EXHIBIT 10.5
PROMISSORY NOTE
8-26-03
-------
(DATE)
FOR VALUE RECEIVED, BOYD BROS. TRANSPORTATION INC. a corporation located at the
address stated below ("MAKER") promises, jointly and severally if more than one,
to pay to the order of GENERAL ELECTRIC CAPITAL CORPORATION or any subsequent
holder hereof (each, a "PAYEE") at its office located AT 1000 WINDWARD CONCOURSE
SUITE 403, ALPHARETTA, GA 30005 or at such other place as Payee or the holder
hereof may designate, the principal sum of THREE HUNDRED NINETY EIGHT THOUSAND
TWO HUNDRED FIVE AND 00/100 DOLLARS ($398,205.00), with interest on the unpaid
principal balance, from the date hereof through and including dates of payment,
at a floating per annum simple interest rate ("Contract Rate") as hereinafter
calculated.
The Contract Rate for any given period ("Effective Period") following the first
Effective Period shall be equal to the sum of (i) two and fifty hundredths
percent (2.50%) per annum plus (ii) a variable per annum interest rate ("Current
LIBOR"), which shall be equal to the rate under the column indicating the one
month Eurodollar Deposits (London) ("LIBOR") as stated in the Federal Reserve
Statistical Release H.15 (519) published on the first Business Day of the
current month in which the applicable Effective Period ends. If, for any reason
whatsoever, the Federal Reserve Statistical Release H.15 (519) is no longer
published, the Current LIBOR shall be equal to the rate listed for LIBOR which
is published in the Money Rates Column of the Wall Street Journal, Eastern
Edition (or, in the event such rate is not so published, in such other
nationally recognized publication as Payee may specify) on the first Business
Day of the calendar month in which the applicable Effective Period ends. As used
herein, the term "Business Day" shall mean and include any calendar day other
than a day on which all commercial banks in the City of New York, New York are
required or authorized to be closed.
The first Effective Period shall begin on the date hereof, and shall continue
through the earlier of (w) the date the first Periodic Installment (or part
thereof) is received by Payee and (x) the date on which the first Periodic
Installment is due. Each subsequent Effective Period shall begin on the day
after the last day of the previous Effective Period and shall continue through
the earlier of (y) the date the earliest due and unpaid Periodic Installment (or
part thereof) is received by Payee and (z) the date on which the next Periodic
Installment is due. The Contract Rate for the first Effective Period shall be
equal to the sum of (i) two and fifty hundredths percent (2.50%) per annum plus
(ii) a variable per annum interest rate, which shall be equal to the rate listed
for LIBOR under the column indicating the such rate as stated in the Federal
Reserve Statistical Release H.15 (519) published as of the first Business Day of
the month in which the Effective Period ends.
Subject to the other provisions hereof, the principal and interest on this Note
is payable in lawful money of the United States in seventy two (72) consecutive
M installments as follows:
Periodic
Installment Amount
- ----------- ------
1 thru 71 $6,148.68
each ("Periodic Installment") and a final installment which shall be in the
amount of the total outstanding unpaid principal and interest. The first
Periodic Installment shall be due and payable on_______________________and the
following Periodic Installments shall be due and payable on the same day of each
succeeding period (each, a "Payment Date"). All payments shall be applied first
to interest and then to principal. The acceptance by Payee of any payment which
is less than payment in full of all amounts due and owing at such time shall not
constitute a waiver of Payee's right to receive payment in full at such time or
at any prior or subsequent time. Interest shall be calculated on the basis of a
365 day year (366 day leap year) and will be charged at the Contract Rate for
each calendar day on which any principal is outstanding.
The amount and number of the Periodic Installments will not change with
fluctuations in the Contract Rate. Any increase in the Contract Rate shall be
reflected by a corresponding decrease in the portion of the Periodic Installment
credited to the remaining unpaid principal balance. Any decrease in the Contract
Rate shall be reflected as a corresponding increase in the portion of the
Periodic Installment credited to the remaining unpaid principal balance.
Notwithstanding the foregoing, at the end of each three (3) month period
commencing with the first Payment Date hereof, Maker agrees to pay to Payee
forthwith an additional sum ("Quarterly Payment") sufficient to amortize the
unpaid principal over the balance of the original term hereof at the Contract
Rate applicable for the first Periodic Installment.
If, and for so long as, the amount of interest due exceeds the amount of the
Periodic Installment, Maker agrees to pay forthwith, in addition to (i) any
Periodic Installment then due and (ii) any Quarterly Payment, the amount by
which said interest exceeds the Periodic Installment. In the event interest only
is required to be paid during any period, the interest for such period shall be
due and payable monthly as it accrues and shall be calculated on the unpaid
principal balance existing at the commencement of such period.
The Maker hereby expressly authorizes the Payee to insert the date value is
actually given in the blank space on the face hereof and on all related
documents pertaining hereto.
This Note may be secured by a security agreement, chattel mortgage, pledge
agreement or like instrument (each of which is hereinafter called a "SECURITY
AGREEMENT").
Time is of the essence hereof. If any installment or any other sum due under
this Note or any Security Agreement is not received within ten (10) days after
its due date, the Maker agrees to pay, in addition to the amount of each such
installment or other sum, a late payment charge of five percent (5%) of the
amount of said installment or other sum, but not exceeding any lawful maximum.
If (i) Maker fails to make payment of any amount due hereunder within ten (10)
days after the same becomes due and payable; or (ii) Maker is in default under,
or fails to perform under any term or condition contained in any Security
Agreement, then the entire principal sum remaining unpaid, together with all
accrued interest thereon and any other sum payable under this Note or any
Security Agreement, at the election of Payee, shall immediately become due and
payable, with interest thereon at the lesser of eighteen percent (18%) per annum
or the highest rate not prohibited by applicable law from the date of such
accelerated maturity until paid (both before and after any judgment).
The Maker may prepay in full, but not in part, its entire indebtedness hereunder
upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the original principal balance for the
indicated period:
Prior to the first annual anniversary date of this Note: One percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any
Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury
laws; accordingly, it is agreed that, notwithstanding any provision to the
contrary in this Note or any Security Agreement, in no event shall this Note or
any Security Agreement require the payment or permit the collection of interest
in excess of the maximum amount permitted by applicable law. If any such excess
interest is contracted for, charged or received under this Note or any Security
Agreement, or if all of the principal balance shall be prepaid, so that under
any of such circumstances the amount of interest contracted for, charged or
received under this Note or any Security Agreement on the principal balance
shall exceed the maximum amount of interest permitted by applicable law, then in
such event (a) the provisions of this paragraph shall govern and control, (b)
neither Maker nor any other person or entity now or hereafter liable for the
payment hereof shall be obligated to pay the amount of such interest to the
extent that it is in excess of the maximum amount of interest permitted by
applicable law, (c) any such excess which may have been collected shall be
either applied as a credit against the then unpaid principal balance or refunded
to Maker, at the option of the Payee, and (d) the effective rate of interest
shall be automatically reduced to the maximum lawful contract rate allowed under
applicable law as now or hereafter construed by the courts having jurisdiction
thereof. It is further agreed that without limitation of the foregoing, all
calculations of the rate of interest contracted for, charged or received under
this Note or any Security Agreement which are made for the purpose of
determining whether such rate exceeds the maximum lawful contract rate, shall be
made, to the extent permitted by applicable law, by amortizing, prorating,
allocating and spreading in equal parts during the period of the full stated
term of the indebtedness evidenced hereby, all interest at any time contracted
for, charged or received from Maker or otherwise by Payee in connection with
such indebtedness; provided, however, that if any applicable state law is
amended or the law of the United States of America preempts any applicable state
law, so that it becomes lawful for the Payee to receive a greater interest per
annum rate than is presently allowed, the Maker agrees that, on the effective
date of such amendment or preemption, as the case may be, the lawful maximum
hereunder shall be increased to the maximum interest per annum rate allowed by
the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such
person, other than the Maker, an "OBLIGOR") who may at any time become liable
for the payment hereof jointly and severally consent hereby to any and all
extensions of time, renewals, waivers or modifications of, and all substitutions
or releases of, security or of any party primarily or secondarily liable on this
Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and
maintained against any one or more of them, at the election of Payee without
joinder of any other as a party thereto, and that Payee shall not be required
first to foreclose, proceed against, or exhaust any security hereof in order to
enforce payment of this Note. The Maker and each Obligor hereby waives
presentment, demand for payment, notice of nonpayment, protest, notice of
protest, notice of dishonor, and all other notices in connection herewith, as
well as filing of suit (if permitted by law) and diligence in collecting this
Note or enforcing any of the security hereof, and agrees to pay (if permitted by
law) all expenses incurred in collection, including Payee's actual attorneys'
fees. Maker and each Obligor agrees that fees not in excess of twenty percent
(20%) of the amount then due shall be deemed reasonable.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS
NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS AND/OR THE RELATIONSHIP THAT IS
BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED
TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
(INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS
IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND
THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT
OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
This Note and any Security Agreement constitute the entire agreement of the
Maker and Payee with respect to the subject matter hereof and supercedes all
prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its
provisions or conditions, shall be valid unless in writing and signed by an
authorized representative of Maker and Payee. Any such waiver, consent,
modification or change shall be effective only in the specific instance and for
the specific purpose given.
Any provision in this Note or any Security Agreement which is in conflict with
any statute, law or applicable rule shall be deemed omitted, modified or altered
to conform thereto.
BOYD BROS. TRANSPORTATION INC.
____________________________ By: -s- Richard Bailey
(Witness) ----------------------------
____________________________ Name: Richard Bailey
(Print name)
____________________________ Title: CFO
(Address)
Federal Tax ID #: 636006515
Address: 3275 Highway 30, Clayton, Harbour
County, AL 36016
COLLATERAL SCHEDULE NO. 005
THIS COLLATERAL SCHEDULE NO. 005 is annexed to and made a part of that certain
Master Security Agreement dated as of May 21, 2002 between General Electric
Capital Corporation, together with its successors and assigns, if any, as
Secured Party and BOYD BROS. TRANSPORTATION INC. as Debtor and describes
collateral in which Debtor has granted Secured Party a security interest in
connection with the Indebtedness (as defined in the Security Agreement)
including without limitation that certain Promissory Note dated 8-26-03 in the
original principal amount of $398,205.00.
QUANTITY MANUFACTURER SERIAL NUMBER YEAR/MODEL AND TYPE OF EQUIPMENT
- -------- ------------ ------------- --------------------------------
1 Fontaine Trailer Company 13N14830341519414 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830541519415 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830741519416 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830941519417 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830041519418 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830241519419 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830941519420 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830041519421 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830241519422 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830441519423 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830641519424 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N148308415I9425 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830X41519426 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830141519427 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830341519428 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830541519429 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830141519430 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830341519431 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830541519432 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830741519433 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830941519434 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830041519435 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830241519436 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830441519437 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830641519438 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830841519439 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830441519440 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830641519441 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830841519442 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830X41519443 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830141519444 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830341519445 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830541519446 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830741519447 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830941519448 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830041519449 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830741519450 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830941519451 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830041519452 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830241519453 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830441519454 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830641519455 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830841519456 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830X41519457 2004 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830141519458 2004 IFTW-6-8048WSAWK Platform Trailer
Equipment immediately listed above is located at: 2718 Campbell Blvd.,
Ellenwood, Henry County, GA 30294
and including all additions, attachments, accessories and accessions thereto,
and any and all substitutions, replacements or exchanges therefor, and all
insurance and/or other proceeds thereof.
Debtor is and will remain in full compliance with all laws and regulations
applicable to it including, without limitation, (i) ensuring that no person who
owns a controlling interest in or otherwise controls Debtor is or shall be (Y)
listed on the Specially Designated Nationals and Blocked Person List maintained
by the Office of Foreign Assets Control ("OFAC"), Department of the Treasury,
and/or any other similar lists maintained by OFAC pursuant to any authorizing
statute, Executive Order or regulation or (Z) a person designated under Section
l(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related
enabling legislation or any other similar Executive Orders, and (ii) compliance
with all applicable Bank Secrecy Act ("BSA") laws, regulations and government
guidance on BSA compliance and on the prevention and detection of money
laundering violations.
SECURED PARTY: DEBTOR:
GENERAL ELECTRIC CAPITAL CORPORATION BOYD BROS. TRANSPORTATION INC.
By:__________________________________ BY: -s- Richard Bailey
--------------------------
Name:________________________________ Name: Richard Bailey
Title:_______________________________ Title: CFO
Date:________________________________ Date: 8-26-03
ANNEX A
TO
COLLATERAL SCHEDULE NO. 005
TO MASTER SECURITY AGREEMENT
DATED AS OF MAY 21, 2002
CERTIFICATE OF DELIVERY/INSTALLATION
To: General Electric Capital Corporation (together with its successors and
assigns, if any, "SECURED PARTY")
Pursuant to the provisions of the above Collateral Schedule to the
above Master Security Agreement and the related Promissory Note (collectively,
the "LOAN"), the undersigned ("DEBTOR") hereby certifies and warrants that (a)
all Equipment listed below has been delivered and installed (if applicable); (b)
the Debtor has inspected the Equipment, and all such testing as it deems
necessary has been performed by Debtor, Supplier or the manufacturer; (c) Debtor
has found all such Equipment to be satisfactory and meets all applicable
specifications and is fully operational for its intended use; and (d) the
Equipment was first delivered to Debtor on 8-26-03 and copies of the Bill(s) of
Lading or other documentation acceptable to Secured Party which show the date of
delivery are attached hereto.
NUMBER
OF UNITS MANUFACTURER SERIAL NUMBERS MODEL AND TYPE OF EQUIPMENT
- -------- ------------ -------------- ---------------------------
1 Fontaine Trailer Company 13N14830341519414 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830541519415 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830741519416 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830941519417 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830041519418 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830241519419 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830941519420 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830041519421 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830241519422 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830441519423 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830641519424 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N148308415I9425 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830X41519426 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830141519427 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830341519428 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830541519429 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830141519430 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830341519431 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830541519432 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830741519433 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830941519434 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830041519435 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830241519436 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830441519437 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830641519438 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830841519439 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830441519440 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830641519441 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830841519442 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830X41519443 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830141519444 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830341519445 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830541519446 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830741519447 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830941519448 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830041519449 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830741519450 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830941519451 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830041519452 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830241519453 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830441519454 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830641519455 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830841519456 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830X41519457 IFTW-6-8048WSAWK Platform Trailer
1 Fontaine Trailer Company 13N14830141519458 IFTW-6-8048WSAWK Platform Trailer
Equipment immediately listed above is located at: 2718 Campbell Blvd.,
Ellenwood, Henry County, GA 30294
BOYD BROS. TRANSPORTATION INC.
By: -s- Richard Bailey
-------------------
Name: Richard Bailey
Title: CFO
Date: 8-26-03
Date August 13, 2003
General Electric Capital Corporation
1000 Windward Concourse Suite 403
Alpharetta, GA 30005
Gentlemen:
You are hereby irrevocably authorised and directed to deliver and apply
the proceeds of your loan to the undersigned evidenced by that Note dated
8-26-03 and secured by that Security Agreement or Chattel Mortgage dated May 21,
2002, as follows:
Fontaine Trailer Company $398,205.00
This authorization and direction is given pursuant to the same
authority authorizing the above-mentioned borrowing.
Very truly yours,
BOYD BROS. TRANSPORTATION INC.
By: -s- Richard Bailey
-------------------
Name: Richard Bailey
Title: CFO
BOYD BROS. TRANSPORTATION INC.
3275 Highway 30
Clayton, AL 36016
RE: AMENDMENT ON SELF-INSURANCE
Gentlemen:
This letter is written in connection with our chattel mortgage, security
agreement or lease agreement ("CONTRACT"), dated as of May 21, 2002, and the
collateral or equipment described therein ("EQUIPMENT"). We hereby propose to
amend the Contract as follows:
Anything in the Contract to the contrary notwithstanding, it is agreed that you
shall have the right, at your sole risk and expense, to self-insure the
Equipment against the risk of loss or damage. However, if at any time the
undersigned shall reasonably deem itself insecure with such self-insurance, then
you agree, upon receipt of notice from the undersigned, to obtain insurance
against such risk from companies acceptable to the undersigned as required by
the Contract.
Except as expressly amended hereinabove, the Contract would remain in full force
and effect. Nothing in this letter shall be deemed to be a waiver of any
liability insurance coverage that may be required by the Contract and, to the
extent that such coverage is required by the Contract, it is agreed and
understood that you must, at your sole cost and expense, obtain such coverage
from companies acceptable to the undersigned.
If the foregoing is acceptable, please evidence your consent by executing in the
appropriate space provided below and returning the fully executed copy to the
undersigned.
Very truly yours,
By:__________________________
Name:________________________
Title:_______________________
AGREED TO AND ACCEPTED
BOYD BROS. TRANSPORTATION INC.
By: -s- Richard Bailey
------------------
Name: Richard Bailey
Title: CFO
Date:_________________
CROSS-COLLATERAL AND CROSS-DEFAULT AGREEMENT
General Electric Capital Corporation
1000 Windward Concourse Suite 403
Alpharetta, GA 30005
Gentlemen:
You (and/or your successors or assigns, "YOU") have entered into or
purchased one or more conditional sale contracts, lease agreements, chattel
mortgages, security agreements, notes and other choses in action (herein
designated "ACCOUNTS") arising from the bona fide sale or lease to us, by
various vendors or lessors, of equipment and inventory (herein designated
"COLLATERAL") and/or you have made direct loans to or otherwise extended credit
to us evidenced by Accounts creating security interests in Collateral.
In order to induce you to extend our time of payment on one or more
Accounts and/or to make additional loans to us and/or to purchase additional
Accounts and/or to lease us additional equipment, and in consideration of you so
doing, and for other good and valuable consideration, the receipt of which we
hereby acknowledge, we agree as follows:
All presently existing and hereafter acquired Collateral in which you
have or shall have a security interest shall secure the payment and performance
of all of our liabilities and obligations to you of every kind and character,
whether joint or several, direct or indirect, absolute or contingent, due or to
become due, and whether under presently existing or hereafter created Accounts
or agreements, or otherwise.
We further agree that your security interest in the property covered by
any Account now held or hereafter acquired by you shall not be terminated in
whole or in part until and unless all indebtedness of every kind, due or to
become due, owed by us to you is fully paid and satisfied and the terms of every
Account have been fully performed by us. It is further agreed that you are to
retain your security interest in all property covered by all Accounts held or
acquired by you, as security for payment and performance under each such
Account, notwithstanding the fact that one or more of such Accounts may become
fully paid.
This instrument is intended to create cross-default and cross-security
between and among all the within described Accounts now owned or hereafter
acquired by you.
A default under any Account or agreement shall be deemed to be a
default under all other Accounts and agreements. A default shall result if we
fail to pay any sum when due on any Account or agreement, or if we breach any of
the other terms and conditions thereof, or if we become insolvent, cease to do
business as a going concern, make an assignment for the benefit of creditors, or
if a petition for a receiver or in bankruptcy is filed by or against us, or if
any of our property is seized, attached or levied upon. Upon our default any or
all Accounts and agreements shall, at your option, become immediately due and
payable without notice or demand to us or any other party obligated thereon, and
you shall have and may exercise any and all rights and remedies of a secured
party under the Uniform Commercial Code as enacted in the applicable
jurisdiction and as otherwise granted to you under any Account or other
agreement. We hereby waive, to the maximum extent permitted by law, notices of
default, notices of repossession and sale or other disposition of collateral,
and all other notices, and in the event any such notice cannot be waived, we
agree that if such notice is mailed to us postage prepaid at the address shown
below at least five (5) days prior to the exercise by you of any of your rights
or remedies, such notice shall be deemed to be reasonable and shall fully
satisfy any requirement for giving notice.
All rights granted to you hereunder shall be cumulative and not
alternative, shall be in addition to and shall in no manner impair or affect
your rights and remedies under any existing Account, agreement, statute or rule
of law.
This agreement may not be varied or altered nor its provisions waived
except by your duly executed written agreement. This agreement shall inure to
the benefit of your successors and assigns and shall be binding upon our heirs,
administrators, executors, legal representatives, successors and assigns.
IN WITNESS WHEREOF, this agreement is executed this 26 day of August,
2003.
BOYD BROS. TRANSPORTATION INC.
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(Name of Proprietorship, Partnership or
Corporation, as applicable)
BY: /s/ Richard Bailey
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(Signature)
Title: CFO
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(Owner, Partner or Officer, as applicable)
Address: 3275 Highway 30, Clayton, AL 36016