, check or make copies or extracts of such
records.
(c) Except as otherwise noted in a schedule attached to this Agreement,
Debtor is the owner of the Collateral, free and clear of all security interests,
liens and encumbrances other than the security interest granted to Secured Party
herein, and has the full right and power to transfer the Collateral to Secured
Party and to grant to Secured Party a security interest therein. Except as
expressly authorized hereunder, Debtor will not sell, transfer, assign or convey
any of the Collateral or any interest therein, nor create any other security
interest therein, nor permit any financing statement other than that of Secured
Party's to be filed in any public office with respect thereto (except as
otherwise expressly agreed in writing by Secured Party), nor permit either
Debtor's or Secured Party's rights therein to be reached by attachment, levy,
garnishment or other judicial process.
(d) Debtor will pay promptly when due all taxes, charges and
assessments upon the Collateral or any part thereof, the use or operation of the
Collateral, the proceeds thereof, this Agreement and any note evidencing the
Secured Obligations. At its option, Secured Party may discharge any taxes,
liens, security interests or other encumbrances or any item levied or placed on
the Collateral or any part thereof, but Secured Party shall not be under any
duty to exercise any such authority. Debtor agrees to reimburse Secured Party,
upon demand, for any payment made by Secured Party pursuant to the foregoing
authorization.
(e) Debtor shall bear the risk of loss of, damage to, or destruction of
the Collateral, whether in possession of Debtor, Secured Party or a third party.
Secured Party shall be deemed to have exercised reasonable care in the custody
and preservation of the Collateral in its possession if Secured Party takes such
action for that purpose as Debtor shall reasonably request in writing, but no
omission on the part of Secured Party to take any action, whether or not
requested by Debtor, shall of itself be deemed a failure to exercise reasonable
care.
(f) Debtor shall do, make, execute and deliver to Secured Party all
such additional acts, things, assignments, assurances, and instruments as
Secured Party may require to vest completely in Secured Party its rights
hereunder and in or to the Collateral. At the request of Secured Party, Debtor
will execute financing statements as provided for under the Uniform Commercial
Code in form satisfactory to Secured Party and will pay the cost of filing the
same in all public offices where filing is deemed by Secured Party to be
necessary or desirable. Debtor agrees that a carbon or photostatic copy of this
Agreement may be filed as a financing statement in any public office. If
certificates of title are now or hereafter issued or outstanding with respect to
any of the Collateral, Debtor will cause the interest of Secured Party to be
properly noted thereon at Debtor's expense. Debtor will deliver all instruments,
documents and chattel paper which constitute a part of the Collateral to Secured
Party upon request, duly endorsed by Debtor to the order of Secured Party or in
blank, in each case, in form satisfactory to Secured Party. Secured Party may
elect not to perfect its security interest in all or any part of the Collateral
without impairing its rights against Debtor or any other party.
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(g) Debtor hereby irrevocably makes, constitutes and appoints Secured
Party and any of its officers or designees as Debtor's true and lawful
attorney-in-fact with full power and authority to do any and all acts necessary
or proper to carry out the intent of this Agreement, including, without
limitation, the right, power and authority (i) to receive and give receipt for
any amount or amounts due or to become due to Debtor with respect to the
Collateral and to endorse and negotiate in the name of Debtor any check or other
item issued in payment or on account thereof, and in the name of Secured Party
or of Debtor to enforce by suit, compromise, settle, discharge, extend the time
of payment, file claims or otherwise participate in bankruptcy proceedings, and
deal in and with Collateral and any proceeds thereof; (ii) to open mail
addressed to Debtor, remove any Collateral or proceeds of Collateral therefrom,
and deliver the remainder of such mail to Debtor; (iii) to do all acts and
things deemed by Secured Party to be appropriate to protect, preserve and
realize upon the Collateral; and (iv) to obtain, adjust, settle, or cancel any
insurance carried with respect to the Collateral and to endorse in Debtor's name
and give receipts for checks and drafts issued in payment of losses and as
return premiums with respect to any such insurance, but Secured Party shall not
be under any duty to exercise any such authority or power or in any way be
responsible for collecting or realizing upon the Collateral. Debtor hereby
ratifies and confirms all that Secured Party, its officers or designees, shall
do as such attorney-in-fact by virtue of the foregoing powers, which powers are
coupled with an interest and are irrevocable until this Agreement has been
terminated as hereinafter provided. Secured Party shall not be liable for any
act or omission which Secured Party, its officers or designees shall take or
fail to take pursuant to the foregoing powers.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS RELATING TO INVENTORY.
Debtor further agrees with Secured Party as follows:
(a) Debtor will allow Secured Party and any of its officers, agents,
attorneys or accountants to examine or inspect the Inventory wherever located at
all reasonable times.
(b) Debtor will keep the Inventory in good condition and will not waste
or destroy any of the same. If Debtor should fail to take appropriate steps, as
determined by Secured Party, to maintain the Inventory in good condition,
Secured Party, at its option, may take such steps and expend such funds as it
deems necessary for the preservation of the Inventory. Debtor agrees to
reimburse Secured Party on demand for any sums spent by Secured Party with
respect to the maintenance of the Inventory.
(c) Until the occurrence of an event of default hereunder, Debtor may
use the Inventory in any lawful manner consistent with Debtor's customary
business, provided that such use is not inconsistent with this Agreement or with
the terms or conditions of any policy of insurance thereon, and Debtor may sell
the Inventory in the ordinary course of business. A sale in the ordinary course
of business does not include a return to a vendor for credit or other transfer
in partial or total satisfaction of a debt. Until the occurrence of event of
default, Debtor may also use and consume any raw materials or supplies, the use
and consumption of which is necessary in order to carry on Debtor's customary
business.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS RELATING TO ACCOUNTS.
Debtor hereby further agrees with Secured Party as follows:
(a) Each Account owing to Debtor, and all names of all account debtors,
amounts owing, due dates, and other facts appearing on Debtor's records relating
thereto, are true, correct and genuine and are what they purport to be, and each
such Account arises out of a bona fide sale of goods or other property sold and
delivered to, or out of services rendered by Debtor to, the account debtors so
indicated, and the amount of each such debt is unconditionally owed to Debtor by
each such account debtor, except for normal cash discounts, and is not subject
to any offset, credit, deduction, or counterclaim, and Debtor is the sole owner
thereof.
(b) The address of Debtor's chief executive office and principal place
of business is the address shown above Debtor's signature at the end of this
Agreement. Debtor agrees not to change the address of Debtor's chief executive
office without giving at least fifteen (15) days prior written notice to Secured
Party.
(c) Secured Party shall have the right at any time upon ten (10) days
prior notice to Debtor, whether before or after the occurrence of a default
hereunder by Debtor, to notify any or all account debtors or obligors on the
Accounts to make payment directly to Secured Party, or to make payment to an
address (a
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"lockbox") under the exclusive control of Secured Party. Upon request of Secured
Party, Debtor agrees immediately to notify any or all account debtors and
obligors to make payment directly to Secured Party or to such lockbox and to
place Secured Party's or such lockbox's address on Debtor's invoices and
statements as the address to which payment should be made. To the extent Secured
Party does not so elect to notify, or does not request Debtor to notify, the
account debtor or obligors, Debtor shall continue to collect such Accounts.
Debtor agrees not to commingle any proceeds of any of the Accounts with any of
Debtor's own funds, goods or property, and at all times to hold such proceeds in
trust for Secured Party until delivery thereof is made to Secured Party. Debtor
agrees to deliver all proceeds of the Accounts in precisely the form received by
Debtor, with the endorsement of Debtor if requested by Secured Party. Secured
Party may apply such proceeds to any of the Secured Obligations, whether or not
such Secured Obligations have matured by their terms, or Secured Party may, at
its option, release such proceeds to Debtor for use in Debtor's business.
Secured Party need not apply nor give credit for any item included in such
proceeds until Secured Party has received final payment therefor at its offices
in cash or cash equivalents acceptable to Secured Party.
(d) Weekly, monthly, or at such other intervals as Secured Party shall
designate, Debtor agrees to deliver to Secured Party lists and agings of all
Accounts in such form, and in such detail, as Secured Party shall require,
together with copies of invoices, delivery receipts, bills of lading and such
other documents in support of or relating to Accounts as Secured Party shall
require.
(e) If any of the Accounts arise out of contracts with the United
States or any agency thereof, Debtor agrees to notify Secured Party thereof and
to execute such documents as shall be necessary to permit Secured Party to
perfect its right to receive payment under the Federal Assignment of Claims Act.
(f) Debtor will promptly notify Secured Party in writing in the event
the account debtor on any Account refuses to accept or returns any goods which
are the subject of the Account, and of the bankruptcy, insolvency, or cessation
of business of or by any such account debtor, and of any claim asserted against
Debtor for credit allowances, adjustments, offsets or counterclaims by any such
account debtor;
(g) Upon the reasonable request of Secured Party, Debtor will purchase
insurance covering the loss of, and cost of reconstruction of, Debtor's records
of its Accounts and all books and records relating thereto, such insurance to be
issued by an insurer acceptable to Secured Party and to contain such coverage
provisions as Secured Party shall request.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS RELATING TO INVENTORY AND
EQUIPMENT. Debtor agrees with Secured Party as follows:
(a) Debtor's Inventory and Equipment, as applicable, are kept or stored
only at the address shown above Debtor's signature at the end of this Agreement
and at the following addresses:
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(Failure to list any address where Inventory or Equipment are kept shall not
limit or affect Secured Party's security interest therein.)
Debtor agrees not to keep or store any Inventory or Equipment, as applicable, at
any address other than those set forth above without giving at least fifteen
(15) days prior written notice to Secured Party.
(b) Debtor agrees not to sell or otherwise dispose of any Equipment, as
applicable, except worn out or obsolete Equipment which is immediately replaced
with other Equipment of equivalent function and of equal or greater value (and
if a motor vehicle, upon which the security interest of Secured Party has been
properly noted on the certificate of title therefor). As used herein, "dispose"
shall not include the return by Debtor to any lessor of leased vehicles at the
end of the lease.
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(c) All Inventory, if applicable, is and will be produced in
compliance with the Federal Fair Labor Standards Act.
(d) Debtor will maintain insurance at all times with respect to all
Inventory and/or Equipment, as applicable, against risk of fire (including
so-called extended coverage), theft, water damage and such other risks as
Secured Party may require from time to time and, in the case of motor vehicles,
against risk of collision and vandalism, in such amounts, in such form, for such
perils, and written by companies as may be reasonably satisfactory to Secured
Party. Secured Party shall be named as loss payee under such policies of
insurance. Debtor may furnish such insurance through an existing policy or a
policy independently obtained and paid for by Debtor. All policies of insurance
shall provide for a minimum of ten (10) days prior written notice to Secured
Party before cancellation. At request of Secured Party, Debtor will deliver such
policies, or at Secured Party's option, certificates thereof, to Secured Party
to be held by it. Debtor hereby assigns all insurance policies at any time
covering any Inventory, Equipment, Specific Equipment or Farm Products, as
applicable, and all return or unearned premiums thereunder to Secured Party as
additional collateral for the Secured Obligations. Secured Party in its
discretion may apply any proceeds of such insurance to the payment of the
Secured Obligations, whether or not due, in such order of application as Secured
Party may elect, or may release such proceeds to Debtor for use in purchasing
other Inventory and/or Equipment, as applicable, as a replacement for any loss
thereof. In the event Debtor fails to provide any insurance as required herein,
Secured Party may, at its option, purchase such insurance or, at Secured Party's
option and after ten (10) days' prior written notice to Debtor, Secured Party
may purchase insurance covering only Secured Party's interest in the Inventory
and/or Equipment, as applicable. Debtor agrees to reimburse Secured Party on
demand for the cost of such insurance.
(e) Upon request of Secured Party at any time, Debtor will deliver to
Secured Party lists or copies of all Accounts which are proceeds of Inventory or
Equipment, as applicable, promptly after they arise. Unless Secured Party shall
have otherwise agreed with Debtor in writing, Debtor will deliver to Secured
Party, promptly upon receipt, all proceeds (except goods) of the Inventory or
Equipment, as applicable, received by Debtor, including proceeds of such
Accounts, in precisely the form received by Debtor, with the endorsement of
Debtor if requested by Secured Party. Debtor agrees not to commingle any
proceeds of such Collateral with any of Debtor's own funds, goods or property,
and at all times to hold such proceeds upon express trust for Secured Party
until delivery thereof is made to Secured Party. To evidence Secured Party's
rights hereunder, Debtor will assign or endorse proceeds to Secured Party in
such form as Secured Party may request and Secured Party shall have the full
power and authority to collect, compromise, endorse, sell or otherwise deal with
proceeds in its own name or that of Debtor. Secured Party in its discretion may
apply cash proceeds to the payment of any of the Secured Obligations, whether or
not due, in the order of application as Secured Party may elect, or may release
such cash proceeds to Debtor for use in the operation of Debtor's business.
6. WAIVERS OF DEBTOR. Debtor hereby expressly waives:
(a) notice of acceptance of this Agreement;
(b) notice of the existence or creation of any or all of the Secured
Obligations;
(c) notice of any default, nonpayment, partial payment, presentment,
demand and all other notices which Debtor may be entitled to whatsoever;
(d) any invalidity or disability in whole or in part with respect to
any Collateral, at the time of its acceptance or at any other time, as well
as with respect to the liability of any Obligor;
(e) the fact that the Collateral or any part thereof may at any time
or from time to time be incorrectly estimated or deteriorate in value for
any cause whatsoever;
(f) all diligence in collection or protection of or realization upon
the Collateral, the Secured Obligations, or any part thereof, or any
security for any of the foregoing;
(g) any duty or obligation on the part of Secured Party to ascertain
the extent or nature of the Collateral, or any part thereof, or the
liability of Obligor, as well as any duty or obligation on the part of
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Secured Party to take any steps or actions to safeguard, protect, deal
with, handle, obtain or convey information with respect to the Collateral
or any part thereof; and
(h) any right to require Secured Party to proceed against any Obligor,
if Debtor is not the same as Obligor, as set forth in Section 10-7-24 of
the Official Code of Georgia.
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DEBTOR HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS DEBTOR MAY HAVE TO NOTICE
PRIOR TO THE SEIZURE OF THE COLLATERAL. THIS WAIVER IS GIVEN BY DEBTOR TO
SECURED PARTY IN ACCORDANCE WITH SECTION 00-00-000 OF THE OFFICIAL CODE OF
GEORGIA IN ORDER TO ELIMINATE THE REQUIREMENT THAT SECURED PARTY FURNISH A BOND
SHOULD SECURED PARTY SEEK AN IMMEDIATE WRIT OF POSSESSION.
/S/XXXXXX X. XXXXX
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SIGNATURE ON BEHALF OF DEBTOR
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7. EXPENDITURES. All sums expended by Secured Party for which Debtor is
obligated to reimburse Secured Party under this Agreement shall bear interest
from the date the expenditure is made until the date paid at the rate provided
in any promissory note evidencing the Secured Obligation with respect to which
the sum was expended by Secured Party, or if no single such promissory note
exists or is identifiable, then at the rate which is two (2) percentage points
in excess of the rate of interest per annum announced by Secured Party from time
to time as its base rate of interest as of the date such expenditure was made.
8. DEFAULT. Any or all of the Secured Obligations shall, at the option of
Secured Party and notwithstanding the stated maturity date of any instrument
evidencing any such Secured Obligations, become immediately due and payable,
without notice or demand, except as specifically provided in any such
investment, upon the occurrence of any of the following events, each of which
shall constitute an event of default hereunder:
(a) The failure of any Obligor to pay or perform as and when due any
of the Secured Obligations;
(b) The failure of Debtor to pay or perform as and when due any
covenant or agreement contained in this Agreement or if any warranty or
representation made or any writing furnished to Secured Party by or on behalf of
Debtor in or in connection with this Agreement is breached or is false or
inaccurate in any material respect when made or furnished;
(c) Loss, theft, damage, or destruction of any material part of the
Collateral, or any levy, seizure, garnishment or attachment thereof or thereon;
(d) The death of (if an individual), or dissolution of (if a
partnership or corporation), insolvency of, general assignment for the benefit
of creditors by, filing of a petition under any chapter of the federal
bankruptcy code by or against, filing of an application in any court for a
receiver for, entry of any judgment against, or issuance of a levy or writ of
execution, attachment or garnishment against any of the property of, any
Obligor;
(e) The transfer by any Obligor of all or substantially all of his,
her or its assets outside the ordinary course of business, or the waste, loss or
dissipation of a substantial part of such person's assets;
(f) If any Obligor is a partnership, the withdrawal or removal of any
general partner of such partnership;
(g) If any Obligor is a corporation, the transfer, directly or
indirectly (including through any voting trust, irrevocable proxy, or the like),
of the ownership or power to vote more than fifty percent (50%) of the voting
stock of such corporation;
(h) The occurrence of any default or event authorizing acceleration as
provided under any promissory note or other evidence of debt, loan agreement,
security agreement, pledge agreement, assignment, mortgage, deed to secure debt,
deed of trust, lease agreement or other agreement or contract between any
Obligor and Secured Party;
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(i) The financial responsibility of any Obligor becomes impaired at
any time in the sole reasonable opinion of Secured Party; or
(j) The determination by Secured Party that it otherwise deems itself
to be insecure.
9. REMEDIES. Upon the occurrence of any event of default set forth in the
preceding paragraph 8 and at any time thereafter, Secured Party shall have and
be entitled to exercise, from time to time, all the rights and remedies of a
secured party under the Uniform Commercial Code, and other applicable law,
including, without limitation, the right to take possession of all or any part
of the Collateral and, with or without taking possession thereof, to sell the
Collateral at one or more public or private sales, at Secured Party's option. At
Secured Party's request, Debtor agrees to assemble the Collateral and to make it
available to Secured Party at a place to be designated by Secured Party. Debtor
waives any notice of sale or other disposition of the Collateral. To the extent
that such notice may not be waived under applicable law, Debtor agrees that
notice of sale or other disposition of the Collateral hereunder, or any part
thereof, shall be sufficient if such notice is provided to Debtor in accordance
with the notice provisions set forth in this Agreement at least five (5)
calendar days before the time of the sale or disposition. Debtor agrees to pay
Secured Party on demand all expenses incurred or paid by Secured Party in
protecting or enforcing the Secured Obligations and the rights of Secured Party
hereunder, including Secured Party's right to take possession of and sell or
dispose of the Collateral, and in repossessing, collecting and storing the
Collateral, preparing the Collateral for sale, advertising and conducting such
sale, and collecting the proceeds of such sale. The proceeds of any sale or
other disposition or collection of the Collateral shall be applied, first, to
the payment of all costs and expenses incurred by Secured Party in connection
with such sale or other realization including, without limitation, attorneys'
fees as specified above and all costs of litigation, and to the repayment of all
advances made by Secured Party hereunder for the account of Debtor and the
payment of all costs and expenses paid or incurred by Secured Party in
connection with this Agreement or in the exercise of any right or remedy
hereunder or under applicable law; second, to the payment of the Secured
Obligations in such order as Secured Party may elect; and third, to Debtor, or
any other person entitled thereto, or as a court of competent jurisdiction may
direct. Debtor will remain obligated to pay any deficiency.
10. SET-OFF RIGHTS. Secured Party shall have the right to set off the
Secured Obligations against any indebtedness or liability of Secured Party to
Debtor at any time existing. As additional security for the Secured Obligations,
Debtor hereby transfers and assigns to Secured Party, and grants to Secured
Party a security interest in, all account balances, credits, deposits, and
rights of withdrawal of Debtor with Secured Party, whether now owned or
hereafter acquired, and whether jointly or severally held, and Debtor agrees
that Secured Party shall have a lien upon and security interest in all property
of Debtor of every kind now or hereafter in the possession or control of Secured
Party for any reason.
11. NOTICES. Any and all notices, elections, demands, requests and
responses thereto permitted or required to be given under this Agreement shall
be in writing, signed by or on behalf of the party giving the same, and shall be
deemed to have been properly given and shall be effective upon being personally
delivered, or three (3) days after being deposited in the United States mail,
postage prepaid, certified with return receipt requested, to Debtor if mailed to
the address set forth above Debtor's name at the end of this Agreement and to
Secured Party at the address set forth in the beginning of this Agreement or at
such other address within the continental United States for either party as such
party may designate by notice to the other given in accordance with the
provisions of this paragraph; provided, however, that the time period in which a
response to any such notice, election, demand or request must be given shall
commence on the date of receipt thereof; and provided further that no notice of
change of address shall be effective until the date of receipt thereof. Personal
delivery to a party or to any officer, partner, agent or employee of such party
at said address shall constitute receipt. Rejection or other refusal to accept
or inability to deliver because of a changed address of which no notice has been
received shall also constitute receipt.
12. MISCELLANEOUS. (a) At such time as the Secured Obligations are paid
and satisfied in full and Secured Party has no other or further obligation,
contingent or otherwise, to make any present or future advance of funds or to
incur any present or future expense contemplated by the agreements relating to
the Secured Obligations, Secured Party will deliver to Debtor a written
termination of this Agreement upon written request therefor from Debtor. Prior
to such termination this shall be a continuing Agreement in every respect.
(b) No delay by Secured Party in enforcing its rights hereunder shall
prejudice its rights to enforce this Agreement. All rights and remedies under
this Agreement, under any other agreement and under applicable law
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shall be cumulative, and any failure of Secured Party to exercise any such right
or remedy shall not be construed as a waiver of the right to exercise the same
or any other right or remedy at any time and from time to time thereafter. No
waiver by Secured Party shall be effective unless made in writing by a duly
authorized officer or agent of Secured Party, and no waiver by Secured Party of
any right or remedy shall constitute a waiver of any other or future right or
remedy. This Agreement shall inure to the benefit of Secured Party, its
successors and assigns, and to any person to whom Secured Party may grant an
interest in any of the Secured Obligations, and shall be binding upon Debtor and
his, her, its or their respective heirs, executors, administrators, successors
and assigns. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(c) DEBTOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED IN THE STATE OF GEORGIA AND, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO
ANY ACTION INSTITUTED IN ANY SUCH COURT AND AGREES THAT SERVICE OF PROCESS IN
ANY SUCH ACTION WILL BE SUFFICIENT IF SERVED ON DEBTOR BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED OR IN ANY MANNER PROVIDED BY LAW. NOTWITHSTANDING THE
FOREGOING, SECURED PARTY SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING
AGAINST DEBTOR OR THE COLLATERAL IN THE COURTS OF ANY OTHER JURISDICTION SECURED
PARTY DEEMS NECESSARY OR APPROPRIATE IN ORDER TO ENFORCE THE OBLIGATIONS OF
DEBTOR UNDER THIS AGREEMENT OR THE RIGHTS OF SECURED PARTY WITH RESPECT TO THE
COLLATERAL.
13. DEFINITIONS. As used in this Agreement, the following terms have the
following meanings:
"Obligor" means and includes Debtor and each other person primarily or
secondarily liable to Secured Party for any of the Secured Obligations, together
with his, her, its or their heirs, administrators, executors, successors and
assigns, including any resulting or surviving corporation following any merger
or any other reorganization, and also includes any debtor in possession or
similar entity following the filing of a petition for relief by or against
Obligor under any chapter of the federal bankruptcy code or in any similar
proceeding under state or federal law, and also includes any proprietorship,
partnership, corporation, trust, or other entity resulting from or arising out
of the dissolution, liquidation or change in form of business organization by
Obligor or following any change of name or domicile by Obligor.
"Secured Obligations" means all debts and other obligations now owed
by Debtor to Secured Party, all debts and other obligations owed by Debtor to
Secured Party in the future, all extensions and renewals of any such debts or
obligations, and all interest and other lawful fees and charges on any or all
such debts and obligations, including, without limitation, late charges, penalty
interest, premiums and costs of collection (including attorneys' fees) for which
Debtor has agreed to pay or reimburse Secured Party, or for which Debtor is
obligated to pay Secured Party under applicable law, together with each and
every promissory note, guaranty, or other instrument or writing now or hereafter
evidencing the obligation of Debtor to pay any such debt, the interest thereon
or such other charges; whether such debts or other obligations are now foreseen
or unforeseen; whether now due or to become due in the future; whether arising
from contract, tort or otherwise; whether arising from an original obligation of
Debtor to Secured Party or from an obligation of Debtor which was purchased by
Secured Party, whether from time to time increased, reduced or entirely
extinguished and then reincurred; whether direct or indirect, absolute or
contingent, liquidated or unliquidated, secured or unsecured; whether otherwise
guaranteed or not; and whether arising out of one or more loans or other
extension of credit from, or line of credit with, or the issuance of one or more
letters of credit by, or the acceptance of one or more bankers' acceptances by,
or the lease of personal property from, or the furnishing of other financial
accommodation by Secured Party, or otherwise. The Secured Obligations include,
without limitation, interest, fees and other charges on any debt or obligation
of Debtor to Secured Party accruing after the filing of a petition under any
chapter of the federal bankruptcy code by or against Debtor and any loans or
other credit or financial accommodations extended to Debtor after the filing of
any such petition. The Secured Obligations shall also include, without
limitation, any amounts which Debtor may be obligated to pay Secured Party under
this Agreement and all costs and expenses incurred by Secured Party in
connection with the collection and realization upon the Collateral and
enforcement of its rights hereunder, including without limitation, court costs,
litigation expenses and attorneys' fees in an amount equal to fifteen percent
(15%) of the unpaid balance of the Secured Obligations if referred to an
attorney for collection.
All terms used in this Agreement which are not expressly defined herein
shall have the meaning, if any, ascribed to them in Article 9 of the Uniform
Commercial Code.
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14. TIME OF ESSENCE. Time is of the essence of every provision of this
Agreement.
15. AMENDED AND RESTATEMENT. This Agreement is an amendment and
restatement of, and replaces in its entirety, that certain General Security
Agreement dated as of March 28, 1997 among Professional Transportation Group
Ltd., Inc.,Truck-Net, Inc., Timely Transportation, Inc., PTG, Inc., a Georgia
corporation, and SouthTrust Bank of Georgia.
[SIGNATURES COMMENCE ON NEXT PAGE]
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IN WITNESS WHEREOF, each Debtor has executed this Agreement under seal, or
has caused this Agreement to be executed by its duly authorized agent and its
seal to be affixed hereto, as of the date set forth above.
ADDRESS OF 0000 XXXXXXX XXXXX XXXX
XXXXXX: XXXXX 000
XXXXXXX, XXXXXXX 00000
DEBTOR:
PROFESSIONAL TRANSPORTATION GROUP LTD., INC.,a Georgia
corporation
By: /s/Xxxxxx X. Xxxxx
--------------------------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
TRUCK-NET, INC., a Georgia corporation
By: /s/Xxxxxx X. Xxxxx
--------------------------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
TIMELY TRANSPORTATION, INC., a Georgia corporation
By: /s/Xxxxxx X. Xxxxx
--------------------------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
PTG, INC., a Georgia corporation
By: /s/Xxxxxx X. Xxxxx
--------------------------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
TIMELY NORTH, INC., a Georgia corporation
By: /s/Xxxxxx X. Xxxxx
--------------------------------------------------
Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
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