.
.
.
EXHIBIT 10.1
PROMISSORY NOTE
<Table>
<Caption>
Principal Loan Date Maturity Loan No. Call/Coll Account Officer Initials
$382,060.00 01-16-2003 02-01-2008 ***
- ------------------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular
loan or item. Any item above containing "***" has been omitted due to text length limitations.
- ------------------------------------------------------------------------------------------------------------------------------------
</Table>
Borrower: WELBORN TRANSPORT, INC Lender: Compass Bank
P.O. BOX 020908 Alabama Processing Center
TUSCALOOSA, AL 35403 701 South 32nd Street
Birmingham, AL 35233
(800) 239-1996
- --------------------------------------------------------------------------------
Principal Amount: $382,060.00 Date of Note: January 16, 2003
PROMISE TO PAY. WELBORN TRANSPORT, INC ("Borrower") promises to pay to Compass
Bank ("Lender"), or order, in lawful money of the United States of America, the
principal amount of Three Hundred Eighty-two Thousand Sixty & 00/100 Dollars
($382,060.00), together with interest on the unpaid principal balance from
January 16, 2003, until paid in full. The interest rate will not increase above
18.000%.
PAYMENT. Subject to any payment changes resulting from changes in the Index,
Borrower will pay this loan in 60 payments of $6,969.05 each payment. Borrower's
first payment is due March 1, 2003, and all subsequent payments are due on the
same day of each month after that. Borrower's final payment will be due on
February 1, 2008, and will be for all principal and all accrued interest not yet
paid. Payments include principal and interest. Unless otherwise agreed or
required by applicable law, payments will be applied first to interest, then to
principal due, then to any unpaid collection costs and other charges due under
this Note, with any remaining amount to the outstanding principal balance. The
annual interest rate for this Note is computed on a 365/380 basis; that is, by
applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number
of days the principal balance is outstanding. Borrower will pay Lender at
Lender's address shown above or at such other place as Lender may designate in
writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change
from time to time based on changes in an independent index which is the "LIBOR
Rate" refers to the London Interbank Offered Rate for the 30-day Libor
Reference Period as quoted on the Telerate Information System, page 3750, on
the first day of each Interest Period (or in the event no such quotation is
available on such date, as quoted on the day most immediately preceding the
date of determination on which such a quotation was available) (the "Index").
The Index is not necessarily the lowest rate charged by Lender on its loans. If
the Index becomes unavailable during the term of this loan, Lender may
designate a substitute index after notice to Borrower. Lender will tell
Borrower the current Index rate upon Borrower's request. The interest rate
change will not occur more often than each month. Borrower understands that
Lender may make loans based on other rates as well. The interest rate to be
applied to the unpaid principal balance of this Note will be at a rate of 1.750
percentage points over the Index. Notwithstanding the foregoing, the variable
interest rate or rates provided for in this Note will be subject to the
following minimum and maximum rates. NOTICE: Under no circumstances will the
interest rate on this Note be less than 3.500% per annum or more than (except
for any higher default rate shown below) the lesser of 18.000% per annum or the
maximum rate allowed by applicable law. Whenever increases occur in the
interest rate, Lender, at its option, may do one or more of the following: (A)
increase Borrower's payments to ensure Borrower's loan will pay off by its
original final maturity date, (B) increase Borrower's payments to cover
accruing interest, (C) increase the number of Borrower's payments, and (D)
continue Borrower's payments at the same amount and increase Borrower's final
payment.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount
owed earlier than it is due. Early payments will not, unless agreed to by
Lender in writing, relieve Borrower of Borrower's obligation to continue to
make payments under the payment schedule. Rather, early payments will reduce
the principal balance due and may result in Borrower's making fewer payments.
Borrower agrees not to send Lender payments marked "paid in full", "without
recourse", or similar language. If Borrower sends such a payment, Lender may
accept it without losing any of Lender's rights under this Note, and Borrower
will remain obligated to pay any further amount owed to Lender. All written
communications concerning disputed amounts,including any check or other payment
instrument that indicates that the payment constitutes "payment in full" of the
amount owed or that is tendered with other conditions or limitations or as full
satisfaction of a disputed amount must be mailed or delivered to: Compass Bank,
Alabama Processing Center, 701 South 32nd Street, Birmingham, AL 35233.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% of the unpaid portion of the regularly scheduled payment.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law,
increase the variable interest rate on this Note to 18.000% per annum. The
interest rate will not exceed the maximum rate permitted by applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Note:
Payment Default. Borrower fails to make any payment when due under this
Note.
Other Defaults. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Note or in any
of the related documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement between
Lender and Borrower.
Default in Favor of Third Parties. Borrower or any Grantor defaults under
any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Borrower's property or Borrower's
ability to repay this Note or perform Borrower's obligations under this
Note or any of the related documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Note or
the related documents is false or misleading in any material respect,
either now or at the time made or furnished or becomes false or misleading
at any time thereafter.
Insolvency. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the loan. This
includes a garnishment of any of Borrower's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if
there is a good faith dispute by Borrower as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve
or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect
to any Guarantor of any of the indebtedness or any Guarantor dies or
becomes incompetent, or revokes or disputes the validity of, or liability
under, any guaranty of the indebtedness evidenced by this Note.
Change in Ownership. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
Adverse Change. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of
this Note is impaired.
Insecurity. Lender in good faith believes itself insecure.
LENDER'S RIGHTS. Upon the occurrence of any default described in the "Death or
Insolvency" or "Taking of the Property" clauses, to the extent that any such
default by a guarantor relates to the matters described in the clause "Death or
Insolvency" of the paragraph entitled "DEFAULT", the entire unpaid principal
balance on this Note and all accrued unpaid interest shall become immediately
due, without notice, declaration or other action by Lender, and then Borrower
will pay that amount. Upon the occurrence of any other default described in
that paragraph, Lender may declare the entire unpaid principal balance on this
Note and all accrued unpaid interest immediately due, without notice, and then
Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect
this Note if Borrower does not pay. Borrower will pay Lender that amount. This
includes, subject to any limits under applicable law, Lender's attorneys' fees
and Lender's legal expenses whether or not there is a lawsuit, including
attorneys' fees and expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. If not prohibited by applicable
law, Borrower also will pay any court costs, in addition to all other sums
provided by law.
GOVERNING LAW. This Note will be governed by, construed and enforced in
accordance with federal law and the laws of the State of Alabama. This Note has
been accepted by Lender in the State of Alabama.
PROMISSORY NOTE
CONTINUED PAGE 2
================================================================================
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any IRA or Keogh accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
indebtedness against any and all such accounts.
COLLATERAL. Borrower acknowledges this Note is secured by the following
collateral described in the security instrument listed herein, all the terms and
conditions of which are hereby incorporated and made a part of this Note: titled
collateral described in a Commercial Security Agreement dated January 16, 2003.
FEE TO WAIVE VIOLATION OF COVENANT. Lender reserves the right to access and
collect a fee in connection with any agreement by Lender to waive the violation
of any covenant contained in the Note or any other document or agreement signed
in connection with the Note or to waive or forego its rights and remedies upon
the occurrence of a default. The foregoing statement shall not in any respect
obligate the Lender to waive the violation of any covenant or to forego its
rights and remedies upon the occurrence of a default, which it may not do in
its sole discretion.
AMENDMENTS. This Note constitutes the entire understanding and agreements of
the parties as to the matters set forth in this Note. No alteration or
amendment of this Note shall be effective unless given in writing and signed by
the party or parties sought to be bound by the alteration or amendment.
SEVERABILITY. If a court of competent jurisdiction finds any provision of this
Note to be illegal, invalid, or unenforceable as to any circumstance, that
finding shall not make the offending provision illegal, invalid, or
unenforceable as to any other circumstance. If feasible, the offending
provision shall be considered modified so that it becomes legal, valid and
enforceable. If the offending provision cannot be so modified, it shall be
considered deleted from this Note. Unless otherwise required by law, the
illegality, invalidity, or unenforceability of any provision of this Note shall
not affect the legality, validity or enforceability of any other provision of
this Note.
ADDITIONAL PROVISIONS. Notwithstanding any other provisions of this Note to
the contrary:
1. Lender's Remedies. Lender also may exercise any and all remedies available
to it. Lender's rights are cumulative and may be exercised together, separately,
and in any order.
2. No Assignment. Borrower agrees not to assign any of Borrower's rights or
obligations under this Note.
3. Prepayments. The terms "prepayment" and "early payment" mean any payment
that exceeds the combined amount of interest, principal due, and charges due as
of the date Lender receives that payment. The amount of this excess will be
applied to the outstanding principal balance.
4. Final Payment. Borrower agrees that, if Borrower owes any late charges,
collection costs or other amounts under this Note or any related documents,
Borrower's final payment under this Note will include all of these amounts, as
well as all unpaid principal and accrued interest.
5. Loan Fees. Borrower agrees that all loan fees and other prepaid finance
charges are fully earned as of the date of the loan and will not be subject to
refund upon early payment (whether voluntary or as a result of default).
ADDITIONAL EVENTS OF DEFAULT. Notwithstanding any other provisions herein to
the contrary, each of the following also shall be an Event of Default hereunder:
(i) If the Borrower is an LLC, any change in the ownership of twenty-five
percent (25%) or more of the membership interests in Borrower.
(ii) Any material adverse change in the financial condition of any guarantor.
JURISDICTION. Any legal action or proceeding brought by Lender or Borrower
against the other arising out of or relating to the loan evidenced by this Note
(a "Proceeding") shall be instituted in the federal court for or the state court
sitting in the county where Lender's office that made this loan is located. With
respect to any Proceeding, each Borrower, to the fullest extent permitted by
law: (i) waives any objections that Borrower may now or hereafter have based on
venue and/or forum non convenience of any Proceeding in such court; and (ii)
irrevocably submits to the jurisdiction of any such court in any Proceeding.
Notwithstanding anything to the contrary herein, Lender may commence legal
proceedings or otherwise proceed against Borrower in any other jurisdiction if
determined by Lender to be necessary in order to fully enforce or exercise any
right or remedy of Lender relating to this loan including without limitation
realization upon collateral that secures this loan.
BUSINESS PURPOSE. I agree to use the proceeds of this Note solely for business
purposes and not any personal, family or household purpose.
INTEREST RATE PROTECTION. If Borrower enters into a separate agreement with
Lender for an interest rate swap product designed to allow Borrower effectively
to pay a fixed rate on all or any portion of this variable rate Note (a "Swap
Agreement"), then, for any payment period under this Note, Lender will waive
any minimum interest rate provided in the Note, but only: (1) for as long as
the Swap Agreement remains in effect; and (2) with respect to that portion of
the outstanding principal balance of this Note that is equal to the amount used
to calculate the payment due under the Swap Agreement for the same payment
period.
OTHER COLLATERAL. Collateral securing other loans with Lender may also secure
this loan. To the extent collateral previously has been given to lender by any
person which may secure this loan, whether directly or indirectly, it is
specifically agreed that, to the extent prohibited by law, all such collateral
consisting of household goods will not secure this loan. In addition, if any
collateral requires the giving of a right of rescission under Truth in Lending
for this loan, such collateral also will not secure this loan unless and until
all required notices of that right have been given.
CHANGE IN INITIAL INTEREST RATE. If this Note evidences an extension of credit
with a variable rate and an initial interest rate is stated, the initial rate
stated on the Note when it is signed may differ from the actual rate due to
changes in the index before closing.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower,
and upon Borrower's heirs, personal representatives, successors and assigns,
and shall inure to the benefit of Lender and its successors and assigns.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any change in the
terms of this Note, and unless otherwise expressly stated in writing, no party
who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and for any length of time) this loan or
release any party or guarantor or collateral; or impair, fail to realize upon
or perfect Lender's security interest in the collateral; and take any other
action deemed necessary by Lender without the consent of or notice to anyone.
All such parties also agree that Lender may modify this loan without the
consent of or notice to anyone other than the party with whom the modification
is made. The obligations under this Note are joint and several.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL
CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
BORROWER:
WELBORN TRANSPORT, INC.
By: /s/ Richard Bailey (Seal)
---------------------------------------------
RICHARD BAILEY, CFO of WELBORN TRANSPORT, INC
AGREEMENT TO PROVIDE INSURANCE
- -----------------------------------------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call / Call Account Officer Initials
$382,060.00 01-16-2003 02-01-2008 ***
- -----------------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan
or item.
Any item above containing "***" has been omitted due to text length limitations.
- -----------------------------------------------------------------------------------------------------------------------------------
Grantor: WELBORN TRANSPORT, INC. Lender: Compass Bank
P.O. BOX 020968 Alabama Processing Center
TUSCALOOSA, AL 35403 701 South 32nd Street
Birmingham, AL 35233
(800) 239-1996
- -----------------------------------------------------------------------------------------------------------------------------------
INSURANCE REQUIREMENTS. Grantor, WELBORN TRANSPORT, INC. ("Grantor"),
understands that insurance coverage is required in connection with the extending
of a loan or the providing of other financial accommodations to Grantor by
Lender. These requirements are set forth in the security documents for the loan.
The following minimum insurance coverages must be provided on the following
described collateral (the "Collateral"):
COLLATERAL: 2003 INTERNATIONAL 9400 SBA 6X4 DETROIT S-60 DSL
(Serial Number 3HSCNAMR03N065978).
Type: Comprehensive and collision.
Amount: Loan Amount.
Basis: Replacement value.
Endorsements: Loss Payee -- Compass Bank or It's Successors
and/or Assigns; and further stipulating that coverage will not
be cancelled or diminished without a minimum of 30 days prior
written notice to Lender.
Deductibles: $500.00
Latest Delivery Date: By the loan closing date.
COLLATERAL: 2003 INTERNATIONAL 9400 SBA 6X4 DETROIT S-60 DSL
(Serial Number 3HSCNAMR23N06579).
Type: Comprehensive and collision.
Amount: Loan Amount.
Basis: Replacement value.
Endorsements: Loss Payee -- Compass Bank or It's Successors
and/or Assigns; and further stipulating that coverage will not
be cancelled or diminished without a minimum of 30 days prior
written notice to Lender.
Deductibles: $500.00
Latest Delivery Date: By the loan closing date.
COLLATERAL: 2003 INTERNATIONAL 9400 SBA 6X4 DETROIT S-60 DSL
(Serial Number 3HSCHAMR93N065980).
Type: Comprehensive and collision.
Amount: Loan Amount.
Basis: Replacement value.
Endorsements: Loss Payee -- Compass Bank or It's Successors
and/or Assigns; and further stipulating that coverage will not
be cancelled or diminished without a minimum of 30 days prior
written notice to Lender.
Deductibles: $500.00
Latest Delivery Date: By the loan closing date.
COLLATERAL: 2003 INTERNATIONAL 9400 SBA 6X4 DETROIT S-60 DSL
(Serial Number 3HSCNAMR03N065981).
Type: Comprehensive and collision.
Amount: Loan Amount.
Basis: Replacement value.
Endorsements: Loss Payee -- Compass Bank or It's Successors
and/or Assigns; and further stipulating that coverage will not
be cancelled or diminished without a minimum of 30 days prior
written notice to Lender.
Deductibles: $500.00
Latest Delivery Date: By the loan closing date.
COLLATERAL: 2003 INTERNATIONAL 9400 SBA 6X4 DETROIT S-60 DSL
(Serial Number 3HSCNAMR23N065982).
Type: Comprehensive and collision.
Amount: Loan Amount.
Basis: Replacement value.
Endorsements: Loss Payee -- Compass Bank or It's Successors
and/or Assigns; and further stipulating that coverage will not
be cancelled or diminished without a minimum of 30 days prior
written notice to Lender.
Deductibles: $500.00
Latest Delivery Date: By the loan closing date.
INSURANCE COMPANY. Grantor may obtain insurance from any insurance company
Grantor may choose that is reasonably acceptable to Lender. Grantor understands
that credit may not be denied solely because insurance was not purchased
through Lender.
INSURANCE MAILING ADDRESS. All documents and other materials relating to
insurance for this loan should be mailed, delivered or directed to the following
address:
Compass Bank
Commercial Loan Hub
701 32nd Street South
Birmingham, AL 35233
ADDITIONAL REQUIRED COVERAGE. Notwithstanding any other provisions of this
Agreement to the contrary, the description of any minimum insurance coverage
above in no way limits Lender's right to require additional insurance coverage.
ADDITIONAL AUTHORIZATION. Notwithstanding any provisions of this Assignment to
the contrary, Lender may, but is not required to, act as attorney-in-fact for
Grantor in making and settling claims under these and any other insurance
policies on the Collateral, canceling any policy or endorsing Grantor's name on
any draft or negotiable instrument drawn by any insurer. Grantor shall cooperate
with Lender in obtaining the benefits of any insurance on the Collateral or the
other proceeds of that insurance, and shall reimburse Lender for any expense
incurred in connection with such insurance, including the expense of an
independent appraisal in case of fire or other casualty affecting the
Collateral.
FAILURE TO PROVIDE INSURANCE. Grantor agrees to deliver to Lender, on the latest
delivery date stated above, evidence of the required insurance as provided
above, with an effective date of January 16, 2003, or earlier. Grantor
acknowledges and agrees that if Grantor fails to provide any required insurance
or fails to continue such insurance in force, Lender may do so at Grantor's
expense as provided in the applicable security document. The cost of any such
insurance, at the option of Lender, shall be added to the indebtedness as
provided in the security document. GRANTOR ACKNOWLEDGES THAT IF LENDER SO
PURCHASES ANY SUCH INSURANCE, THE INSURANCE WILL PROVIDE LIMITED PROTECTION
AGAINST PHYSICAL DAMAGE TO THE COLLATERAL, UP TO AN AMOUNT EQUAL TO THE LESSER
OF (1) THE UNPAID BALANCE OF THE DEBT, EXCLUDING ANY UNEARNED FINANCE CHARGES,
OR (2) THE VALUE OF THE COLLATERAL; HOWEVER, GRANTOR'S EQUITY IN THE COLLATERAL
MAY NOT BE INSURED. IN ADDITION, THE INSURANCE MAY NOT PROVIDE ANY PUBLIC
LIABILITY OR PROPERTY DAMAGE INDEMNIFICATION AND MAY NOT MEET THE REQUIREMENTS
OF ANY FINANCIAL RESPONSIBILITY LAWS.
AUTHORIZATION. For purposes of insurance coverage on the Collateral, Grantor
authorizes Lender to provide to any person (including any insurance agent or
company) all information Lender deems appropriate, whether regarding the
Collateral, the loan or other financial accommodations, or both.
AGREEMENT TO PROVIDE INSURANCE
(Continued)
Page 2
================================================================================
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS AGREEMENT TO
PROVIDE INSURANCE AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED JANUARY 16,
2003.
THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS
AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO
LAW.
GRANTOR:
WELBORN TRANSPORT, INC.
By: /s/ Richard Bailey (Seal)
------------------------------------
RICHARD BAILEY, CEO of WELBORN
TRANSPORT, INC
================================================================================
FOR LENDER USE ONLY
INSURANCE VERIFICATION
DATE: PHONE
------------------------------ -------------------------
------------------------------
AGENT'S NAME:
--------------------------------
AGENCY:
--------------------------------------
INSURANCE COMPANY:
---------------------------
POLICY NUMBER:
EFFECTIVE DATES:
----------------------------------------------------------------
- --------------------------------------------------------------------------------
COMMENTS:
-----------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
FOR LENDER USE ONLY
INSURANCE VERIFICATION
DATE: PHONE
------------------------------ -------------------------
------------------------------
AGENT'S NAME:
--------------------------------
AGENCY:
--------------------------------------
INSURANCE COMPANY:
---------------------------
POLICY NUMBER:
EFFECTIVE DATES:
----------------------------------------------------------------
- --------------------------------------------------------------------------------
COMMENTS:
-----------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
FOR LENDER USE ONLY
INSURANCE VERIFICATION
DATE: PHONE
------------------------------ -------------------------
------------------------------
AGENT'S NAME:
--------------------------------
AGENCY:
--------------------------------------
INSURANCE COMPANY:
---------------------------
POLICY NUMBER:
EFFECTIVE DATES:
----------------------------------------------------------------
- --------------------------------------------------------------------------------
COMMENTS:
-----------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
FOR LENDER USE ONLY
INSURANCE VERIFICATION
DATE: PHONE
------------------------------ -------------------------
------------------------------
AGENT'S NAME:
--------------------------------
AGENCY:
--------------------------------------
INSURANCE COMPANY:
---------------------------
POLICY NUMBER:
EFFECTIVE DATES:
----------------------------------------------------------------
- --------------------------------------------------------------------------------
COMMENTS:
-----------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
COMMERCIAL SECURITY AGREEMENT
- -----------------------------------------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call / Call Account Officer Initials
$382,060.00 01-06-2003 02-1-2008 ***
- -----------------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan
or item.
Any item above containing "***" has been omitted due to text length limitations.
- -----------------------------------------------------------------------------------------------------------------------------------
Grantor: WELBORN TRANSPORT, INC. Lender: Compass Bank
P.O. BOX 020968 Alabama Processing Center
TUSCALOOSA, AL 35403 701 South 32nd Street
Birmingham, AL 35233
(800) 239-1996
===================================================================================================================================
THIS COMMERCIAL SECURITY AGREEMENT dated January 16, 2003, is made and executed
between WELBORN TRANSPORT, INC ("Grantor") and Compass Bank ("Lender").
GRANT OF SECURITY INTEREST. For valuable consideration, Grantor grants to
Lender a security interest in the Collateral to secure the Indebtedness and
agrees that Lender shall have the rights stated in this Agreement with respect
to the Collateral, in addition to all other rights which Lender may have by law.
COLLATERAL DESCRIPTION. The word "Collateral" as used in this Agreement means
the following described property in which Grantor is giving to Lander a
security interest for the payment of the indebtedness and performance of all
other obligations under the Note and this Agreement:
2003 INTERNATIONAL 9400 SBA 6X4 DETROIT S-60 DSL
(Serial Number 3HSCNAMR03N066978)
2003 INTERNATIONAL 9400 SBA 6X4 DETROIT S-60 DSL
(Serial Number 3HSCNAMR23N06679)
2003 INTERNATIONAL 9400 SBA 6x4 DETROIT S-60 DSL
(Serial Number 3HSCHAMR93N065980)
2003 INTERNATIONAL 9400 SBA 6X4 DETROIT S-60 DSL
(Serial Number 3HSCNAMR03N065981)
2003 INTERNATIONAL 9400 SBA 6X4 DETROIT S-60 DSL
(Serial Number 3HSCNAMR23N065982)
In addition, the word "Collateral" also includes all the following:
(A) All accessions, attachments, accessories, replacements of the
additions to any of the collateral described herein, whether added now or later.
(B) All products and produce of any of the property described in this
Collateral section.
(C) All accounts, general intangibles, instruments, rents, monies,
payments, and all other rights, arising out of a sale, lease, or other
disposition of any of the property described in this Collateral section.
(D) All proceeds (including insurance proceeds) from the sale,
destruction, loss, or other disposition of any of the property described in
this Collateral section, and sums due from a third party who has damaged or
destroyed the Collateral or from that party's insurer, whether due to judgment,
settlement or other process.
(E) All records and data relating to any of the property described in
this Collateral section, whether in the form of a writing, photograph,
microfilm, microfiche, or electronic media, together with all of Grantor's
right, title, and interest in and to all computer software required to utilize,
create, maintain, and process any such records or data on electronic media.
Despite any other provision of this Agreement, Lender is not granted, and will
not have, a nonpurchase money security interest in household goods, to the
extent such a security interest would be prohibited by applicable law. In
addition, if because of the type of any Property, Lender is required to give a
notice of the right to cancel under Truth in Lending for the Indebtedness, then
Lender will not have a security interest in such Collateral unless and until
such a notice is given.
CROSS-COLLATERALIZATION. In addition to the Note, this Agreement secures all
obligations, debts and liabilities, plus interest thereon, of Grantor to
Lender, or any one or more of them, as well as all claims by Lender against
Grantor or any one or more of them, whether now existing or hereafter arising,
whether related or unrelated to the purpose of the Note, whether voluntary or
otherwise, whether due or not due, direct or indirect, determined or
undetermined, absolute or contingent, liquidated or unliquidated whether
Grantor may be liable individually or jointly with others, whether obligated as
guarantor, surety, accommodation party or otherwise, and whether recovery upon
such amounts may be or hereafter may become barred by any statute of
limitations, and whether the obligation to repay such amounts may be or
hereafter may become otherwise unenforceable.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Grantor's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Grantor holds
jointly with someone else and all accounts Grantor may open in the future.
However, this does not include any IRA or Keogh accounts, or any trust accounts
for which setoff would be prohibited by law. Grantor authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
indebtedness against any and all such accounts.
GRANTOR'S REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. With
respect to the Collateral, Grantor represents and promises to Lender that:
ORGANIZATION. Grantor is a corporation for profit which is, and at
all times shall be, duly organized, validly existing, and in good
standing under and by virtue of the laws of the State of Alabama.
Grantor is duly authorized to transact business in all other states in
which Grantor is doing business, having obtained all necessary
filings, governmental licenses and approvals for each state in which
Grantor is doing business. Specifically, Grantor is, and at all times
shall be, duly qualified as a foreign corporation in all states in
which the failure to so qualify would have a material adverse effect
on its business or financial condition. Grantor has the full power and
authority to own its properties and to transact the business in which
it is presently engaged or presently proposes to engage. Grantor
maintains an office at P.O. BOX 020968, TUSCALOOSA, AL 35403. Unless
Grantor has designated otherwise in writing, the principal office is
the office at which Grantor keeps its books and records including its
records concerning the Collateral. Grantor will notify Lender prior to
any change in the location of Grantor's state of organization or any
change in Grantor's name. Grantor shall do all things necessary to
preserve and to keep in full force and effect its existence, rights
and privileges, and shall comply with all regulations, rules,
ordinances, statutes, orders and decrees of any governmental or
quasi-governmental authority or court applicable to Grantor and
Grantor's business activities.
AUTHORIZATION. Grantor's execution, delivery, and performance of this
Agreement and all the Related Documents have been duly authorized by
all necessary action by Grantor, do not require the consent or
approval of any other person, regulatory authority, or governmental
body, and do not conflict with, result in a violation of, or
constitute a default under (1) any provision of Grantor's articles or
incorporation or organization, or bylaws, or any agreement or other
instrument binding upon Grantor or (2) any law, governmental
regulation, court degree, or order applicable to Grantor or to
Grantor's properties. Grantor has the power and authority to enter
into the Note and the Related Documents and to grant collateral as
security of the indebtedness. Grantor has the further power and
authority to own and to hold all of Grantor's assets and properties,
and to carry on Grantor's business as presently conducted.
PERFECTION OF SECURITY INTEREST. Grantor agrees to execute financial
statements and to take whatever other actions are requested by Lender
to perfect and continue Lender's security interest in the Collateral.
Upon request of Lender, Grantor will deliver to Lender any and all of
the documents evidencing or constituting the Collateral, and Grantor
will note Lender's interest upon any and all chattel paper if not
delivered to Lender for possession by Lender.
NOTICE TO LENDER. Grantor will promptly notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may
designate from time to time) prior to any (1) change in Grantor's
name; (2) change in Grantor's assumed business names(s); (3) change in
the management of the Corporation Grantor; (4) change in the
authorized signer(s); (5) change in Grantor's principal office
address; (6) change in Grantor's state of organization; (7) conversion
of Grantor to a new or different type of business entity; or (8)
change in any other aspect of Grantor that directly or indirectly
relates to any agreements between Grantor and Lender. No change in
Grantor's name or state of organization will take effect until after
Lender has received notice. Grantor represents and warrants to Lender
that Grantor has provided Lender with Grantor's correct Employer
Identification Number. Grantor promptly shall notify Lender should
Grantor apply for or obtain a new Employer Identification Number.
NO VIOLATION. The execution and delivery of this Agreement will not
violate any law or agreement governing Grantor or to which Grantor is
a party, and its certificate or articles or incorporation and bylaws
do not prohibit any term or condition of this Agreement.
ENFORCEABILITY OF COLLATERAL. To the extent the Collateral consists
of accounts, chatter paper, or general intangibles, as defined by the
Uniform Commercial Code, the Collateral is enforceable in accordance
with its terms, is genuine, and fully complies with all applicable
laws and regulations concerning form, content and manner of
preparation and execution, and all persons appearing to be obligated
on the
COMMERCIAL SECURITY AGREEMENT
(Continued) Page 2
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Collateral have authority and capacity to contract and are in fact obligated
as they appear to be on the Collateral. There shall be no setoffs or
counterclaims against any of the Collateral, and no agreement shall have been
made under which any deductions or discounts may be claimed concerning the
Collateral except those disclosed to Lender in writing.
LOCATION OF THE COLLATERAL. Except in the ordinary course of Grantor's
business, Grantor agrees to keep the Collateral at Grantor's address shown
above or at such other locations as are acceptable to Lender. Upon Lender's
request, Grantor will deliver to Lender in form satisfactory to Lender a
schedule of real properties and Collateral locations relating to Grantor's
operations, including without limitation the following: (1) all real property
Grantor owns or is purchasing; (2) all real property Grantor is renting or
leasing; (3) all storage facilities Grantor owns, rents, leases, or uses; and
(4) all other properties where Collateral is or may be located.
REMOVAL OF THE COLLATERAL. Except in the ordinary course of Grantor's business,
Grantor shall not remove the Collateral from its existing location without
Lender's prior written consent. To the extent that the Collateral consists of
vehicles, or other titled property, Grantor shall not take or permit any action
which would require application for certificates of title for the vehicles
outside the State of Alabama, without Lender's prior written consent. If
Grantor moves from Grantor's address shown above to another location within the
same state, Grantor may move the Collateral to Grantor's new address, but only
if Grantor gives Lender the new address in writing prior to Grantor's moving.
In any event, Grantor agrees to keep Lender informed at all times of Grantor's
current address. Grantor shall, whenever requested, advise Lender of the exact
location of the Collateral.
TRANSACTIONS INVOLVING COLLATERAL. Except for inventory sold or accounts
collected in the ordinary course of Grantor's business, or as otherwise
provided for in this Agreement, Grantor shall not sell, offer to sell, or
otherwise transfer or dispose of the Collateral. Grantor shall not pledge,
mortgage, encumber or otherwise permit the Collateral to be subject to any
lien, security interest, encumbrance, or charge, other than the security
interest provided for in this Agreement, without the prior written consent of
Lender. This includes security interests even if junior in right to the
security interests granted under this Agreement. Unless waived by Lender, all
proceeds from any disposition of the Collateral (for whatever reason) shall be
held in trust for Lender and shall not be commingled with any other funds;
provided however, this requirement shall not constitute consent by Lender to
any sale or other disposition. Upon receipt, Grantor shall immediately deliver
any such proceeds to Lender.
TITLE. Grantor represents and warrants to Lender that Grantor holds good and
marketable title to the Collateral, free and clear of all liens and
encumbrances except for the lien of this Agreement. No financing statement
covering any of the Collateral is on file in any public office other than those
which reflect the security interest created by this Agreement or to which
Lender has specifically consented. Grantor shall defend Lender's rights in the
Collateral against the claims and demands of all other persons.
REPAIRS AND MAINTENANCE. Grantor agrees to keep and maintain, and to cause
others to keep and maintain, the Collateral in good order, repair and condition
at all times while this Agreement remains in effect. Grantor further agrees to
pay when due all claims for work done on, or services rendered or material
furnished in connection with the Collateral so that no lien or encumbrance may
ever attach to or be filed against the Collateral.
INSPECTION OF COLLATERAL. Lender and Lender's designated representatives and
agents shall have the right at all reasonable times to examine and inspect the
Collateral wherever located.
TAXES, ASSESSMENTS AND LIENS. Grantor will pay when due all taxes, assessments
and liens upon the Collateral, its use or operation, upon this Agreement, upon
any promissory note or notes evidencing the indebtedness, or upon any of the
other Related Documents. Grantor may withhold any such payment or may elect to
contest any lien if Grantor is in good faith conducting an appropriate
proceeding to contest the obligation to pay and so long as Lender's interest in
the Collateral is not jeopardized in Lender's sole opinion, If the Collateral
is subjected to a lien which is not discharged within fifteen (15) days,
Grantor shall deposit with Lender each, a sufficient corporate surety bond or
other security satisfactory to Lender in an amount adequate to provide for the
discharge of the lien plus any interest, costs, attorneys' fees or other
charges that could accrue as a result of foreclosure or sale of the Collateral.
In any contest Grantor shall defend itself and Lender and shall satisfy any
final adverse judgment before enforcement against the Collateral. Grantor shall
name Lender as an additional obligee under any surety bond furnished in the
contest proceedings.
REPAIRS AND MAINTENANCE. Grantor shall keep and maintain and shall cause others
to keep and maintain the Collateral in good order, repair and merchantable
condition. Grantor shall further make and/or cause all necessary repairs to be
made to the Collateral, including the repair and restoration of any portion of
the Collateral that may be damaged, lost or destroyed. In addition, Grantor
shall not, without the prior written consent of Lender, make or permit to be
made any alterations to any of the Collateral that may reduce or impair the
Collateral's use, value or marketability. Furthermore, Grantor shall not, nor
shall Grantor permit others to abandon, commit waste, or destroy the Collateral
or any part or parts thereof. Grantor further agrees to furnish Lender with
evidence that such taxes, assessments, and governmental and other charges have
been paid in full and in a timely manner. Grantor may withhold any such payment
or may elect to contest any lien if Grantor is in good faith conducting an
appropriate proceeding to contest the obligation to pay and so long as Lender's
interest in the Collateral is not jeopardized.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Grantor shall comply promptly with
all laws, ordinances, rules and regulations of all governmental authorities,
now or hereafter in effect, applicable to the ownership, production,
disposition, or use of the Collateral, including all laws or regulations
relating to the undue erosion of highly-erodible land or relating to the
conversion of wetlands for the production of an agricultural product or
commodity. Grantor may contest in good faith any such law, ordinance or
regulation and withhold compliance during any proceeding, including appropriate
appeals, so long as Lender's interest in the Collateral, in Lender's opinion,
is not jeopardized.
HAZARDOUS SUBSTANCES. Grantor represents and warrants that the Collateral never
has been, and never will be so long as this Agreement remains a lien on the
Collateral, used in violation of any Environmental Laws or for the generation,
manufacture, storage, transportation, treatment, disposal, release or
threatened release of any Hazardous Substance. The representations and
warranties contained herein are based on Grantor's due diligence in
investigating the Collateral for Hazardous Substances. Grantor hereby (1)
releases and waives any future claims against Lender for indemnity or
contribution in the event Grantor becomes liable for cleanup or other costs
under any Environmental Laws, and (2) agrees to indemnity and hold harmless
Lender against any and all claims and losses resulting from a breach of this
provision of this Agreement. This obligation to indemnify shall survive the
payment of the indebtedness and the satisfaction of this Agreement.
MAINTENANCE OF CASUALTY INSURANCE. Grantor shall procure and maintain all risks
insurance, including without limitation fire, theft and liability coverage
together with such other insurance as Lender may require with respect to the
Collateral, in form, amounts, coverages and basis reasonably acceptable to
Lender and issued by a company or companies reasonably acceptable to Lender.
Grantor, upon request of Lender, will deliver to Lender from time to time the
policies or certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at
least thirty (30) days' prior written notice to Lender and not including any
disclaimer of the insurer's liability for failure to give such a notice. Each
insurance policy also shall include an endorsement providing that coverage in
favor of Lender will not be impaired in any way by any act, omission or default
of Grantor or any other person. In connection with all policies covering assets
in which Lender holds or is offered a security interest, Grantor will provide
Lender with such loss payable or other endorsements as Lender may require. If
Grantor at any time fails to obtain or maintain any insurance as required under
this Agreement, Lender may (but shall not be obligated to) obtain such
insurance as Lender deems appropriate, including if Lender so chooses "single
interest insurance," which will cover only Lender's interest in the Collateral.
APPLICATION OF INSURANCE PROCEEDS. Grantor shall promptly notify Lender of any
loss or damage to the Collateral. Lender may make proof of loss if Grantor
fails to do so within fifteen (15) days of the casualty. All proceeds of any
insurance on the Collateral, including accrued proceeds thereon, shall be held
by Lender as part of the Collateral. If Lender consents to repair or
replacement of the damaged or destroyed Collateral, Lender shall, upon
satisfactory proof of expenditure, pay or reimburse Grantor from the proceeds
for the reasonable cost of repair or restoration. If Lender does not consent to
repair or replacement of the Collateral, Lender shall retain a sufficient
amount of the proceeds to pay all of the indebtedness, and shall pay the
balance to Grantor. Any proceeds which have not been disbursed within six (6)
months after their receipt and which Grantor has not committed to the repair or
restoration of the Collateral shall be used to prepay the indebtedness.
REQUIRED INSURANCE. So long as this Agreement remains in effect, Grantor shall,
at its sole cost, keep and/or cause others, at their expense, to keep the
Collateral constantly insured against loss by fire, by hazards included within
the term "extended coverage," and by such other hazards (including flood
insurance where applicable) as may be required by Lender.
INSURANCE PROCEEDS. Lender shall have the right to directly receive the
proceeds of all insurance protecting the Collateral. In the event that Grantor
should receive any such insurance proceeds, Grantor agrees to immediately turn
over and to pay such proceeds directly to Lender. All insurance proceeds may be
applied, at its sole option and discretion, and in such a manner as Lender may
determine (after payment of all reasonable costs, expenses and attorneys' fees
necessarily paid or fees necessarily paid or incurred by Lender in this
connection), for the purpose of: (1) repairing or restoring the lost, damaged
or destroyed Collateral; or (2) reducing the then outstanding balance of
Grantor's indebtedness.
Lender's receipt of such insurance proceeds and the application of such proceeds
as provided herein shall not, however, affect the lien of this Agreement.
Nothing under this section shall be deemed to excuse Grantor from its
obligations promptly to repair, replace or restore any lost or damaged
Collateral, whether or not the same may be covered by insurance, and whether or
not such proceeds of insurance are
COMMERCIAL SECURITY AGREEMENT
(CONTINUED) PAGE 3
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available, and whether such proceeds are sufficient in amount to complete
such repair, replacement or restoration to the satisfaction of Lender.
Furthermore, unless otherwise confirmed by Lender in writing, the
application or release of any insurance proceeds by Lender shall not be
deemed to cure or waive any Event of Default under this Agreement. Any
proceeds which have not been disbursed within six (6) months after their
receipt and which Grantor has not committed to the repair or restoration of
the Collateral shall be used to prepay the Indebtedness.
INSURANCE RESERVES. Lender may require Grantor to maintain with Lender
reserves for payment of insurance premiums, which reserves shall be created
by monthly payments from Grantor of a sum estimated by Lender to be
sufficient to produce, at least fifteen (15) days before the premium due
date, amounts at least equal to the insurance premiums to be paid. If
fifteen (15) days before payment is due, the reserve funds are
insufficient, Grantor shall upon demand pay any deficiency to Lender. The
reserve funds shall be held by Lender as a general deposit and shall
constitute a non-interest-bearing account which Lender may satisfy by
payment of the insurance premiums required to be paid by Grantor as they
become due. Lender does not hold the reserve funds in trust for Grantor,
and Lender is not the agent of Grantor for payment of the insurance
premiums required to be paid by Grantor. The responsibility for the payment
of premiums shall remain Grantor's sole responsibility.
INSURANCE REPORTS. Grantor, upon request of Lender, shall furnish to Lender
reports on each existing policy of insurance showing such information as
Lender may reasonably request including the following: (1) the name of the
insurer; (2) the risks insured; (3) the amount of the policy; (4) the
property insured; (5) the then current value on the basis of which
insurance has been obtained and the manner of determining that value; and
(6) the expiration date of the policy. In addition, Grantor shall upon
request by Lender (however not more often than annually) have an
independent appraiser satisfactory to Lender determine, as applicable, the
cash value or replacement cost of the Collateral.
PRIOR ENCUMBRANCES. To the extent applicable, Grantor shall fully and
timely perform any and all of Grantor's obligations under any prior
Encumbrances affecting the Collateral. Without limiting the foregoing,
Grantor shall not commit or permit to exist any breach of or default under
any such prior Encumbrances. Grantor shall further promptly notify Lender
in writing upon the occurrence of any event or circumstances that would, or
that might, result in a breach of or default under any such prior
Encumbrance. Grantor shall further not modify or extend any of the terms of
any prior Encumbrance or any indebtedness secured thereby, or request or
obtain any additional loans or other extensions of credit from any third
party creditor or creditors whenever such additional loan advances or other
extensions of credit may be directly or indirectly secured, whether by
cross-collateralization or otherwise, by the Collateral, or any part or
parts thereof, with possible preference and priority over Lender's security
interest. Grantor additionally agrees to obtain, upon Lender's request, and
in form and substance as may then be satisfactory to Lender, appropriate
waivers and subordinations of any lessor's liens or privileges, vendor's
liens or privileges, purchase money security interests, and any other
Encumbrances that may affect the Collateral at any time.
FUTURE ENCUMBRANCES. Grantor shall not, without the prior written consent
of Lender, grant any Encumbrance that may affect the Collateral, or any
part or parts thereof, nor shall Grantor permit or consent to any
Encumbrance attaching to or being filed against any of the Collateral in
favor of anyone other than Lender. Grantor shall further promptly pay when
due all statements and charges of mechanics, materialmen, laborers and
others incurred in connection with the alteration, improvement, repair and
maintenance of the Collateral, or otherwise furnish appropriate security or
bond, so that no future Encumbrance amy ever attach to or be filed against
any Collateral. In the event that the Collateral or any part or parts
thereof is and/or may be located in and/or on leased premises, Grantor
shall promptly pay the full amount of such rental or lease payments
whenever the same shall be due so that no lessor's lien or privilege may
ever attach to or affect any of the Collateral with possible preference and
priority over the lien of this Agreement. In the event that any of the
Collateral is purchased or otherwise acquired by Grantor on a credit or
deferred payment sales basis, Grantor shall promptly pay the full amount of
the purchase or acquisition price of such Collateral so that no vendor's
lien or privilege, or purchase money security interest, may ever attach to
or be asserted against any of the Collateral with possible preference and
priority over the lien of this agreement. Grantor additionally agrees to
obtain, upon request by Lender, and in form and substance as may then be
satisfactory to Lender, appropriate waivers and/or subordinations of any
lessor's liens or privileges, vendor's liens or privileges, purchase money
security interests, and any other Encumbrances that may affect the
Collateral at any time.
As long as this Agreement remains in effect, Grantor will not permit any
levy, attachment or restraint to be made affecting any of the Collateral,
or permit any notice of lien to be filed with respect to the Collateral or
any part or parts thereof, or permit any receiver, trustee, custodian or
assignee for the benefit of creditors to be appointed to take possession of
any of the Collateral. Notwithstanding the foregoing, Grantor may, at its
sole expense, contest in good faith by appropriate proceedings the validity
or amount of any levy, attachment, restraint or lien filed against or
affecting the Collateral, or any part or parts thereof; provided that (1)
Grantor notifies Lender in advance of Grantor's intent to contest such a
levy, attachment, restraint or lien, and (2) Grantor provides additional
security to Lender, in form and amount satisfactory to Lender.
NOTICE OF ENCUMBRANCES. Grantor shall immediately notify Lender in writing
upon the filing of any attachment, lien, judicial process, claim, or other
Encumbrance. Grantor additionally agrees to notify Lender immediately in
writing upon the occurrence of any default, or event that with the passage
of time, failure to cure, or giving of notice, might result in a default
under any of Grantor's obligations that may be secured by any presently
existing or future Encumbrance, or that might result in an Encumbrance
affecting the Collateral, or should any of the Collateral be seized or
attached or levied upon, or threatened by seizure or attachment of levy, by
any person other than Lender.
BOOKS AND RECORDS. Grantor will keep proper books and records with regard
to Grantor's business activities and the Collateral in which a security
interest is granted hereunder, in accordance with GAAP, applied on a
consistent basis throughout, which books and records shall at all
reasonable times be open to inspection and copying by Lender or Lender's
designated agents. Lender shall also have the right to inspect Grantor's
books and records, and to discuss Grantor's affairs and finances with
Grantor's officers and representatives, at such reasonable times as Lender
may designates.
FINANCING STATEMENTS. Grantor authorizes Lender to file a UCC-1 financing
statement, or alternatively, a copy of this Agreement to perfect Lender's
security interest. At Lender's request, Grantor additionally agrees to sign
all other documents that are necessary to perfect, protect, and continue
Lender's security interest in the Property. Grantor will pay all filing
fees, title transfer fees, and other fees and costs involved unless
prohibited by law or unless Lender is required by law to pay such fees and
costs. Grantor irrevocably appoints Lender to execute financing statements
and documents of title in Grantor's name and to execute all documents
necessary to transfer title if there is a default. Lender may file a copy
of this Agreement as a financing statement. If Grantor changes Grantor's
name or address, or the name or address of any person granting a security
interest under this Agreement changes, Grantor will promptly notify the
Lender of such change.
GRANTOR'S RIGHT TO POSSESSION. Until default, Grantor may have possession of
the tangible personal property and beneficial use of all the Collateral and may
use it in any lawful manner not inconsistent with this Agreement or the Related
Documents, provided that Grantor's right to possession and beneficial use shall
not apply to any Collateral where possession of the Collateral by Lender is
required by law to perfect Lender's security interest in such Collateral. If
Lender at any time has possession of any Collateral, whether before or after
an Event of Default, Lender shall be deemed to have exercised reasonable care
in the custody and preservation of the Collateral if Lender takes such action
for that purpose as Grantor shall request or as Lender, in Lender's sole
discretion, shall deem appropriate under the circumstances, but failure to
honor any request by Grantor shall not of itself be deemed to be a failure to
exercise reasonable care. Lender shall not be required to take any steps
necessary to preserve any rights in the Collateral against prior parties, nor
to protect, preserve or maintain any security interest given to secure the
indebtedness.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents, Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Collateral and paying all
costs for insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note, or the maximum rate permitted by
law, whichever is less, from the date incurred or paid by Lender to the date of
repayment by Grantor. All such expenses will become a part of the indebtedness
and, at Lender's option, will (A) be payable on demand; (B) be added to the
balance of the Note and be apportioned among and be payable with any
installment payments to become due during either (1) the term of any applicable
insurance policy; or (2) the remaining term of the Note; or (C) be treated as a
balloon payment which will be due and payable at the Note's maturity. The
Agreement also will secure payment of these amounts. Such right shall be in
addition to all other rights and remedies to which Lender may be entitled upon
Default.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
PAYMENT DEFAULT. Grantor fails to make any payment when due under the
indebtedness.
OTHER DEFAULTS. Grantor fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement or in
any of the Related Documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement between
Lender and Grantor.
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower or any Grantor default
under any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Grantor's property or
COMMERCIAL SECURITY AGREEMENT
(CONTINUED) PAGE 4
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Grantor's or any Grantor's ability to repay the Indebtedness or perform
their respective obligations under this Agreement or any of the Related
Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Grantor or on Grantor's behalf, or made by
Guarantor, or any other guarantor, endorser, surety, or accommodation
party, under this Agreement or the Related Documents in connection with
the obtaining of the indebtedness evidenced by the Note or any security
document directly or indirectly securing repayment of the Note is false
or misleading in any material respect, either now or at the time made
or furnished or becomes false or misleading at any time thereafter.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of
any collateral document to create a valid and perfected security
interest or lien) at any time and for any reason.
INSOLVENCY. The dissolution or termination of Grantor's existence as a
going business, the insolvency of Grantor, the appointment of a
receiver for any part of Grantor's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against
Grantor.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Grantor or by any
governmental agency against any collateral securing the indebtedness.
This includes a garnishment of any of Grantor's accounts, including
deposit accounts, with Lender. However, this Event of Default shall not
apply if there is a good faith dispute by Grantor as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Grantor gives Lender written notice of
the creditor or forfeiture proceeding and deposits with Lender monies
or a surety bond for the creditor or forfeiture proceeding, in an
amount determined by Lender, in its sole discretion, as being an
adequate reserve or bond for the dispute.
EXECUTION; ATTACHMENT. Any execution or attachment is levied against
the Collateral, and such execution or attachment is not set aside,
discharged or stayed within thirty (30) days after the same is levied.
CHANGE IN ZONING OR PUBLIC RESTRICTION. Any change in any zoning
ordinance or regulation or any other public restriction is enacted,
adopted or implemented, that limits or defines the uses which may be
made of the Collateral such that the present or intended use of the
Collateral, as specified in the Related Documents, would be in
violation of such zoning ordinance or regulation or public restriction,
as changed.
DEFAULT UNDER OTHER LIEN DOCUMENTS. A default occurs under any other
mortgage, deed of trust or security agreement covering all or any
portion of the Collateral.
JUDGMENT. Unless adequately covered by insurance in the opinion of
Lender, the entry of a final judgment for the payment of money
involving more than ten thousand dollars ($10,000.00) against Grantor
and the failure by Grantor to discharge the same, or cause it to be
discharged, or bonded off to Lender's satisfaction, within thirty (30)
days from the date of the order, decree or process under which or
pursuant to which such judgment was entered.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to Guarantor, or any other guarantor, endorser, surety, or
accommodation party of any of the Indebtedness or Guarantor, or any
other guarantor, endorser, surety, or accommodation party dies or
becomes incompetent or revokes or disputes the validity of, or
liability under, any Guaranty of the Indebtedness.
ADVERSE CHANGE. A material adverse change occurs in Grantor's financial
condition, or Lender believes the prospect of payment or performance of
the Indebtedness is impaired.
INSECURITY. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereafter, Lender shall have all the rights of a secured
party under the Alabama Uniform Commercial Code. In addition and without
limitation, Lender may exercise any one or more of the following rights and
remedies:
ACCELERATE INDEBTEDNESS. Lender may declare the entire indebtedness,
including any prepayment penalty which Grantor would be required to
pay, immediately due and payable, without notice of any kind to
Grantor.
ASSEMBLE COLLATERAL. Lender may require Grantor to deliver to Lender
all or any portion of the Collateral and any and all certificates of
title and other documents relating to the Collateral. Lender may
require Grantor to assemble the Collateral and make it available to
Lender at a place to be designated by Lender. Lender also shall have
full power to enter upon the property of Grantor to take possession of
and remove the Collateral. If the Collateral contains other goods not
covered by this Agreement at the time of repossession, Grantor agrees
Lender may take such other goods, provided that Lender makes reasonable
efforts to return them to Grantor after repossession.
SELL THE COLLATERAL. Lender shall have full power to sell, lease,
transfer, or otherwise deal with the Collateral or proceeds thereof in
Lender's own name or that of Grantor. Lender may sell the Collateral at
public auction or private sale. Unless the Collateral threatens to
decline speedily in value or is of a type customarily sold on a
recognized market, Lender will give Grantor, and other persons as
required by law, reasonable notice of the time and place of any public
sale, or the time after which any private sale or any other disposition
of the Collateral is to be made. However, no notice need be provided to
any person who, after Event of Default occurs, enters into and
authenticates an agreement waiving that person's right to notification
of sale. The requirements of reasonable notice shall be met if such
notice is given at least ten (10) days before the time of the sale or
disposition. All expenses relating to the disposition of the
Collateral, including without limitation the expenses of retaking,
holding, insuring, preparing for sale and selling the Collateral, shall
become a part of the Indebtedness secured by this Agreement and shall
be payable on demand, with interest at the Note rate from date of
expenditure until repaid.
APPOINT RECEIVER. Lender shall have the right to have a receiver
appointed to take possession of all or any part of the Collateral, with
the power to protect and preserve the Collateral, to operate the
Collateral preceding foreclosure or sale, and to collect the Rents from
the Collateral and apply the proceeds, over and above the cost of the
receivership, against the indebtedness. The receiver may serve without
bond if permitted by law. Lender's right to the appointment of a
receiver shall exist whether or not the apparent value of the
Collateral exceeds the Indebtedness by a substantial amount. Employment
by Lender shall not disqualify a person from serving as a receiver.
COLLECT REVENUES, APPLY ACCOUNTS. Lender, either itself or through a
receiver, may collect the payments, rents, income, and revenues from
the Collateral. Lender may at any time in Lender's discretion transfer
any Collateral into Lender's own name or that of Lender's nominee and
receive the payments, rents, income, and revenues therefrom and hold
the same as security for the Indebtedness or apply it to payment of the
Indebtedness in such order of preference as Lender may determine.
Insofar as the Collateral consists of accounts, general intangibles,
insurance policies, instruments, chattel paper, choses in action, or
similar property, Lender may demand, collect, receipt for, settle,
compromise, adjust, sue for, foreclose, or realize on the Collateral
as Lender may determine, whether or not Indebtedness or Collateral is
then due. For these purposes, Lender may, on behalf of and in the name
of Grantor, receive, open and dispose of mail addressed to Grantor;
change any address to which mail and payments are to be sent; and
endorse notes, checks, drafts, money orders, documents of title,
instruments and items pertaining to payment, shipment, or storage of
any Collateral. To facilitate collection, Lender may notify account
debtors and obligors on any Collateral to make payments directly to
Lender.
OBTAIN DEFICIENCY. If Lender chooses to sell any or all of the
Collateral, Lender may obtain a judgment against Grantor for any
deficiency remaining on the Indebtedness due to Lender after
application of all amounts received from the exercise of the rights
provided in this Agreement. Grantor shall be liable for a deficiency
even if the transaction described in this subsection is a sale of
accounts or chattel paper.
OTHER RIGHTS AND REMEDIES. Lender shall have all the rights and
remedies of a secured creditor under the provisions of the Uniform
Commercial Code, as may be amended from time to time. In addition,
Lender shall have and may exercise any or all other rights end remedies
it may have available at law, in equity, or otherwise.
ELECTION OF REMEDIES. Except as may be prohibited by applicable law,
all of Lender's rights and remedies, whether evidenced by this
Agreement, the Related Documents, or by any other writing, shall be
cumulative and may be exercised singularly or concurrently. Election by
Lender to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to
perform an obligation or Grantor under this Agreement, after Grantor's
failure to perform, shall not affect Lender's right to declare a
default and exercise its remedies.
NON-LIABILITY OF LENDER. The relationship between Borrower and Lender created by
this Agreement is strictly a debtor and creditor relationship and not fiduciary
in nature, nor is the relationship to be construed as creating any partnership
or joint venture between Lender and Borrower. Borrower is exercising Borrower's
own judgment with respect to Borrower's business. All information supplied to
Lender is for Lender's protection only and no other party is entitled to rely on
such information. There is no duty for Lender to review, inspect, supervise or
inform Borrower of any matter with respect to Borrower's business. Lender and
Borrower intend that Lender may reasonably rely on all information supplied by
Borrower and any investigation or failure to investigate will not diminish
Lender's right to so rely.
ADDITIONAL EVENTS OF DEFAULT. Notwithstanding any other provisions herein to the
contrary, each of the following also shall be an Event of Default hereunder:
(1) If the Borrower is an LLC, any change in the ownership of twenty-five
percent (25%) or more of the membership interests in Borrower.
COMMERCIAL SECURITY AGREEMENT
(CONTINUED) PAGE 5
===============================================================================
(ii) Any material adverse change in the financial condition of any
guarantor.
ACCOUNTS. Notwithstanding any other provisions of this Agreement to the
contrary, the word " Account" also includes the meaning provided in the Uniform
Commercial Code, as amended from time to time.
NO ASSIGNMENT BY GRANTOR. Notwithstanding any other provisions of this Agreement
to the contrary, Grantor agrees not to assign any of Grantor's rights or
obligations under this Agreement.
AUTHENTICATED DEMANDS AND REQUESTS. If Grantor makes an authenticated demand or
a request for an accounting, a request regarding the Collateral, a request
regarding a statement of Grantor's account or a request for a termination
statement under the Uniform Commercial Code, Grantor agrees to address the
demand or request to Lender at the following address: Compass Bank Loan Research
Dept., P. 0. Box 11830, Birmingham, Alabama 35202, Grantor agrees that, to the
extent permitted by applicable law, Lender has no duty or obligation to respond
to the demand or request until Lender receives it or notice of it at this
address.
JURISDICTION. Any legal action or proceeding brought by Lender or Borrower
against the other arising out of or relating to the loan evidenced by this Note
(a "Proceeding") shall be instituted in the federal court for or the state court
sitting in the county where Lender's office that made this loan is located. With
respect to any Proceeding, each Borrower, to the fullest extent permitted by
law; (i) waives any objections that Borrower may now or hereafter have based on
venue and/or forum non conveniens of any Proceeding in such court; and (ii)
irrevocably submits to the jurisdiction of any such court in any Proceeding.
Notwithstanding anything to the contrary herein, Lander may commence legal
proceedings or otherwise proceed against Borrower in any other jurisdiction if
determined by Lender to be necessary in order to fully enforce or exercise any
right or remedy of Lander relating to this loan including without limitation
realization upon Collateral that secures this loan.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment
to this Agreement shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration
or amendment.
ATTORNEYS' FEES; EXPENSES. Grantor agrees to pay upon demand all of
Lender's costs end expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce
this Agreement, and Grantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and
legal expenses whether or not there is a lawsuit, including attorneys'
fees and legal expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Grantor also shall pay
all court costs and such additional fees as may be directed by the
court.
CAPTION HEADINGS. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or define
the provisions of this Agreement.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF
ALABAMA. THIS AGREEMENT HAS BEEN ACCEPTED BY LENDER IN THE STATE OF
ALABAMA.
NON-LIABILITY OF LENDER. The relationship between Grantor and Lender
created by this Agreement is strictly a debtor and creditor
relationship and not fiduciary in nature, nor is the relationship to be
construed as creating any partnership or joint venture between Lender
and Grantor. Grantor is exercising Grantor's own judgment with respect
to Grantor's business. All information supplied to Lender is for
Lender's protection only and no other party is entitled to rely on such
information. There is no duty for Lender to review, inspect, supervise
or inform Grantor of any matter with respect to Grantor's business.
Lender and Grantor intend that Lender may reasonably rely on all
information supplied by Grantor to Lender, together with all
representations and warranties given by Grantor to Lender, without
investigation or confirmation by Lender and that any investigation or
failure to investigate will not diminish Lender's right to so rely.
NOTICE OF LENDER'S BREACH. Grantor must notify Lender in writing of any
breach of this Agreement or the Related Documents by Lender and any
other claim, cause of action or offset against Lender within thirty
(30) days after the occurrence of such breach or after the accrual of
such claim, cause of action or offset. Grantor waives any claim, cause
of action or offset for which notice is not given in accordance with
this paragraph. Lender is entitled to rely on any failure to give such
notice.
INDEMNIFICATION OF LENDER. Grantor agrees to indemnify, to defend and
to save and hold Lender harmless from any and all claims, suits,
obligations, damages, losses, costs and expenses (including, without
limitation, Lender's attorneys' fees), demands, liabilities,
penalties, fines and forfeitures of any nature whatsoever that may be
asserted against or incurred by Lender, its officers, directors,
employees, and agents arising out of, relating to, or in any manner
occasioned by this Agreement and the exercise of the rights and
remedies granted Lender under this, as well as by: (1) the ownership,
use, operation, construction, renovation, demolition, preservation,
management, repair, condition, or maintenance of any part of the
Collateral; (2) the exercise of any of Grantor's rights collaterally
assigned and pledged to Lender hereunder; (3) any failure of Grantor to
perform any of its obligations hereunder; and/or (4) any failure of
Grantor to comply with the environmental and ERISA obligations,
representations and warranties set forth herein. The foregoing
indemnity provisions shall survive the cancellation of this Agreement
as to all matters arising or accruing prior to such cancellation and
the foregoing Indemnity shall survive in the event that Lender elects
to exercise any of the remedies as provided under this Agreement
following default hereunder. Grantor's indemnity obligations under this
section shall not in any way be affected by the presence or absence of
covering insurance, or by the amount of such insurance or by the
failure or refusal of any insurance carrier to perform any obligation
on Its pan under any insurance policy or policies affecting the
Collateral and/or Grantor's business activities. Should any claim,
action or proceeding be made or brought against Lender by reason of any
event as to which Grantor's indemnification obligations apply, then,
upon Lender's demand, Grantor, at its sole cost and expense, shall
defend such claim, action or proceeding in Grantor's name, if
necessary, by the attorneys for Grantor's insurance carrier (if such
claim, action or proceeding is covered by insurance), or otherwise by
such attorneys as Lender shall approve. Lender may also engage its own
attorneys at its reasonable discretion to defend Grantor and to assist
in its defense and Grantor agrees to pay the fees end disbursements of
such attorneys.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any
rights under this Agreement unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Agreement shall
not prejudice or constitute a waiver to Lender's right otherwise to
demand strict compliance with that provision or any other provision of
this Agreement. No prior waiver by Lender, nor any course of dealing
between Lender and Grantor, shall constitute a waiver of any of
Lender's rights or of any of Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
NOTICES. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law),
when deposited with a nationally recognized overnight courier, or, if
mailed, when deposited in the United States mail, as first class,
certified or registered mail postage prepaid, directed to the addresses
shown near the beginning of this Agreement. Any party may change its
address for notices under this Agreement by giving formal written
notice to the other parties, specifying that the purpose of the notice
is to change the party's address. For notice purposes, Grantor agrees
to keep Lender informed at all times of Grantor's current address.
Unless otherwise provided or required by law, if there is more than one
Grantor, any notice given by Lender to any Grantor is deemed to be
notice given to all Grantors.
POWER OF ATTORNEY. Grantor hereby appoints Lender as Grantor's
irrevocable attorney-in-fact for the purpose of executing any documents
necessary to perfect, amend, or to continue the security interest
granted in this Agreement or to demand termination of filings of other
secured parties. Lender may at any time, and without further
authorization from Grantor, file a carbon, photographic or other
reproduction of any financing statement or of this Agreement for use as
a financing statement. Grantor will reimburse Lender for all expenses
for the perfection and the continuation of the perfection of Lender's
security interest in the Collateral.
SEVERABILITY. If a court of competent jurisdiction finds any provision
of this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision
illegal, invalid, or unenforceable as to any other circumstance. If
feasible, the offending provision shall be considered modified so that
it becomes legal, valid and enforceable. If the offending provision
cannot be so modified, it shall be considered deleted from this
Agreement. Unless otherwise required by law, the illegality,
invalidity, or unenforceability of any provision of this Agreement
shall not affect the legality, validity or enforceability of any other
provision of this Agreement.
SOLE DISCRETION OF LENDER. Whenever Lender's consent or approval is
required under this Agreement, the decision as to whether or not to
consent or approve shall be in the sole and exclusive discretion of
Lender and Lender's decision shall be final and conclusive.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this
Agreement on transfer of Grantor's interest, this Agreement shall be
binding upon and inure to the benefit of the parties, their successors
and assigns. If ownership of the Collateral becomes vested in a person
other than Grantor, Lender, without notice to Grantor, may deal with
Grantor's successors with reference to this Agreement and the
Indebtedness without releasing Grantor from the obligations of this
Agreement or liability under the Indebtedness.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations,
warranties, and agreements made by Grantor in this Agreement shall
COMMERCIAL SECURITY AGREEMENT
(CONTINUED) PAGE 6
===============================================================================
survive the execution and delivery of this Agreement, shall be
continuing in nature, and shall remain in full force and effect until
such time as Grantor's Indebtedness shall be paid in full.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of
this Agreement.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall moon amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code:
AGREEMENT. The word "Agreement" means this Commercial Security
Agreement, as this Commercial Security Agreement may be amended or
modified from time to time, together with all exhibits and schedules
attached to this Commercial Security Agreement from time to time.
BORROWER. The word "Borrower" means WELBORN TRANSPORT, INC, and all
other persons and entities signing the Note in whatever capacity.
COLLATERAL. The word "Collateral" means all of Grantor's right, title
and interest in and to all the Collateral as described in the
Collateral Description section of this Agreement.
DEFAULT. The word "Default" means the Default set forth in this
Agreement in the section titled "Default".
ENCUMBRANCE. The word "Encumbrance" means any and all presently
existing or future mortgages, liens, privileges and other contractual
and statutory security interests and rights, of every nature and kind,
whether in admiralty, at law, or in equity, that now and/or in the
future may affect the Collateral or any part or parts thereof.
ENVIRONMENTAL LAWS. The words "Environmental Laws" mean any and all
state, federal and local statutes, regulations and ordinances relating
to the protection of human health or the environment including without
limitation the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq,
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1988,
Pub. L. No, 99-499 ("SARA"), the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable
state or federal laws, rules, or regulations adopted pursuant thereto.
EVENT OF DEFAULT. The words "Event of Default" mean individually,
collectively, and interchangeably any of the events of default set
forth in this Agreement in the default section of this Agreement.
GAAP. The word "GAAP" means generally accepted accounting principles.
GRANTOR. The word "Grantor" means WELBORN TRANSPORT, INC.
GUARANTOR. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Indebtedness, and, in each
case, Grantor's successors, assigns, heirs, personal representatives,
executors and administrators of any guarantor, surety, or accommodation
party.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor, or any
other guarantor, endorser, surety, or accommodation party to Lender,
including without limitation a guaranty of all or part of the Note.
HAZARDOUS SUBSTANCES. The words "Hazardous Substances" mean materials
that, because of their quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential
hazard to human health or the environment when improperly used,
treated, stored, disposed of, generated, manufactured, transported or
otherwise handled. The words "Hazardous Substances" are used in their
very broadest sense and include without limitation any and all
hazardous or toxic substances, materials or waste as defined by or
listed under the Environmental Laws. The term "Hazardous Substances"
also includes, without limitation, petroleum and petroleum by-products
or any fraction thereof and asbestos.
INDEBTEDNESS. The word "indebtedness" means the indebtedness evidenced
by the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Grantor is responsible under this Agreement or under any of the Related
Documents.
LENDER. The word "Lender" means Compass Bank, its successors and
assigns.
NOTE. The word "Note" means the note or credit agreement executed by
Borrower(s) in the principal amount of $382,080.00, dated JANUARY 16,
2003, together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the note or
agreement.
PROPERTY. The word "Property" means all of Grantor's right, title and
interest in and to all the Property as described in the "Collateral
Description" section of this Agreement.
RELATED DOCUMENT. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other Instruments, agreements and
documents, whether now or hereafter existing, executed in connection
with the Indebtedness.
GRANTOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY
AGREEMENT AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED JANUARY 16, 2003.
THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND
SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
GRANTOR;
WELBORN TRANSPORT INC.
By: /s/ Richard Bailey (SEAL)
----------------------------------------------
Richard Bailey, CFO of WELBORN TRANSPORT, INC.
===============================================================================
DISBURSEMENT REQUEST AND AUTHORIZATION
PRINCIPAL LOAN DATE MATURITY LOAN NO. CALL / CALL ACCOUNT OFFICER INITIALS
--------- --------- -------- -------- ----------- ------- ------- --------
$382,060.00 01-16-2003 02-01-2008 ***
References in the shaded area are for Lender's use only and do not limit
the applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to
text length limitations.
BORROWER: WELBORN TRANSPORT, INC LENDER: COMPASS BANK
P.O. BOX 020968 ALABAMA PROCESSING CENTER
TUSCALOOSA, AL 35403 701 SOUTH 32ND STREET
BIRMINGHAM, AL 35233
(800) 239-1996
===============================================================================
PRIMARY PURPOSE OF LOAN, The primary purpose of the loan is for:
[ ] Personal, Family, or Household Purposes or Personal
Investment.
[X] Business (Including Real Estate Investment).
SPECIFIC PURPOSE. The specific purpose of this loan is: TO PURCHASE TRACTORS.
DISBURSEMENT INSTRUCTIONS. Please disburse the loan proceeds of $382,080.00 as
follows:
===============================================================================
AMOUNT FINANCED ITEMIZATION
AMOUNT PAID TO BORROWER DIRECTLY:
$381,810.00 LENDER'S CHECK # $381,810.00
OTHER CHARGES FINANCED:
$250.00 LOAN PROCESSING FEE $ 250.00
-----------
NOTE PRINCIPAL: $382,060.00
PREPAID FINANCE CHARGES: $ 0.00
IN CASH: $0,00
AMOUNT FINANCED: $382,060.00
===============================================================================
AMOUNT FINANCED ITEMIZATION
CHARGES PAID IN CASH. Borrower has paid or will pay in cash as agreed the
following charges:
Prepaid Finance Charges Paid In Cash: $0.00
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, BORROWER REPRESENTS AND
WARRANTS TO LENDER THAT THE INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND
THAT THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN BORROWER'S FINANCIAL CONDITION
AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO LENDER. THIS
AUTHORIZATION IS DATED JANUARY 16, 2003,
THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND
SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
BORROWER:
WELBORN TRANSPORT, INC.
By: /s/ Richard Bailey (SEAL)
-----------------------------------------------
Richard Bailey, CFO of WELBORN TRANSPORT, INC.
===============================================================================
CORPORATE RESOLUTION TO BORROW / GRANT COLLATERAL
<Table>
- ----------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call/Call Account Officer Initials
$382,060.00 01-16-2003 02-01-2008 ***
- ----------------------------------------------------------------------------------------------------
</Table>
References in the shaded area are for Lender's use only and do not limit
the applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to
text length limitations.
- -------------------------------------------------------------------------------
CORPORATION: WELBORN TRANSPORT, INC LENDER: COMPASS BANK
P.O. BOX 020968 ALABAMA PROCESSING CENTER
TUSCALOOSA, AL 35403 701 SOUTH 32ND STREET
BIRMINGHAM, AL 35233
(800) 239-1996
WE, THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE CORPORATION'S EXISTENCE. The complete and correct name of the Corporation is
WELBORN TRANSPORT, INC ("Corporation"). The Corporation is a corporation for
profit which is, and at all times shall be, duly organized, validly existing,
and in good standing under and by virtue of the laws of the State of Alabama.
The Corporation is duly authorized to transact business in all other states in
which the Corporation is doing business, having obtained all necessary filings,
governmental licenses and approvals for each state in which the Corporation is
doing business. Specifically, the Corporation is, and at all times shall be,
duly qualified as a foreign corporation in all states in which the failure to so
qualify would have a material adverse effect on its business or financial
condition. The Corporation has the full power and authority to own its
properties and to transact the business in which it is presently engaged or
presently proposes to engage. The Corporation maintains an office at P.O. BOX
020968, TUSCALOOSA, AL 35403. Unless the Corporation has designated otherwise in
writing, the principal office is the office at which the Corporation keeps its
books and records. The Corporation will notify Lender prior to any change in
the location of the Corporation's state of organization or any change in the
Corporation's name, The Corporation shall do all things necessary to preserve
and to keep in full force and effect its existence, rights and privileges, and
shall comply with all regulations, rules, ordinances, statutes, orders and
decrees of any governmental or quasi-governmental authority or court applicable
to the Corporation and the Corporation's business activities.
RESOLUTIONS ADOPTED. At a meeting of the Directors of the Corporation, or if the
Corporation is a close corporation having no Board of Directors then at a
meeting of the Corporation's shareholders, duly called and held on ________, at
which a quorum was present and voting, or by other duly authorized action in
lieu of a meeting, the resolutions set forth in this Resolution were adopted.
OFFICER. The following named person is an officer of WELBORN TRANSPORT, INC:
NAMES TITLES AUTHORIZED ACTUAL SIGNATURES
- ----- ------ ---------- -----------------
RICHARD BAILEY Y /s/ Richard Bailey
ACTIONS AUTHORIZED. The authorized person listed above may enter into any
agreements of any nature with Lender, and those agreements will bind the
Corporation. Specifically, but without limitation, the authorized person is
authorized, empowered, and directed to do the following for and on behalf of the
Corporation:
BORROW MONEY. To borrow, as a cosigner or otherwise, from time to time
from Lender, on such terms as may be agreed upon between the
Corporation and Lender, such sum or sums of money as in his or her
judgment should be borrowed, without limitation.
EXECUTE NOTES. To execute, and deliver to Lender the promissory note or
notes, or other evidence of the Corporation's credit accommodations, on
Lender's forms, at such rates of interest and on such terms as may be
agreed upon, evidencing the sums of money so borrowed or any of the
Corporation's indebtedness to Lender, and also to execute and deliver
to Lender one or more renewals, extensions, modifications,
refinancings, consolidations, or substitutions for one or more to the
notes, any portion of the notes, or any other evidence of credit
accommodations.
GRANT SECURITY. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender any property now or hereafter
belonging to the Corporation or in which the Corporation now or
hereafter may have an interest, including without limitation all real
property and all personal property (tangible or intangible) of the
Corporation, as security for the payment of any loans or credit
accommodations so obtained, any promissory notes so executed (including
any amendments to or modifications, renewals, and extensions of such
promissory notes), or any other or further indebtedness of the
Corporation to Lender at any time owing, however the same may be
evidenced. Such property may be mortgaged, pledged, transferred,
endorsed, hypothecated or encumbered at the time such loans are
obtained or such indebtedness is incurred, or at any other time or
times, and may be either in addition to or in lieu of any property
theretofore mortgaged, pledged, transferred, endorsed, hypothecated or
encumbered.
EXECUTE SECURITY DOCUMENTS. To execute and deliver to Lender the forms
of mortgage, deed of trust, pledge agreement, hypothecation agreement,
and other security agreements and financing statements which Lender may
require and which shall evidence the terms and conditions under and
pursuant to which such liens and encumbrances, or any of them, are
given; and also to execute and deliver to Lender any other written
instruments, any chattel paper, or any other collateral, of any kind or
nature, which Lender may deem necessary or proper in connection with or
pertaining to the giving of the liens and encumbrances.
NEGOTIATE ITEMS. To draw, endorse, and discount with Lender all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness
payable to or belonging to the Corporation or in which the Corporation
may have an interest, and either to receive cash for the name or to
cause such proceeds to be credited to the Corporation's account with
Lender, or to cause such other disposition of the proceeds derived
therefrom as he or she may deem advisable.
FURTHER ACTS. In the case of lines of credit, to designate additional
or alternate individuals as being authorized to request advances under
such lines, and in all cases, to do and perform such other acts and
things, to pay any and all fees and costs, and to execute and deliver
such other documents and agreements as the officer may in his or her
discretion deem reasonably necessary or proper in order to carry into
effect the provisions of this Resolution.
ASSUMED BUSINESS NAMES. The Corporation has filed or recorded all documents or
filings required by law relating to all assumed business names used by the
Corporation. Excluding the name of the Corporation, the following is a complete
list of all assumed business names under which the Corporation does business:
None.
NOTICES TO LENDER. The Corporation will promptly notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (A) change in the Corporation's name; (B) change
in the Corporation's assumed business name(s); (C) change in the management of
the Corporation; (D) change in the authorization signer(s); (E) change in the
Corporation's principal office address; (F) change in the Corporation's state of
organization; (G) conversion of the Corporation to a new or different type of
business entity; or (H) change in any other aspect of the Corporation that
directly or indirectly relates to any agreements between the Corporation and
Lender. No change in the Corporation's name or state of organization will take
effect until after Lender has received notice.
OTHER ACTIONS. Open and maintain any safety deposit boxes, lockboxes and escrow,
savings, checking, depository, or other accounts with Lender; deposit in and to
such boxes and accounts any checks, drafts, notes, and other instruments and
funds payable to or belonging to the Company; withdraw any funds or draw, sign
and deliver in the name of the Company any check or draft against funds of the
Company in such boxes or accounts; and procure additional depository, funds
transfer and funds management services (including, but not limited to, facsimile
signature authorizations, wire transfer agreements, automated clearinghouse
agreements, and payroll deposit programs).
CERTIFICATION OF CORPORATE DOCUMENTS. I certify that the Articles of
Incorporation and Bylaws of the Company attached hereto are in full force and
effect and have not been amended, modified, replaced, or substituted in any
manner.
CERTIFICATION CONCERNING OFFICERS AND RESOLUTIONS. The officer named above is
duly elected, appointed, or employed by or for the Corporation as the case may
be, and occupies the position set opposite his or her respective name. This
Resolution now stands of record on the books of the Corporation, is in full
force and effect, and has not been modified or revoked in any manner whatsoever.
NO CORPORATE SEAL. The Corporation has no corporate seal, and therefore, no seal
is affixed to this Resolution.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Resolution and
performed prior to the passage of this Resolution are hereby ratified and
approved. This Resolution shall be continuing, shall remain in full force and
effect and Lender may rely on it until written notice of its revocation shall
have been delivered to and received by Lender at Lender's address shown above
(or such addresses as Lender may designate from time to time). Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
IN TESTIMONY WHEREOF. We have hereunto set our hand and attest that the
signature set opposite the name listed above is his or her genuine signature.
CORPORATE RESOLUTION TO BORROW/GRANT COLLATERAL
(CONTINUED) PAGE 2
================================================================================
We each have read all the provisions of this Resolution, and we each personally
and on behalf of the Corporation certify that all statements and representations
made in this Resolution are true and correct. This Corporate Resolution to
Borrow/Grant Collateral is dated__________________.
THIS RESOLUTION IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS RESOLUTION IS
AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO
LAW.
CERTIFIED TO AND ATTESTED BY:
By: /s/ Richard Bailey
-------------------------(Seal)
Authorized Signer for WELBORN
TRANSPORT, INC.
NOTE: If the officer signing this Resolution is designated by the foregoing
document as one of the officers authorized to act on the Corporation's behalf,
it is advisable to have this Resolution signed by at least one non-authorized
officer of the Corporation.
================================================================================
?????All Rights Reserved
CORPORATE RESOLUTION TO GRANT COLLATERAL
PRINCIPAL LOAN DATE MATURITY LOAN NO. CALL / CALL ACCOUNT OFFICER INITIALS
--------- --------- -------- -------- ----------- ---------- ------- --------
$382,080.00 01-16-2003 02-01-2008 ***
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to
text length limitations.
BORROWER: WELBORN TRANSPORT, INC LENDER: COMPASS BANK
P.O. BOX 020968 ALABAMA PROCESSING CENTER
TUSCALOOSA, AL 36403 701 SOUTH 32ND STREET
BIRMINGHAM, AL 35233
(800) 239-1996
CORPORATION: BOYD BROTHERS TRANSPORTATION CO., INC.
3275 HIGHWAY 30
CLAYTON, AL 36016-3003
===============================================================================
WE, THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE CORPORATION'S EXISTENCE. The complete and correct name of the Corporation is
BOYD BROTHERS TRANSPORTATION CO., INC. ("Corporation"). The Corporation is a
corporation for profit which is, and at all times shall be, duly organized,
validly existing, and in good standing under and by virtue of the laws of the
State of Alabama. The Corporation is duly authorized to transact business in all
other states in which the Corporation is doing business, having obtained all
necessary filings, governmental licenses and approvals for each state in which
the Corporation is doing business. Specifically, the Corporation is, and at all
times shall be, duly qualified as a foreign corporation in all states in which
the failure to so qualify would have a material adverse effect on its business
or financial condition. The Corporation has the full power and authority to own
its properties and to transact the business in which it is presently engaged or
presently proposes to engage. The Corporation maintains an office at 3275
HIGHWAY 30, CLAYTON, AL 36016-3003. Unless the Corporation has designated
otherwise in writing, the principal office is the office at which the
Corporation keeps its books and records. The Corporation will notify Lender
prior to any change in the location of the Corporation's state of organization
or any change in the Corporation's name. The Corporation shall do all things
necessary to preserve and to keep in full force and effect its existence, rights
and privileges, and shall comply with all regulations, rules, ordinances,
statutes, orders and decrees of any governmental or quasi-governmental authority
or court applicable to the Corporation and the Corporation's business
activities.
RESOLUTIONS ADOPTED. At a meeting of the Directors of the Corporation, or if the
Corporation is a close corporation having no Board of Directors then at a
meeting of the Corporation's shareholders, duly called and held
on__________________, at which a quorum was present and voting, or by other duly
authorized action in lieu of a meeting, the resolutions set forth in this
Resolution were adopted.
OFFICER. The following named person is an officer of BOYD BROTHERS
TRANSPORTATION CO., INC.:
NAMES TITLES AUTHORIZED ACTUAL SIGNATURES
- ----- ------ ---------- -----------------
RICHARD BAILEY Y /s/ Richard Bailey
ACTIONS AUTHORIZED. The authorized person listed above may enter into any
agreements of any nature with Lender, and those agreements will bind the
Corporation. Specifically, but without limitation, the authorized person is
authorized, empowered, and directed to do the following for and on behalf of the
Corporation:
GRANT SECURITY. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender any property now or hereafter
belonging to the Corporation or in which the Corporation now or
hereafter may have an interest, including without limitation all real
property and all personal property (tangible or intangible) of the
Corporation, as security for the payment of any loans, any promissory
notes, or any other or further indebtedness of WELBORN TRANSPORT, INC
to Lender at any time owing, however the same may be evidenced. Such
property may be mortgaged, pledged, transferred, endorsed, hypothecated
or encumbered at the time such loans are obtained or such indebtedness
is incurred, or at any other time or times and may be either in
addition to or in lieu of any property theretofore mortgaged, pledged,
transferred, endorsed, hypothecated, or encumbered. The provisions of
this Resolution authorizing or relating to the pledge, mortgage,
transfer, endorsement, hypothecation, granting of a security interest
in, or in any way encumbering, the assets of the Corporation shall
include, without limitation, doing so in order to lend collateral
security for the indebtedness, now or hereafter existing, and of any
nature whatsoever, of WELBORN TRANSPORT, INC. to Lender. The
Corporation has considered the value to itself of lending collateral
in support of such indebtedness, and the Corporation represents to
Lender that the Corporation is benefited by doing so.
EXECUTE SECURITY DOCUMENTS. To execute and deliver to Lender the forms
of mortgage, deed of trust, pledge agreement, hypothecation agreement,
and other security agreements and financing statements which Lender may
require and which shall evidence the terms and conditions under and
pursuant to which such liens and encumbrances, or any of them, are
given; and also to execute and deliver to Lender any other written
instruments, any chattel paper, or any other collateral, of any kind or
nature, which Lender may deem necessary or proper in connection with or
pertaining to the giving of the liens and encumbrances.
FURTHER ACTS. To do and perform such other acts and things and to
execute and deliver such other documents and agreements as the officer
may in his or her discretion deem reasonably necessary or proper in
order to carry into effect the provisions of this Resolution.
ASSUMED BUSINESS NAMES. The Corporation has filed or recorded all documents or
filings required by law relating to all assumed business names used by the
Corporation. Excluding the name of the Corporation, the following is a complete
list of all assumed business names under which the Corporation does business:
None.
NOTICES TO LENDER. The Corporation will promptly notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (A) change in the Corporation's name; (B) change
in the Corporation's assumed business name(s); (C) change in the management of
the Corporation; (D) change in the authorized signer(s); (E) change in the
Corporation's principal office address; (F) change in the Corporation's state of
organization; (G) conversion of the Corporation to a new or different type of
business entity; or (H) change in any other aspect of the Corporation that
directly or indirectly relates to any agreements between the Corporation and
Lender. No change in the Corporation's name or state of organization will take
effect until after Lender has received notice.
OTHER ACTIONS. Open and maintain any safety deposit boxes, lockboxes and escrow,
savings, checking, depository, or other accounts with Lender; deposit in and to
such boxes and accounts any checks, drafts, notes, and other instruments and
funds payable to or belonging to the Company; withdraw any funds or draw, sign
and deliver in the name of the Company any check or draft against funds of the
Company in such boxes or accounts; and procure additional depository, funds
transfer and funds management services (including, but not limited to, facsimile
signature authorizations, wire transfer agreements, automated clearinghouse
agreements, and payroll deposit programs).
CERTIFICATION OF CORPORATE DOCUMENTS. I certify that the Articles of
Incorporation and Bylaws of the Company attached hereto are in full force and
effect and have not been amended, modified, replaced, or substituted in any
manner.
CERTIFICATION CONCERNING OFFICERS AND RESOLUTIONS. The officer named above is
duly elected, appointed, or employed by or for the Corporation, as the case may
be, and occupies the position set opposite his or her respective name. This
Resolution now stands of record on the books of the Corporation, is in full
force and effect, and has not been modified or revoked in any manner whatsoever.
NO CORPORATE SEAL. The Corporation has no corporate seal, and therefore, no seal
is affixed to this Resolution.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Resolution and
performed prior to the passage of this Resolution are hereby ratified and
approved. This Resolution shall be continuing, shall remain in full force and
effect and Lender may rely on it until written notice of its revocation shall
have been delivered to and received by Lender at Lender's address shown above
(or such addresses as Lender may designate from time to time). Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
IN TESTIMONY WHEREOF. We have hereunto set our hand and attest that the
signature set opposite the name listed above is his or her genuine signature.
We each have read all the provisions of this Resolution, and we each personally
and on behalf of the Corporation certify that all statements and representations
made in this Resolution are true and correct. This Corporate Resolution to Grant
Collateral is dated _____________________.
THIS RESOLUTION IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS RESOLUTION IS
AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO
LAW.
CORPORATE RESOLUTION TO GRANT COLLATERAL
(CONTINUED) PAGE 2
================================================================================
CERTIFIED TO AND ATTESTED BY:
By: /s/ Richard Baily (Seal)
__________________________
Authorized Signer for BOYD
BROTHERS TRANSPORTATION
CO., INC.
NOTE: If the officer signing this Resolution is designated by the foregoing
document as one of the officers authorized to act on the Corporation's behalf,
it is advisable to have this Resolution signed by at least one non-authorized
officer of the Corporation.
================================================================================
CONTINUING GUARANTY
(Unlimited)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, the undersigned (hereinafter called "Guarantors"), jointly
and severally unconditionally guarantee and promise to pay to COMPASS BANK a
bank organized under the laws of the State of Alabama (hereinafter called
"Bank") or order in lawful money of the United States, any and all Indebtedness
of WELBORN TRANSPORT, INC. hereinafter called "Borrowers", whether one or more)
to Bank. The word "Indebtedness" is used herein in its most comprehensive sense
and includes any and all advances, debts, obligations and liabilities of
Borrowers or any one or more of them to Bank, heretofore, now, or hereafter
existing, made, incurred or created, whether voluntary or involuntary and
however arising, whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, not limited to, but including
principal, interest, cost of collection, attorney's fees and all other lawful
charges, and whether Borrowers may be liable individually or jointly with
others, or whether recovery upon such Indebtedness may be or hereafter become
barred by any statute of limitations, or whether such Indebtedness may be now
or hereafter become otherwise unenforceable. WITHOUT IN ANY MANNER LIMITED THE
FOREGOING DEFINITION OF INDEBTEDNESS, AND WITHOUT EXCLUDING ANY KIND OR TYPE OF
INDEBTEDNESS NOT SPECIFICALLY IDENTIFIED IN THIS SENTENCE, THE TERM
INDEBTEDNESS INCLUDES, BUT IS NOT LIMITED TO, ADVANCES, DEBTS, OBLIGATIONS AND
LIABILITIES ARISING FROM LOANS, LETTERS OF CREDIT, ACCOUNT OVERDRAFTS, HOWEVER
INCURRED, ELECTRONICALLY INITIATED TRANSACTIONS, WHETHER BY WIRE TRANSFER,
AUTOMATED CLEARINGHOUSE OR OTHERWISE, AND WHETHER INITIATED TELEPHONICALLY, BY
FACSIMILE, BY TRANSMISSION OVER THE INTERNET, OR OTHERWISE, TRANSACTIONS FOR
WHICH BANK SETTLES AN AMOUNT OR NEGOTIATES AN ITEM OR ORDER, TRANSACTIONS UNDER
ANY AGREEMENT PROVIDING FOR AN INTEREST RATE SWAP, FLOOR, COLLAR, OPTION OR
OTHER TRANSACTION THE PRINCIPAL PURPOSE OF WHICH IS TO TAKE INTO ACCOUNT THE
FLUCTUATION OF INTEREST RATES, AND ALL FEES AND CHARGES ASSOCIATED WITH ANY
ACCOUNT, LOAN OR OTHER SERVICE RECEIVED BY BORROWER FROM BANK.
The liability of Guarantors shall be unlimited and shall cover all
Indebtedness of Borrowers to Bank. This is a continuing guaranty relating to
any Indebtedness, including Indebtedness arising under successive transactions
which shall either continue Indebtedness or from time to time renew
Indebtedness after such Indebtedness has been satisfied. This Guaranty shall
remain in effect until Bank's written acknowledgement of Bank's receipt of
written notice of revocation by one or more Guarantors as to future
transactions, and even after Bank's receipt and acknowledgment of revocation,
this Guaranty shall remain effective as to Indebtedness then outstanding, and
as to all advances, extensions of credit, overdrafts, settlements, fundings or
other transactions made to or on behalf of Borrowers subsequent thereto pursuant
to any commitment, credit arrangement or agreement relating to any Indebtedness
in effect at the time of Bank's acknowledgment of revocation which commitment,
credit arrangement or agreement permits, provides for or obligates Bank to make
the advance, make the extension of credit, settle or fund any transaction or
negotiate any item or order, including any construction loan, line of credit,
letter of credit, agreement to negotiate or settle items or fund or settle
electronic transactions or any other document governing Borrowers'
transactions. A notice of revocation shall be effective only with respect to
those of the Guarantors (if more than one) as shall have given notice of
revocation as specified herein. Notwithstanding anything to the contrary
contained or implied herein or in any other document, this Guaranty may not be
revoked or terminated, other than with the prior written consent of the Bank,
except upon strict compliance with the conditions and requirements set forth in
this Section (2), and this Guaranty will not be revoked or terminated by any
action, event or circumstance, including payment in full of all of the
Indebtedness. In the event any sums or other things of value that are paid or
transferred to or otherwise received by the Bank are rescinded, recovered,
required to be returned, set aside, rendered void or otherwise adversely
affected in any legal proceeding or for any cause whatsoever, including under
any law, rule or regulation relative to bankruptcy, insolvency, fraudulent
transfers, preferences or other relief of debtors, then this Guaranty shall
continue to be effective or shall be revived and reinstated, as necessary in
order to give full effect to the Guarantors' liability hereunder, to the same
extent as if such payment, transfer and/or receipt had never occurred. This
Guaranty shall not release, modify, revoke or terminate any other guaranty
heretofore or hereafter executed by any of the Guarantors; nor shall any other
guaranty heretofore or hereafter executed by any Guarantor release, modify,
revoke or terminate this Guaranty unless the other guaranty specifically
refers to this Guaranty and the release, modification, revocation or
termination (as applicable) is accepted by Bank in writing.
The obligations of the Guarantors hereunder are joint and several, and
independent of the obligations of Borrowers, and a separate action or actions
may be brought and prosecuted against any one or more of the Guarantors whether
action is brought against Borrowers or any other Guarantor or whether any of
the Borrowers or other Guarantors are joined in any such action or actions.
It is the intent hereof that this obligation of Guarantors shall be
and remain unaffected (a) by the existence or non-existence, validity or
invalidity, of any pledge, assignment or conveyance given as security; or (b)
by any understanding or agreement that any other person, firm or corporation
was or is to execute this or any other guaranty, any notes, instruments,
contracts or agreements evidencing, creating or setting forth the terms of the
Indebtedness, or any part thereof, or any other document or instrument that was
or is to provide collateral for any Indebtedness; or (c) by resort on the part
of Bank, or failure of Bank to resort, to any other security or remedy for the
collection of the Indebtedness; or (d) by the death, bankruptcy, insolvency,
dissolution or incapacitation of any of the Guarantors, any of the Borrowers or
any other person, and in case of any death or bankruptcy, the failure of Bank
to file a claim against the deceased Guarantor's estate or against the
bankrupt's estate, or the failure of Bank otherwise to seek remedies as a
consequence of those events.
Each of the Guarantors authorizes Bank, without notice or demand and
without affecting any Guarantor's liability hereunder, from time to time to (a)
renew, compromise, extend, accelerate, restate, consolidate, replace, refinance
or otherwise change the time for payment of, or otherwise change the terms of,
the Indebtedness or any part thereof, including increasing or decreasing the
rate of interest or extending the maturity thereof; (b) take and
Page 1
hold security for the payment of this Guaranty or any of the Indebtedness
and/or exchange, modify, enforce, waive and release any such security; (c) apply
such security and direct the order or manner of sale thereof as Bank in its
discretion may determine; and/or (d) release or substitute any one or more of
the borrowers or other obligors, endorsers or guarantors of all or any part of
the Indebtedness (including, without limitation, any one or more of the
Guarantors).
Each of the Guarantors waives any right to require Bank (a) to proceed
against any one or more of the Borrowers or Guarantors; (b) to protect,
preserve, proceed against or exhaust any security held from Borrowers; or (c)
to pursue any other remedy in Bank's power whatsoever. Each of the Guarantors
waives any defense arising by reason of any disability or other defense of any
one or more of the Borrowers or Guarantors (including any defense based on or
arising out of the unenforceability of any part of the Indebtedness for any
cause whatsoever) or by reason of the cessation from any cause whatsoever of
the liability of any one or more of the Borrowers or Guarantors. Until all
Indebtedness shall have been paid in full, Guarantors shall not have any rights
of subrogation, reimbursement, contribution or indemnity or any right of
recourse to any assets or properties of any of the Borrowers or any of the
other Guarantors, and each of the Guarantors waives (i) all rights, if any, of
subrogation, reimbursement, contribution, indemnity and recourse, (ii) any
right to enforce any remedy which Bank now has or may hereafter have against
any one or more of the Borrowers or any other Guarantor and (iii) any benefit
of, and any right of recourse to or to participate in, any security now or
hereafter held by Bank or otherwise constituting collateral for any
Indebtedness. Each of the Guarantors waives all presentments, demands for
performance, notices of nonperformance, notice of acceleration, notice of
intent to accelerate, protests, notices of protest, notices of dishonor, and
notices of acceptance of this Guaranty and of the existence, creation, or
incurrence of new or additional Indebtedness, and waives any rights or defenses
based, in whole or in part, upon an offset by any one or more of the Borrowers
or Guarantors against any obligation or Indebtedness now or hereafter owed to
any of the Borrowers or any of the Guarantors (including to any Guarantor by
any Borrower). Each of the Guarantors waives the benefit of any statute of
limitations or other defenses affecting the Borrower's liability for the
Indebtedness or the enforcement thereof or such Guarantor's liability hereunder
or the enforcement thereof, and each of the Guarantors further agrees that any
payment by any of the Borrowers or other circumstances that operate to toll any
statute of limitations as to any one or more Borrowers shall operate to toll
the statute of limitations as to each of the Guarantors. Each of the Guarantors
waives any rights to exemption under the Constitution of the State of Alabama
or any other state as to any indebtedness or obligation created hereunder.
In addition to all liens upon, and rights of setoff against, money,
securities or other property of any one or more of the Guarantors given to Bank
by law, Bank shall have and hereby is granted a lien upon, security interest in
and a right of setoff against all money, securities and other property of each
of the Guarantors now or hereafter in the possession of or on deposit with
Bank, whether held in a general or special account or deposit, or for
safekeeping or otherwise; and every such lien, security interest and right of
setoff may be exercised without demand upon or notice to any of the Guarantors.
With respect to any deposit accounts maintained by any of the Guarantors at
Bank, the Guarantors agree and acknowledge that (i) Bank has and maintains
"control" of those deposit accounts within the meaning of Section 9-104(a)(i)
of the Uniform Commercial Code, and (ii) by virtue of the foregoing, Bank's
security interest in the deposit accounts is a perfected, first priority
security interest. No lien, security interest or right of setoff shall be
deemed to have been waived by any act or conduct on the part of Bank, or by any
failure to exercise such right of setoff or to enforce such lien or security
interest or by any delay in so doing, and every right of setoff and lien shall
continue in full force and effect until such right of setoff or lien
specifically is waived or released in a written instrument executed by Bank.
Any indebtedness of any Borrower to any Guarantor, whether now
existing, hereafter arising, secured or unsecured, and if secured, the security
for same, hereby is subordinated to the Indebtedness; and the subordinated
indebtedness, if Bank so requests, shall be collected, enforced and received by
the Guarantor as trustee for Bank and shall be paid over to Bank on account of
the Indebtedness without reducing or affecting in any manner the liability of
any Guarantor under this Guaranty.
Where any one or more of Borrowers or Guarantors are corporations,
partnerships, limited partnerships, limited liability partnerships, joint
ventures, trusts, limited liability companies, business organizations or
enterprises, it shall not be necessary for Bank to inquire into the power or
authority of Borrowers or Guarantors or the officers, directors, partners,
trustees or agents acting or purporting to act on their behalf.
Guarantors shall pay attorney's fees and all other costs and expenses
which are incurred by Bank in connection with the enforcement of this Guaranty.
No right or power of Bank hereunder shall be deemed to have been
waived by any act or conduct or failure or delay to act on the part of Bank or
any of its agents, employees or representatives; and the terms and provisions
hereof may not be waived, altered, modified, or amended except in writing duly
signed by a duly authorized officer of the Bank. In the event that Bank shall
waive in writing any provision or requirement hereunder, such waiver shall be
effective only for the specific purposes, circumstances and duration stated in
the waiver. Bank may without notice assign this Guaranty in whole or in part
and each reference herein to Bank shall be deemed to include its successors and
assigns. The provisions of the Guaranty are binding upon each of the Guarantors
and the heirs, distributees, executors, administrators, legal representatives,
personal representatives, successors and assigns thereof and shall inure to the
benefit of the Bank and each of its successors and assigns. THIS GUARANTY AND
THE RIGHTS AND OBLIGATIONS OF THE GUARANTORS AND THE BANK HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ALABAMA.
Each of the Guarantors acknowledges that any cause of action arising under this
Guaranty will be a cause of action arising from an Alabama transaction and that
the Indebtedness is owing to a banking organization organized under Alabama law
or that has its principal place of business in Alabama, that it is foreseeable
that this Guaranty and the performance hereof have and will have significant
effects in the State of Alabama, and that Guarantors' execution of this
Guaranty will subject Guarantors to judicial jurisdiction in the State of
Alabama. If any of the provisions of this
Page 2
Guaranty or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of the provisions of this
Guaranty, or the application of any provision or provisions to persons or
circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected thereby, and every provision of this
Guaranty shall be valid and enforceable to the fullest extent permitted by law.
EXCEPT AS EXPRESSLY SET FORTH IN THIS GUARANTY, THIS GUARANTY IS THE ENTIRE
AGREEMENT OF THE GUARANTORS AND THE BANK WITH RESPECT TO THE GUARANTEE OF THE
INDEBTEDNESS BY THE GUARANTORS AND NO REPRESENTATION, UNDERSTANDING, PROMISE OR
CONDITION CONCERNING THE SUBJECT MATTER HEREOF SHALL BE BINDING UPON THE BANK
UNLESS EXPRESSED HEREIN, AND NOTHING IN THIS GUARANTY SHALL BE EFFECTED BY
EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN
GUARANTORS AND BANK. There are no oral agreements between Guarantors and Bank.
Any notice by a Guarantor to the Bank shall be effective only upon the actual
receipt thereof by an officer of Bank at the address specified below, and in
the event no such address is specified, at Bank's principal corporate office in
Birmingham, Alabama, Attention: General Counsel.
This Guaranty is given under the seal of all parties hereto, and it is
intended that this Guaranty is and shall constitute and have the effect of a
sealed instrument according to law.
IN WITNESS WHEREOF, the undersigned Guarantors have executed this
Guaranty effective the 16TH day of JANUARY, 2003.
GUARANTORS:
/S/ Richard Bailey
--------------------------------------
BOYD BROTHERS TRANSPORTATION CO., INC.
BY: RICHARD BAILEY - CFO
STATE OF ALABAMA )
COUNTY OF HOUSTON )
I, Ann S. Barfield, a Notary Public in and for said County in said
State, hereby certify that Richard Bailey, whose name is known to me,
acknowledged before me on this day that, being informed of the contents of the
instrument, he executed the same voluntarily on the day the same bears date.
Given under my hand this 16 day of January, 2003.
Notary Public Ann S. Barfield
[NOTORIAL SEAL] My commission expires: May 26, 2004
Page 3