SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of January 28, 1999, by and among MORGAN
DRIVE AWAY, INC., an Indiana corporation ("Morgan"), TDI, INC., an Indiana
corporation ("TDI"), MORGAN FINANCE, INC., an Indiana corporation ("Finance"
and, collectively with Morgan and TDI, the "Borrowers" and, each individually, a
"Borrower"), THE MORGAN GROUP, INC., a Delaware corporation ("Group"), MDA
CORP., an Oregon corporation ("MDA"), TRANSPORT SERVICES UNLIMITED, INC., an
Indiana corporation ("Transport" and, collectively with Group and MDA, the
"Guarantors" and, each individually, a "Guarantor"), and BANKBOSTON, N.A., a
national banking association, as agent (hereinafter, in such capacity, the
"Agent") for itself and other banking institutions (hereinafter, collectively,
the "Banks") which are or may become parties to a Revolving Credit and Term Loan
Agreement dated as of January 28, 1999 (as amended and in effect from time to
time, the "Credit Agreement"), among the Borrowers, Group, the Banks and the
Agent. The Borrowers and the Guarantors shall be collectively referred to herein
as the "Companies" and, each individually, a "Company".
WHEREAS, pursuant to the Credit Agreement, the Banks, subject to the
terms and conditions contained therein, have agreed to provide certain financial
accommodations to the Borrowers; and
WHEREAS, the Guarantors expect to receive substantial direct and
indirect benefits from the making of Loans and other extensions of credit to the
Borrowers by the Banks pursuant to the Credit Agreement (which benefits are
hereby acknowledged); and
WHEREAS, the Guarantors have executed and delivered to the Agent for
the benefit of the Banks and the Agent, a Guaranty dated as of the date hereof
(as amended and in effect from time to time, the "Guaranty"), pursuant to which
the Guarantors guaranty to the Agent and the Banks the payment and performance
of the Borrowers' obligations to the Banks and the Agent under or in respect of
the Credit Agreement; and
WHEREAS, it is a condition precedent to the Banks' making any loans or
otherwise extending credit to the Borrowers under the Credit Agreement that the
Companies execute and deliver to the Agent, for the benefit of the Banks and the
Agent, a security agreement in substantially the form hereof; and
WHEREAS, each of the Companies wishes to grant security interests in
favor of the Agent, for the benefit of the Banks and the Agent, as herein
provided;
NOW, THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein without definitions
shall have the respective meanings provided therefor in the Credit Agreement.
All terms defined in the Uniform Commercial Code of the Commonwealth of
Massachusetts and used herein shall have the same definitions herein as
specified therein.
2. Grant of Security Interest.
2.1. Collateral Granted. Each Company hereby grants to the Agent, for
the benefit of the Banks and the Agent, to secure the payment and performance in
full of all of the Obligations, a security interest in and so pledges and
assigns to the Agent, for the benefit of the Banks and the Agent, the following
properties, assets and rights of such Company, wherever located, whether now
owned or hereafter acquired or arising, and all proceeds and products thereof
(all of the same being hereinafter called the "Collateral"):
All personal and fixture property of every kind and
nature including without limitation all furniture, fixtures,
equipment, raw materials, inventory, other goods, accounts,
contract rights, rights to the payment of money, insurance
refund claims and all other insurance claims and proceeds,
tort claims, chattel paper, documents, instruments, securities
and other investment property, deposit accounts, rights to
proceeds of letters of credit and all general intangibles
including, without limitation, all tax refund claims, license
fees, patents, patent applications, trademarks, trademark
applications, trade names, copyrights, copyright applications,
rights to sue and recover for past infringement of patents,
trademarks and copyrights, computer programs, computer
software, engineering drawings, service marks, customer lists,
goodwill, and all licenses, permits, agreements of any kind or
nature pursuant to which such Company possesses, uses or has
authority to possess or use property (whether tangible or
intangible) of others or others possess, use or have authority
to possess or use property (whether tangible or intangible) of
such Company, and all recorded data of any kind or nature,
regardless of the medium of recording including, without
limitation, all software, writings, plans, specifications and
schematics.
2.2. Delivery of Instruments, etc.
(a) Pursuant to the terms hereof, each of the
Companies has endorsed, assigned and delivered to the Agent
all negotiable or non-negotiable instruments, certificated
securities and chattel paper pledged by it hereunder, together
with instruments of transfer or assignment duly executed in
blank as the Agent may have specified. In the event that any
Company shall, after the date of this Agreement, acquire any
other negotiable or non-negotiable instruments, certificated
securities or chattel paper to be pledged by it hereunder,
such Company shall forthwith endorse, assign and deliver the
same to the Agent, accompanied by such instruments of transfer
or assignment duly executed in blank as the Agent may from
time to time specify.
(b) To the extent that any securities now or
hereafter acquired by any Company are uncertificated and are
issued to such Company or its nominee directly by the issuer
thereof, such Company shall cause the issuer to note on its
books the security interest of the Agent in such securities
and shall cause the issuer, pursuant to an agreement in form
and substance satisfactory to the Agent, to agree to comply
with instructions from the Agent as to such securities,
without further consent of such Company or such nominee. To
the extent that any securities, whether certificated or
uncertificated, or other investment property now or hereafter
acquired by any Company is held by such Company or its nominee
through a securities intermediary or commodity intermediary,
such Company shall, at the request of the Agent, cause such
securities intermediary or (as the case may be) commodity
intermediary, pursuant to an agreement in form and substance
satisfactory to the Agent, to agree to comply with entitlement
orders or other instructions from the Agent to such securities
intermediary as to such securities or other investment
property, or (as the case may be) to apply any value
distributed on account of any commodity contract as directed
by the Agent to such commodity intermediary, without further
consent of such Company or such nominee.
(c) To the extent that any Company is a beneficiary
under any written letter of credit now or hereafter issued in
favor of such Company, such Company shall deliver such letter
of credit to the Agent. The Agent shall from time to time, at
the request and expense of such Company, make such
arrangements with such Company as are in the Agent's
reasonable judgment necessary and appropriate so that such
Company may make any drawing to which such Company is entitled
under such letter of credit, without impairment of the Agent's
perfected security interest in such Company's rights to
proceeds of such letter of credit or in the actual proceeds of
such drawing. At the Agent's request, any Company shall, for
any letter of credit, whether or not written, now or hereafter
issued in favor of such Company as beneficiary, execute and
deliver to the issuer and any confirmer of such letter of
credit an assignment of proceeds form, in favor of the Agent
and satisfactory to the Agent and such issuer or (as the case
may be) such confirmer, requiring the proceeds of any drawing
under such letter of credit to be paid directly to the Agent.
2.3. Stock Pledge Agreement.
Concurrently herewith, Group and Morgan are each
executing and delivering to the Agent, for the benefit of the
Banks and the Agent, a stock pledge agreement pursuant to
which such Companies are pledging to the Agent, for the
benefit of the Banks and the Agent, all the shares of the
capital stock of such Companies' subsidiaries. Such pledge
shall be governed by the terms of such stock pledge agreement
and not by the terms of this Agreement.
3. Title to Collateral, etc. The Companies are the owners of the
Collateral free from any adverse lien, security interest or other encumbrance,
except for the security interest created by this Agreement and other liens
permitted by the Credit Agreement. None of the Collateral constitutes, or is the
proceeds of, "farm products" as defined in ss.9-109(3) of the Uniform Commercial
Code of the Commonwealth of Massachusetts. None of the account debtors in
respect of any accounts, chattel paper or general intangibles and none of the
obligors in respect of any instruments included in the Collateral is a
governmental authority subject to the Federal Assignment of Claims Act.
4. Continuous Perfection. Each Company's place of business or, if more
than one, chief executive office is indicated on the Perfection Certificate
delivered to the Agent herewith (the "Perfection Certificate"). None of the
Companies will change the same, or the name, identity or corporate structure of
such Company in any manner, without providing at least 30 days prior written
notice to the Agent. The Collateral, to the extent not delivered to the Agent
pursuant to ss.2.2, will be kept at those locations listed on the Perfection
Certificate and no Company will remove the Collateral from such locations,
without providing at least 30 days prior written notice to the Agent.
5. No Liens. Except for the security interest herein granted and liens
permitted by the Credit Agreement, the Companies shall be the owners of the
Collateral free from any lien, security interest or other encumbrance, and the
Companies shall defend the same against all claims and demands of all persons at
any time claiming the same or any interests therein adverse to the Agent or any
of the Banks. None of the Companies shall pledge, mortgage or create, or suffer
to exist a security interest in the Collateral in favor of any person other than
the Agent, for the benefit of the Banks and the Agent, except for liens
permitted by the Credit Agreement.
6. No Transfers. None of the Companies will sell or offer to sell or
otherwise transfer the Collateral or any interest therein except for (a) sales
and leases of inventory and licenses of general intangibles in the ordinary
course of business and (b) sales or other dispositions of obsolescent items of
equipment in the ordinary course of business consistent with past practices.
7. Insurance.
7.1. Maintenance of Insurance. Each of the Companies will maintain with
financially sound and reputable insurers insurance with respect to its
properties and business against such casualties and contingencies as shall be in
accordance with general practices of businesses engaged in similar activities in
similar geographic areas and as set forth in ss.9.7 of the Credit Agreement.
Such insurance shall be in such minimum amounts that such Company will not be
deemed a co-insurer under applicable insurance laws, regulations and policies
and otherwise shall be in such amounts, contain such terms, be in such forms and
be for such periods as may be reasonably satisfactory to the Agent. In addition,
all such insurance shall be payable to the Agent as loss payee for the benefit
of the Banks and the Agent.
7.2. Insurance Proceeds. The proceeds of any casualty insurance in
respect of any casualty loss of any of the Collateral shall, subject to the
rights, if any, of other parties with a prior interest in the property covered
thereby, (a) so long as no Default or Event of Default has occurred and is
continuing and to the extent that the amount of such proceeds is less than
$250,000, be disbursed to the Companies for direct application by the Companies
solely to the repair or replacement of the Companies' property so damaged or
destroyed and (ii) in all other circumstances, be held by the Agent as cash
collateral for the Obligations. The Agent may, at its sole option, disburse from
time to time all or any part of such proceeds so held as cash collateral, upon
such terms and conditions as the Agent may reasonably prescribe, for direct
application by the Companies solely to the repair or replacement of the
Companies' property so damaged or destroyed, or the Agent may apply all or any
part of such proceeds to the Obligations with the Total Commitment (if not then
terminated) being reduced by the amount so applied to the Obligations.
7.3. Notice of Cancellation, etc. All policies of insurance shall
provide for at least 30 days prior written cancellation notice to the Agent. In
the event of failure by any Company to provide and maintain insurance as herein
provided, the Agent may, at its option, provide such insurance and charge the
amount thereof to the Companies. The Companies shall furnish the Agent with
certificates of insurance and policies evidencing compliance with the foregoing
insurance provision.
8. Maintenance of Collateral; Compliance with Law. The Companies will
keep the Collateral in good order and repair and will not use the same in
violation of law or any policy of insurance thereon. The Agent, or its designee,
may inspect the Collateral at any reasonable time, wherever located. The
Companies will pay promptly when due all taxes, assessments, governmental
charges and levies upon the Collateral or incurred in connection with the use or
operation of such Collateral or incurred in connection with this Agreement. Each
of the Companies has at all times operated, and each of the Companies will
continue to operate, its business in compliance with all applicable provisions
of the federal Fair Labor Standards Act, as amended.
9. Collateral Protection Expenses; Preservation of Collateral.
9.1. Expenses Incurred by Agent. In its discretion, the Agent
may discharge taxes and other encumbrances at any time levied or placed
on any of the Collateral, and if an Event of Default shall have
occurred and be continuing, make repairs thereto and pay any necessary
filing fees. Each of the Companies agrees to reimburse the Agent on
demand for any and all expenditures so made. The Agent shall have no
obligation to the Companies to make any such expenditures, nor shall
the making thereof relieve any Company of any default. 9.2. Agent's
Obligations and Duties.
Anything herein to the contrary notwithstanding, each of the
Companies shall remain liable under each contract or agreement
comprised in the Collateral to be observed or performed by such Company
thereunder. Neither the Agent nor any Bank shall have any obligation or
liability under any such contract or agreement by reason of or arising
out of this Agreement or the receipt by the Agent or any Bank of any
payment relating to any of the Collateral, nor shall the Agent or any
Bank be obligated in any manner to perform any of the obligations of
any Company under or pursuant to any such contract or agreement, to
make inquiry as to the nature or sufficiency of any payment received by
the Agent or any Bank in
respect of the Collateral or as to the sufficiency of any performance
by any party under any such contract or agreement, to present or file
any claim, to take any action to enforce any performance or to collect
the payment of any amounts which may have been assigned to the Agent or
to which the Agent or any Bank may be entitled at any time or times.
The Agent's sole duty with respect to the custody, safe keeping and
physical preservation of the Collateral in its possession, under
ss.9-207 of the Uniform Commercial Code of the Commonwealth of
Massachusetts or otherwise, shall be to deal with such Collateral in
the same manner as the Agent deals with similar property for its own
account.
10. Securities and Deposits. If an Event of Default shall have occurred
and be continuing, t he Agent may at any time, at its option, transfer to itself
or any nominee any securities constituting Collateral, receive any income
thereon and hold such income as additional Collateral or apply it to the
Obligations. Whether or not any Obligations are due, the Agent may demand, sue
for, collect, or make any settlement or compromise which it deems desirable with
respect to the Collateral. Regardless of the adequacy of Collateral or any other
security for the Obligations, any deposits or other sums at any time credited by
or due from the Agent or any Bank to any Company may at any time be applied to
or set off against any of the Obligations.
11. Notification to Account Debtors and Other Obligors. If an Event of
Default shall have occurred and be continuing, each of the Companies shall, at
the request of the Agent, notify account debtors on accounts, chattel paper and
general intangibles of such Company and obligors on instruments for which such
Company is an obligee of the security interest of the Agent in any account,
chattel paper, general intangible or instrument and that payment thereof is to
be made directly to the Agent or to any financial institution designated by the
Agent as the Agent's agent therefor, and the Agent may itself, if an Event of
Default shall have occurred and be continuing, without notice to or demand upon
the Companies, so notify account debtors and obligors. After the making of such
a request or the giving of any such notification, the Companies shall hold any
proceeds of collection of accounts, chattel paper, general intangibles and
instruments received by any Company as trustee for the Agent, for the benefit of
the Banks and the Agent, without commingling the same with other funds of the
Companies and shall turn the same over to the Agent in the identical form
received, together with any necessary endorsements or assignments. The Agent
shall apply the proceeds of collection of accounts, chattel paper, general
intangibles and instruments received by the Agent to the Obligations, such
proceeds to be immediately entered after final payment in cash or solvent
credits of the items giving rise to them.
12. Further Assurances. Each of the Companies, at its own expense,
shall do, make, execute and deliver all such additional and further acts,
things, deeds, assurances and instruments as the Agent may require more
completely to vest in and assure to the Agent and the Banks their respective
rights hereunder or in any of the Collateral, including, without limitation, (a)
executing, delivering and, where appropriate, filing financing statements and
continuation statements under the Uniform Commercial Code, (b) obtaining
governmental and other third party consents and approvals, (c) obtaining waivers
from mortgagees and landlords and (d) taking all actions required by Sections
8-313 and 8-321 of the Uniform Commercial Code (1990) or Sections 8-106 and
9-115 of the Uniform Commercial Code (1994), as
applicable in each relevant jurisdiction, with respect to certificated and
uncertificated securities.
13. Power of Attorney.
13.1. Appointment and Powers of Agent. Each of the Companies
hereby irrevocably constitutes and appoints the Agent and any officer
or agent thereof, with full power of substitution, as its true and
lawful attorneys-in-fact with full irrevocable power and authority in
the place and stead of such Company or in the Agent's own name, for the
purpose of carrying out the terms of this Agreement, to take any and
all appropriate action and to execute any and all documents and
instruments that may be necessary or desirable to accomplish the
purposes of this Agreement and, without limiting the generality of the
foregoing, hereby gives said attorneys the power and right, on behalf
of such Company, without notice to or assent by such Company, to do the
following: (a) upon the occurrence and during the continuance of an
Event of Default, generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral
in such manner as is consistent with the Uniform Commercial Code of the
Commonwealth of Massachusetts and as fully and completely as though the
Agent were the absolute owner thereof for all purposes, and to do at
the Companies' expense, at any time, or from time to time, all acts and
things which the Agent deems necessary to protect, preserve or realize
upon the Collateral and the Agent's security interest therein, in order
to effect the intent of this Agreement, all as fully and effectively as
such Company might do, including, without limitation, (i) the filing
and prosecuting of registration and transfer applications with the
appropriate federal or local agencies or authorities with respect to
trademarks, copyrights and patentable inventions and processes, (ii)
upon written notice to the Companies, the exercise of voting rights
with respect to voting securities, which rights may be exercised, if
the Agent so elects, with a view to causing the liquidation in a
commercially reasonable manner of assets of the issuer of any such
securities and (iii) the execution, delivery and recording, in
connection with any sale or other disposition of any Collateral, of the
endorsements, assignments or other instruments of conveyance or
transfer with respect to such Collateral; and (b) to file such
financing statements with respect hereto, with or without such
Company's signature, or a photocopy of this Agreement in substitution
for a financing statement, as the Agent may deem appropriate and to
execute in such Company's name such financing statements and amendments
thereto and continuation statements which may require such Company's
signature.
13.2. Ratification by Company. To the extent permitted by law, each of
the Companies hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable.
13.3. No Duty on Agent. The powers conferred on the Agent hereunder are
solely to protect the interests of the Agent and the Banks in the Collateral and
shall not impose any duty upon the Agent to exercise any such powers. The Agent
shall be accountable only for the amounts that it actually receives as a result
of the exercise of such powers and neither it nor any of its officers,
directors, employees or agents shall be responsible to any Company for any act
or failure to act, except for the Agent's own gross negligence or willful
misconduct.
14. Remedies. If an Event of Default shall have occurred and be
continuing, the Agent may, without notice to or demand upon the Companies,
declare this Agreement to be in default, and the Agent shall thereafter have in
any jurisdiction in which enforcement hereof is sought, in addition to all other
rights and remedies, the rights and remedies of a secured party under the
Uniform Commercial Code, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Agent may, so far as the
Companies can give authority therefor, enter upon any premises on which the
Collateral may be situated and remove the same therefrom. The Agent may in its
discretion require the Companies to assemble all or any part of the Collateral
at such location or locations within the state of the Companies' principal
offices or at such other locations as the Agent may designate. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, the Agent shall give to the
Companies at least five Business Days prior written notice of the time and place
of any public sale of Collateral or of the time after which any private sale or
any other intended disposition is to be made. The Companies hereby acknowledge
that five Business Days prior written notice of such sale or sales shall be
reasonable notice. In addition, the Companies waive any and all rights that they
may have to a judicial hearing in advance of the enforcement of any of the
Agent's rights hereunder, including, without limitation, its right following an
Event of Default to take immediate possession of the Collateral and to exercise
its rights with respect thereto. To the extent that any of the Obligations are
to be paid or performed by a person other than any Company, each of the
Companies waives and agrees not to assert any rights or privileges which it may
have under ss.9-112 of the Uniform Commercial Code of the Commonwealth of
Massachusetts.
15. No Waiver, etc. Each of the Companies waives demand, notice,
protest, notice of acceptance of this Agreement, notice of loans made, credit
extended, Collateral received or delivered or other action taken in reliance
hereon and all other demands and notices of any description. With respect to
both the Obligations and the Collateral, each of the Companies assents to any
extension or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of or failure to perfect any security interest
in any Collateral, to the addition or release of any party or person primarily
or secondarily liable, to the acceptance of partial payment thereon and the
settlement, compromising or adjusting of any thereof, all in such manner and at
such time or times as the Agent may deem advisable. The Agent shall have no duty
as to the collection or protection of the Collateral or any income thereon, nor
as to the preservation of rights against prior parties, nor as to the
preservation of any rights pertaining thereto beyond the safe custody thereof as
set forth in ss.9.2. The Agent shall not be deemed to have waived any of its
rights upon or under the Obligations or the Collateral unless such waiver shall
be in writing and signed by the Agent with the consent of the Majority Banks. No
delay or omission on the part of the Agent in exercising any right shall operate
as a waiver of such right or any other right. A waiver on any one occasion shall
not be construed as a bar to or waiver of any right on any future
occasion. All rights and remedies of the Agent with respect to the Obligations
or the Collateral, whether evidenced hereby or by any other instrument or
papers, shall be cumulative and may be exercised singularly, alternatively,
successively or concurrently at such time or at such times as the Agent deems
expedient.
16. Marshalling. Neither the Agent nor any Bank shall be required to
marshal any present or future collateral security (including but not limited to
this Agreement and the Collateral) for, or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security or other
assurances of payment in any particular order, and all of the rights of the
Agent hereunder and of the Agent or any Bank in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, each of the Companies hereby agrees that it will not invoke any law
relating to the marshalling of collateral which might cause delay in or impede
the enforcement of the Agent's rights under this Agreement or under any other
instrument creating or evidencing any of the Obligations or under which any of
the Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
each of the Companies hereby irrevocably waives the benefits of all such laws.
17. Proceeds of Dispositions; Expenses. The Companies shall pay to the
Agent on demand any and all expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by the Agent in protecting, preserving or
enforcing the Agent's rights under or in respect of any of the Obligations or
any of the Collateral. After deducting all of said expenses, the residue of any
proceeds of collection or sale of the Obligations or Collateral shall, to the
extent actually received in cash, be applied to the payment of the Obligations
in such order or preference as is provided in the Credit Agreement, proper
allowance and provision being made for any Obligations not then due. Upon the
final payment and satisfaction in full of all of the Obligations and after
making any payments required by Section 9-504(1)(c) of the Uniform Commercial
Code of the Commonwealth of Massachusetts, any excess shall be returned to the
Companies, and the Companies shall remain liable for any deficiency in the
payment of the Obligations.
18. Overdue Amounts. Until paid, all amounts due and payable by the
Companies hereunder shall be a debt secured by the Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
19. Governing Law; Consent to Jurisdiction. THIS AGREEMENT IS INTENDED
TO TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. Each of the
Companies agrees that any suit for the enforcement of this Agreement may be
brought in the courts of the Commonwealth of Massachusetts or any federal court
sitting therein and consents to the non-exclusive jurisdiction of
such court and to service of process in any such suit being made upon the
Companies by mail at the address specified in ss.21 of the Credit Agreement.
Each of the Companies hereby waives any objection that it may now or hereafter
have to the venue of any such suit or any such court or that such suit is
brought in an inconvenient court.
20. Waiver of Jury Trial. EACH OF THE COMPANIES WAIVES ITS RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, each
of the Companies waives any right which it may have to claim or recover in any
litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. Each of the Companies (a) certifies that neither the Agent or
any Bank nor any representative, agent or attorney of the Agent or any Bank has
represented, expressly or otherwise, that the Agent or any Bank would not, in
the event of litigation, seek to enforce the foregoing waivers and (b)
acknowledges that, in entering into the Credit Agreement and the other Loan
Documents to which the Agent or any Bank is a party, the Agent and the Banks are
relying upon, among other things, the waivers and certifications contained in
this ss.20.
21. Miscellaneous. The headings of each section of this Agreement are
for convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon each of
the Companies and its respective successors and assigns, and shall inure to the
benefit of the Agent, the Banks and their respective successors and assigns. If
any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein. Each
of the Companies acknowledges receipt of a copy of this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, each of the
Companies has caused this Agreement to be duly executed as of the date first
above written.
MORGAN DRIVE AWAY, INC.
By: /s/ Dennis R. Duerksen
Name: Dennis R. Duerksen
Title: CFO
TDI, INC.
By: /s/ Dennis R. Duerksen
Name: Dennis R. Duerksen
Title: CFO
THE MORGAN GROUP, INC.
By: /s/ Dennis R. Duerksen
Name: Dennis R. Duerksen
Title: CFO
MORGAN FINANCE, INC.
By: /s/ Dennis R. Duerksen
Name: Dennis R. Duerksen
Title: CFO
MDA CORP.
By: /s/ John A. Anderson
Name: President
Title: President
TRANSPORT SERVICES UNLIMITED, INC.
By: /s/ Dennis R. Duerksen
Name: Dennis R. Duerksen
Title: CFO
Accepted:
BANKBOSTON, N.A., individually
and as Agent
By: /s/ Katherine A. Brand
Katherine A. Brand
Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF INDIANA.......................................)
) ss.
COUNTY OF ELKHART......................................................)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 28TH day of January, 1999, personally appeared Dennis R.
Duerksen to me known personally, and who, being by me duly sworn, deposes and
says that he is the Chief Financial Officer of The Morgan Group, Inc., Morgan
Drive Away, Inc., TDI, Inc., Interstate Indemnity Company, Morgan Finance, Inc.,
and Transport Services Unlimited, Inc., and that said instrument was signed and
sealed on behalf of said corporations by authority of their respective Board of
Directors, and said Dennis R. Duerksen acknowledged said instrument to be the
free act and deed of said corporations.
Donna J. Miller
Notary Public
My commission expires: 10-14-2000
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF OREGON........................................)
) ss.
COUNTY OF MULTNOMAH....................................................)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 27TH day of January, 1999, personally appeared John A.
Anderson to me known personally, and who, being by me duly sworn, deposes and
says that he is the President of MDA Corp., and that said instrument was signed
and sealed on behalf of said corporations by authority of their respective Board
of Directors, and said John A. Anderson acknowledged said instrument to be the
free act and deed of said corporations.
Diane L. McLaughlin
Notary Public
My commission expires: 5-4-2001